YLR 2012 Judgments

2012 Y L R 325

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, Syed Afzal Haider and Shahzado Shaikh, JJ

IMRAN ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.207/L, 208/L and 209/L of 2007 and Murder Reference No.2/L of 2008, decided on 8th March, 2011.

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

----Art. 46---Dying declaration---Scope and object---Article 46 of Qanun-e-Shahadat, 1984, enumerated eight exceptions to the general rule in relation to a statement whose maker was since dead---Such exceptions were that maker of the statement was dead; that the dying declaration was relevant whether or not its maker was under expectation of death; that the maker of declaration was a competent witness; that the declaration could be oral or in writing or even by way of meaningful gestures; that, if it was available in written form then the identity of the scribe, and the circumstances under which it was written or dictated, could be proved; that testimony of a living person about the pronouncement made by a dead person had to be accepted with due care and caution in the given circumstances of the case; that the declaration related in fact to the cause of death or any of the circumstances resulting in the death; that it was otherwise believable like the testimony of any other witness, entire object of such exercise was to ascertain the whole truth possible under the prevailing circumstances.

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

----Art. 46---Difference between 'testimony' and a 'dying declaration'---Basic difference between testimony and a dying declaration was that the law did not make it obligatory for dying declaration that the statutory procedure prescribed for a formal deposition in a court of law be observed; other point of difference was that dying declaration was not tested on the touchstone of cross-examination; and thus it belonged to a special category of evidence---In case of any intrinsic inconsistency in the text of the declaration; or with attending circumstances, the courts would look for some corroboration, because such a declaration was usually made in the absence of accused---Possibility of fading had also to be ruled out---Like the statement of an interested witness it would require close scrutiny essentially for the reason that its acceptance could result in the award of capital punishment---Only by operation of law such a piece of evidence was declared to be relevant.

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

----Art. 46---Dying declaration---Admissibility---Scope---Dying declaration could not only incriminate its maker, but such a statement would be admissible against all those persons who were allegedly involved in the episode which ultimately resulted in the unnatural death of the maker---Dying declaration could not be refused on the sole ground that there was delay in recording the same considerations would be the injured person in a position to give a statement and what was his orientation to the time, place and person at the time the statement was recorded---Even gestures, which conveyed the message clearly, could be acted upon in given circumstances---Dying declaration was proved, at the trial by the evidence of a witness who heard it being made by the deceased, or by the evidence of a person who recorded it and scribe must appear and be available for cross-examination.

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

----Art. 46---Criminal Procedure Code (V of 1898), S.174-A---Grievous injury by burn---Dying declaration by victim---Scope---Obligation of Police and Medical Officer---Category of a dying declaration made consequent upon grievous injuries caused by burn through fire, Kerosine oil, acid, chemical or by any other way, had assumed a peculiar significance---Law and judicial practice relating to dying declaration was almost settled inasmuch as that; it could be oral or in writing; it was made after injuries had been inflicted and before death of the victim; it was not necessary to administer oath before statement was offered by the declarant; the presence of accused was also not essential; the declaration could be heard or recorded by anyone present at the spot; no particular form of recording a dying declaration had been prescribed, however, reliability of such a declaration was dependant upon attending circumstances---By way of addition of S.174-A, Cr.P.C., a dying declaration within the circumstances mentioned therein, had received a different dimension---Special obligation had been imposed upon the Police and Medical Officer to act in the prescribed manner as and when a person injured by burns etc. was brought before them.

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

----Art. 46---Recording of dying declaration by Investigating Officer---Admissibility---Principles---Police Officer should not be encouraged to record dying declaration in a case where he was investigating himself; he could have been influenced by the course of events in favour of one or the other party---Situation could arise when the Medical Officer was not readily available and the witnesses were either not present at the spot or if accessible around the victim, yet they were unable to record the statement; in such an eventuality the Police Officer could, instead of relying upon mere memory, take down notes, or could even record the actual spoken words or gestures of the victim---Document so prepared could then be proved by the scribe formally during the trial, subject to scrutiny in cross-examination.

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

----S. 156---Police investigation---Purpose of Police investigation was to collect evidence for enabling the court to arrive at a just decision---Court was to accept or discard the evidence---Investigating Officer had no right to suppress evidence; it was dereliction of duty.

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

----Art. 161---Criminal Procedure Code (V of 1898), Ss.265-F & 540---Power of Court to put questions or order production---Courts under Art.161 of Qanun-e-Shahadat, 1984, had the power to put questions or order production of necessary evidence---Trial Court in that case could have such power under S.540, Cr.P.C.---By not invoking said legal provisions in the demanding circumstances of the case would be miscarriage of justice---Under clause (2) of S.265-F, Cr.P.C., the court was under an obligation to ascertain from the Public Prosecutor or the complainant the names of persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and thereafter, summon such person to give evidence before it---Said provision was not simply a procedural step, but it manifested a positive intent to advance the cause of justice for meeting a situation when any material evidence was left out for whatever motive in court, with the assistance of the State Counsel, in such cases, would admit relevant material in evidence at a later stage and summon concerned witnesses in that regard---Court would not do what the statute expressly forbade---Neither consent nor waiver, could justify action which was legally forbidden, but that would not mean that one should turn a blind eye or a deaf ear to the stipulated provisions which enabled a court to exercise judicial discretion for the purpose of admitting evidence for safe administration of justice---Duty of the court was to administer even handed justice---Court on the basis of judicial and legal experience and knowledge, makes conscious effort to discover the truth wherever it was called upon to decide a case---Court was not required to act mechanically by confining itself to the evidence produced by the Police Officers along with the report prepared under S.173, Cr.P.C.

Muhammad Murad Abro v The State through A.G. Balochistan 2004 SCMR 966; Maqbool v The State 2006 PCr.LJ 110; Mehboob v The State and 3 others 1989 PCr.LJ 2050; Rehmat Ali v. The State and another 2005 YLR 742; Muhammad Niaz Khan v The State 2000 MLD 1419 and The State v. Iftikhar Hussain 2002 P.Cr.L.J 85 rel.

(h) Criminal trial---

----Presumption of innocence and guilt---Accused was presumed to be innocent till he was proved to be guilty---Law and judicial conscience, demanded that the prosecution prove all facts which were compatible with the guilt of accused and incompatible with his innocence---Guilt of accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt could irresistibly be drawn from the evidence---Duty of the court was certainly to administer justice, but the court would be loath to legalize injustice on technical grounds.

Amrood Khan v. The State 2002 SCMR 1568 rel

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

----Ss. 302(b)/34 & 376---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Criminal Procedure Code (V of 1898), S.265-C(1)(d)---Qatl-e-amd, rape, zina-bil-jabr---Appreciation of evidence---Benefit of doubt---F.I.R. in the case could not have possibly indicated the misfortune that struck the victim after abduction, but the complaint in the case was lodged quite some time after the return of the victim---Such secretiveness added to the magnitude of suspicion---Case was of elopement, but in order to hold a person guilty there must be reliable evidence to establish the ingredient of the offence, with which an accused was charged---Where more than one persons were charged to face trial in a case involving capital punishment and imprisonment for life, it was essential to establish the active and specific role of each participant---Sweeping statement about the guilt of accused was not a substitute for conclusive proof---Even a single doubt in a prudent mind was sufficient to empower accused to claim benefit of doubt which was his right and was not a matter of grace on the part of the Trial or an Appellate Court---Submission of charge sheet i.e. the report under S.173, Cr.P.C. in a Police case before the Trial Court, was indicative of the view point, whether an offence had been committed---Final investigation report, in the present case, suggested that the inculpatory material had been collected during the investigation which led the Investigating Agency to the conclusion that the necessary probe had been completed and it had borne fruit and the entire material had been disclosed in the basic charging document---Statement of the victim recorded by court witness under S.161, Cr.P.C. was neither annexed with the report under S.173, Cr.P.C. nor was its copy supplied to accused as required under S.265-C(1)(d), Cr.P.C. which was a mandatory provision---Accused had a right to receive the copy and that right could not be denied---Non-compliance with said provision had caused prejudice to the accused---Object of S.265-C(1)(d), Cr.P.C. was to fill the vacuum created by the abolition of commitment proceedings---Accused under said provision had right to know the basis of case against him---Dying declaration, was neither signed by any scribe nor it bore date and time of its recording---Chain of events pertaining to the contaminated swabs had been miserably broken by the prosecution party itself---Police Agency had consciously placed an umbrella of doubt as regard the factum of swabs---Corroborative value that said important link could have provided had been demolished---Benefit of doubt was granted to accused persons in view of compelling suspicions---Convictions and sentences recorded against accused persons by the Trial Court, were set aside---Accused were acquitted of the charges levelled against them and they were released, in circumstances.

Ejaz Hussain and 2 others v The State 1971 SCMR 516; Majeed v The State 2010 SCMR 55; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Abdul Sattar alias Muhammad Ilyas v. The State 2007 YLR 1138; Badar Shehzad and another v The State and another 2007 PCr.LJ 1036; Murtaza and others v The State 2007 PCr.LJ 1192; Ali Zar v. Shah Khalid and another 2008 PCr.LJ 1655; Noor Muhammad v. The State 2009 PCr.LJ 797; Arbab Tasleem v The State PLD 2010 SC 642; B. Shashikala v. State of Andhra Pradesh AIR 2004 SC 1610; Ravikumar alias Kutti Ravi v. State of Tamil Nadu AIR 2006 SC 1448; Shakuntala v. State of Haryana AIR 2007 SC 2709; Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. AIR 2008 SC 19; Dashrath alias Champa and others v. State of Madhya Pradesh AIR 2008 SC 316 and Antram v. State of Maharashtra AIR 2008 SC 409 ref

Tariq Parvez v The State 1995 SCMR 1345; 2002 PCr.LJ 34; 2002 PCr.LJ 1312; Khuda Bux v The State 2002 YLR 2160; Muhammad Mahboob v The State PLD 2002 Lah 587; Safeer v The State 2003 YLR 1861 and Shah Maisar v. State PLD 2003 Pesh. 84 ref

Shahid Qayyum Chaudhry for Appellant (in Criminal Appeal No.207/L of 2007)

Shahid Zaheer Syed for Appellant (in Criminal Appeal No.208/L of 2007)

Shawar Khilji and Mureed Ali S.M. Bhutta for Appellants (in Criminal Appeal No.209/L of 2007)

Safdar Javed Chaudhry for the Complainant

Ch. Muhammad Ishaque Deputy Prosecutor-General for the State

Date of hearing: 14th February, 2011.

2012 Y L R 387

[Federal Shariat Court]

Before Agha Rafiq Ahmad Khan, C.J.

MUHAMMAD QAISAR and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.281/I of 2011 and Jail Criminal Appeal No.32/I of 2011, decided on 28th November, 2011.

Penal Code (XLV of 1860)---

----S. 392---Robbery---Appreciation of evidence---F.I.R. was lodged immediately after the incident by the complainant---Ages as well as physical features of both the accused persons were given in the---F.I.R.---Though private witnesses had not been associated in the case, but outrightly, the evidence of the Police witnesses could not be discarded only on the ground that they were Police Officials, unless strong reasons were available to believe that they might have falsely involved the accused persons---Eye-witness and the victim had picked both accused persons out of fifteen persons in identification parade---Complainant as well as his son and other witnesses were put to lengthy cross-examinations, but nothing favourable to the defence came out of them---No reason was available to believe that complainant's son might have involved accused persons falsely at the instance of Police, as neither the Police personnel nor the complainant party had any grudge against accused persons---Snatched articles were also recovered on the pointation of accused from the possession of accused---Trial Judge had fully discussed the evidence on record as well as the defence plea taken by accused persons; and had given cogent reasons for arriving to the conclusion that accused were found guilty---Accused persons in their statements under S.342, Cr.P.C. had merely denied the allegations and had stated that they had been falsely involved in the case---Accused did not even examine themselves on the oath in their defence---Prosecution had fully proved the charge against accused persons---Minor contradictions and irregularities, if any, in the case, would not help accused persons---Interference in the findings of the Trial Court were declined by Federal Shariat Court.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; Ghulam Rasul and 3 others v The State 1988 SCMR 557; Ejaz Ali v. The State 2008 PCr.LJ (F.S.C) 1012; Bacha Zeb and Ghulam Jan v. The State 2010 SCMR 1189 and Tahir Hussain v. The State 2010 YLR 140 ref.

Atif Ali Jadoon and Aftab Ahmed Khan for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 16th November, 2011.

2012 Y L R 613

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

INAYAT and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.45/I of 2010, decided on 9th September, 2011.

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

----S. 20---Penal Code (XLV of 1860), Ss.395, 411, 458 & 149---Haraabah, dacoity, dishonestly receiving stolen property and lurking house-trespass---Appreciation of evidence---Delay of 8 days in lodging F.I.R. had not been explained fully and description of accused persons had not been mentioned in the F.I.R.---Identification test of accused persons in such situation became necessary, but same was not conducted---Holding of identification parade could not be dispensed with, simply because accused had subsequently been found in possession of robbed articles---Recovery of crime pistol from accused persons, was doubtful as recovery was not made in the presence of any independent witness nor the specification as to the weapons allegedly used in the commission of offence was given in the F.I.R. and supplementary statement---Complainant had not explained role played by accused during incident---Names of accused persons did not appear in the F.I.R.---Many improvements had been made by the complainant at the time of his supplementary statement for involving accused persons in the case---No reliance could be placed on such type of statements---Evidence in respect of said four accused persons was also not established---Allegation against said accused persons that they were present at the place of occurrence, seemed to be incorrect---Three male members, besides ladies and children were present on the spot, but none of them made hue and cry when accused left that spot---Despite the fact that alleged accused had been living in the neighbourhood, but they had not been identified during occurrence by said inhabitants; and they did not make any struggle to save their house from robbery---Offence of Haraabah under S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under Ss.395, 458/149, P.P.C., had not been proved against said four accused persons from the evidence available on record---Accused, in circum-stances, were acquitted by giving them the benefit of doubt, they should be released.

Falik Sher v. The State 1995 SCMR 1350; Muhammad Tahir v. The State 2008 YLR 2669; Nasir Mehmood v. The State 2008 YLR 1755; Farhan Ali v. The State 1997 SCMR 971; Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Luqman v. The State 1989 MLD 1708 and Bahadar Khan v. The State 1971 SCMR 955 ref.

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

----S. 20---Penal Code (XLV of 1860), Ss.395, 411, 458 & 149---Haraabah, dacoity, dishonestly receiving stolen property and lurking house-trespass---Appreciation of evidence---Sufficient evidence linking accused with the offence was available on the record---Assertion of the complainant was duly corroborated by the robbed gold ornaments which were traced to have been sold by the fifth accused with his companion to the gold smith---House-trespass, dacoity or Haraabah, was vocation of hardened criminals and historically and in criminology those crimes were treated as heinous by all important religious and secular legal systems, in such offences, offenders were always, fully armed and could go to any extent, including murder---Accused was nominated, charged and linked with the stolen property and he was also named by independent witness, with whom no enmity was claimed---Conviction and sentence of said accused as awarded by the Trial Court for offences under S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Ss.395, 411, 458/149, P.P.C., were maintained---Benefit under S.382-B, Cr.P.C. as allowed by the Trial Court was maintained---Sentences would run con-currently.

Talat Mehmood Ziaid and Qausian Faisal Mufti for Appellants.

Muhammad Saleem Mardan for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 9th September, 2011.

2012 Y L R 652

[Federal Shariat Court]

Before Shahzado Shaikh, ACJ and Rizwan Ali Dodani, J

MAZHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.15/L and Jail Criminal Appeal No.8/I of 2009, decided on 27th September, 2011.

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

----S.10---Zina-bil-jabr---Appreciation of evidence---Minor girl aged 9/10 years was forcibly subjected to sexual intercourse by accused---Complainant, In promptly lodged F.I.R. had levelled allegation of zina-bil-jabr with her minor daughter by the accused---Prosecution witness had fully supported the version of the complainant---Said witness was cross-examined, but no material question was put to him in order to establish innocence of accused---Victim girl though was of tender age at the relevant time, but she gave full account of occurrence in her statement by testifying allegation of zina-bil-jabr by the accused---Veracity of victim in cross-examination could not be shattered which showed that she had given true account as there was no possibility to tutor her---Lady Doctor who examined the victim, had opined that victim was subjected to sexual assault and report of Chemical Examiner was also positive---Ocular account, medical evidence and statement of victim, were all in line with each other and were sufficient to prove the allegations levelled against accused---Prosecution witness was an independent witness from the village concerned and in such cases of zina-bil-jabr, it was not matter of high probability that more witnesses would be available---For a minor victim girl, her father was the most natural and legally responsible person (Wali) to stand witness for her for the sake of God, as a duty and in their own interest---Claim that no sign of violence on the body of the victim was reported, had no material weight---To violate a minor girl's chastity to bleed, in itself was an appalling sign of violence on her innocent person, so much so that she suffered hospitalization for stitching under general anesthesia---Investigating Officer having died after presenting the challan, his report, writings, signatures etc. all were verified by the Police Officer working, closely with him in the same Police Station, without any ambiguity, contradiction, or even any suggestion or question from the defence---DNA test was not needed in the case, as only one accused was involved and his offence had been established from the prosecution evidence, duly corroborated on record---Accused himself had also not demanded DNA test, grouping or matching---Prosecution had fully proved its case beyond any shadow of doubt---Solitary statement of the victim in such cases, was sufficient to prove prosecution case, especially when she had given unimpeachable evidence against accused detailing specific act of zina-bil-jabr---Counsel for accused requested for reduction of sentence of accused on the plea that accused was first offender young man, but he had not been able to point out proper mitigating circumstance in favour of reduction of sentence---Incident was an occurrence of shocking nature with a little girl of 9/10 years, who was subjected to such brutality that she remained in precarious condition and was admitted in hospital for about nine days---Trial Court, in circumstances, had rightly convicted and sentenced accused and impugned judgment merited no interference.

PLD 1958 Dacca 11; 1997 PCr.LJ 556 (FSC); 1986 SCMR 122 and PLD 2011 SC 554 ref

(b) Words and phrases---

----"Mitigating", meaning and scope.

PLD 1974 SC 266 and PLD 2007 SC 87 rel

Syed Sajjad Sarwar Gillani for Appellant (in Criminal Appeal No.15/L of 2009)

Muhammad Yasin for the Complainant (in Criminal Appeal No.15/L of 2009)

Mian Muhammad Awais, Deputy Prosecutor General for the State.

Date of hearing: 27th September, 2011.

2012 Y L R 695

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

MUHAMMAD JAVED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.70/L of 2010, decided on 8th September, 2011.

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

----Ss. 10(3) & 11---Zina-bil-jabr and abduction---Appreciation of evidence---Victim reported the matter to Police immediately after her recovery/return---Plea taken by accused that he contracted marriage with the victim after she was divorced by her previous husband, having not been proved, same had no legal value---Accused had filed a suit for restitution for conjugal rights against the victim just to add credulity to his false claim of nikah with the victim; and in order to make it gullible, one-sided story of compromise was added so that the false suit for restitution of conjugal rights could be rolled back before facts were unfolded before the Trial Court---Forged claim of nikah, false suit for restitution of conjugal rights and its withdrawal on false claim of compromise, added strength to the charge that while the victim was kept by accused, she was subjected to illicit sexual intercourse; and all that trickery by accused was to cover up the crime in some paper work---If there was any grain of truth in the claim of nikah, he would have without any loss of time produced the nikahnama, the Nikahkhawan/Registrar and the record and record-keeper of the Union Council in that regard during trial, but he did not do that---Accused had been proved to have committed offence of abduction and thereafter zina-bil-jabr with her, as claimed by the victim---Accused submitted Nikahnama before the High Court at appellate stage, which on the face of it spoke of forgery---Solitary statement of victim, in each case had to be properly evaluated in such circumstances---Analysis of the charges and appreciation of evidence, had shown that all the ingredients of S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were present in the case----Case against accused having stood proved beyond any shadow of reasonable doubt, he was rightly convicted and sentenced by the Trial Court.

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

----Ss.10(3) & 11---Zina-bil-jabr and abduction---Appreciation of evidence---Judicious appreciation of evidence could not be ensured, particularly as required under the concepts of 'adl' (to apportion, appropriate and assign the due to each) and 'qist' (to precisely divide), in vacuum; or just within the shielded shell of the offence or network at the crime, in such cases---Circumstances could necessitate to view the occurrence on bigger screen or canvas---Gender bias, and social vulnerability, aggravated by poverty and illiteracy, had to be properly analysed, in each case and circumstance, to see, whether social milieu was pulling the pane of scales against the female victim, while demanding a number of eye-witnesses, in unequal and technical contest of unseen occurrence.

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

----Ss.10 & 11---Zina-bil-jabr and abduction---Appreciation of evidence---Denial of offence---Offence could not merely be denied on the point that the place of occurrence was within thickly-populated area and same could not be adopted as a thumb rule---Offenders could easily create their own peculiar shields within urban depth, slum clusters and population thickness.

Syed Faiz-ul-Hassan, Imtiaz Hussain Khan Baloch and Talib Hussain Azad for Appellant

Karim Nawaz Abbasi for the Complainant.

Ch. Muhammad Sarwar Sidhu, Add: Prosecutor-General Punjab for the State.

Date of hearing: 8th September, 2011.

2012 Y L R 752

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

JAHAN ZEB and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.139/L of 2007, decided on 29th July, 2011.

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

----S. 12---Penal Code (XLV of 1860), S.377---Criminal Procedure Code (V of 1898), S.345---Sodomy---Appreciation of evidence---Sentence, reduction in---Occur-rence was not un-witnessed as submitted on behalf of accused persons---Comp-lainant had consistently deposed against accused persons---Medical evidence had supported the allegation that the victim who was deaf and dumb, was subjected to unnatural offence---Lengthy cross-exami-nation of complainant did not shake his credibility---No material was on record to show that the complainant had substituted accused persons for real culprits---Substitution was a rare phenomenon---Testimony of prosecution witness was confidence inspiring---Accused had not proved any enmity to attach some motive---Complainant had no enmity or ill-will against accused persons, so as to falsely involve them on the charge of that nature, to put at stake the honour of his son and his entire family for life---Accused were directly charged in the report for having committed the act of unnatural offence with a minor of about 11 years---Statement of victim was duly corroborated by medical evidence; and any suggestion for any motive for false implication, hardly appealed to reason---Prosecution had been able to prove the case against accused beyond any reasonable shadow of doubt---Defence had failed to bring anything on record to consider that complainant had fabricated a false story for any annoyance or ill-will against accused---Conviction of accused persons under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under S.377, P.P.C. awarded by the Trial Court, was maintained, in circumstances---Comp-lainant, though had compromised with accused persons, but offence against accused persons was not compoundable---Accused persons were young men and were first offenders and bread-earners for their families---Conviction and sentence as awarded to accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to 10 years' R.I. with fine, was maintained, but while maintaining his conviction under S.377, P.P.C., his sentence was reduced from life imprisonment to 10 years' R.I., with fine---Conviction of co-accused under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was also maintained, but his sentence was modified from 10 years' R.I. to the terms already undergone, with fine.

Muhammad Awais Khurram for Appellants.

Ch. Muhammad Ishaq, Deputy Prosecutor General for the State.

Date of hearing: 29th July, 2011.

2012 Y L R 847

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.138/I of 2009 and Criminal Murder Reference No.4/I of 2011 decided on 25th October, 2011.

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

----S. 376---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble & S.10---Commission of illegitimate sexual intercourse---Crime and punishment in Islam---Islam had regarded commission of illegitimate sexual intercourse a very great sin and heinous crime---If proved guilty, Islam had prescribed severe punishment for such criminals---Islam considered both fornication as well as adultery equally serious offences and made no distinction between the two in their nature as offences against human society---Gravity as well as the sentences of the offence, however, varied according to the marital status of the offender---If the offender was unmarried, the quantum of punishment was somewhat less than that of the married one---Offence in the latter case was considered more severe for the reason that legitimate means to satisfy his urge were available to such a person, but even then he preferred and resorted to unlawful means---Since according to Islamic Injunctions, the commission of zina was a cognizable crime, it had not only prescribed severe punishment, but had introduced a number of reformative and preventive means as well---Legal sanctions and deterrent punishment were, in fact, promulgated as a last resort to curb the evil and purify the society---Islam had provided some prohibited degrees in the inter-personal relationship by means of affinity, consanguinity, and fosterage, where not to speak of commission of illegal sex, even contract of marriage, was strictly forbidden---Sexual intercourse between person falling in the said specified degrees of consanguinity or infinity or fosterage, was a very great sin---Holy Quran had given detailed and very clear injunctions in that respect---For example, Islam had prohibited marriage with mother, daughter, grand daughter, sister, niece, foster mother, foster-sister, mother-in-law, daughter-in-law etc.---Incest within those prohibited degrees of relations, was considered a grievous and ignoble offence---Gravity of said offence increased multifold as compared to that of zina simpliciter, when a person was proved guilty of commission of incest by cogent, trustworthy and reliable evidence---Holy Quran had emphasized that while inflicting punishment on any male or female who was proved guilty of commission of zina no leniency be observed---Even marrying any woman falling in the prohibited degrees of marriage, was void ab initio and a great criminal offence, which would entail exemplary punishment.

Ahaadith by Abu Daud Nasai Ahmed Ibne Hanbal; Hadith by Ibn' Abbas; Ibne Majah; 'Hadud' Ahmed Ibne Hanbal, Musnad, vol.1, p.300--Ed.; Ahmed Ibne Hanbal and Abu Hanifa, Malik and Shafii rel.

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

----S. 376--- Rape--- Appreciation of evidence---Victim girl was subjected to zina by her own father---Statement made by the victim inspired confidence; it appeared, but natural that she did not report the matter to police on the first two occasions when she was unmarried and had naturally considered its future repercussions against her father---Victim was also conscious of the honour of her family as stated by her---Family pressure in such matters was always apparent; in her own words, when she got sick of the attitude of her father, she had no other option, but to report the matter to the Police---Victim girl had made a very convincing statement---All the three times after her rape, she protested and complained about the occurrence to her mother; her statement was fully supported by medical evidence; and further corroborated by report of the Chemical Examiner---Nothing was on record to show that she was either a girl of easy virtue or had any bad reputation in the community---Mere delay in lodging F.I.R., per se was not at all fatal to the case of prosecution, if the other evidence, inspired confidence and delay was plausibly explained----In the present case, the delay had been plausibly explained---Mental agony of the young teenager girl, could be well-imagined as she was raped by her real father---Single accused having been nominated in the case, delay plausibly explained, was natural and reasonable and did not damage the prosecution case---Discrepancies and contradictions about time, were very trivial and natural and did not affect the main version about the occurrence---Defence plea taken by accused about relations of the victim girl with a person, was baseless, unsubstantial and appeared rather criminal---No cogent piece of evidence or any defence witness was available to support said allegation---Deposition of victim girl found full support from the testimony of her mother---Statements by both were fully consistent in material particulars, rang true and inspired confidence---Report of the Chemical Examiner as well as DNA report, had lent corroboration---Real daughter would never charge her own father for committing such a heinous offence, without any rhyme or reason---Prosecution had proved its case against accused to the hilt, keeping in view the gravity of the offence, accused deserved an exemplary deterrent punishment---Accused, had been rightly convicted and sentenced and impugned judgment called for no interference---Conviction and sentence awarded to accused by the Trial Court, was maintained and murder reference was confirmed and answered in affirmative.

Muhammad Sharif Janjua for Appellant.

Ms. Nuzhat Yasmeen for the Complainant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 25th October, 2011.

2012 Y L R 886

[Federal Shariat Court]

Before Shahzado Shaikh, Allama Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

MUHAMMAD ARSHAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.213/L and 238/L of 2006, decided on 29th July, 2011.

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

----S. 10(4)---Penal Code (XLV of 1860), S.302(b)---Zina-bil-jabr liable to tazir, qatl-e-amd---Appreciation of evidence---Complainant was not an eye-witness of the occurrence, but two prosecution witnesses who had lastly seen the victim deceased girl in the company of accused person, had given details of last seen evidence, which were natural---Said witnesses were cross-examined at length, but their statement were not shattered---Accused had made confession before two other prosecution witnesses and said witnesses remained unshaken during their examination-in-chief and cross-examination---Lady doctor, who conducted postmortem examination of dead body of deceased girl, had opined that her death was due to asphyxia under ligature mark, which was fatal and sufficient to cause death in ordinary course of nature---Said lady doctor after observing report of Chemical Examiner, also opined that rape was committed with the deceased---Last seen evidence, extra-judicial confession and medical evidence, had connected the accused person with the commission of offence---Minor technical contradictions in the statements of the witnesses, were not sufficient to disprove the prosecution version---Plea of accused regarding relation of prosecution witnesses with the complainant had no weight because they were the natural witnesses---Said witnesses gave details about extra-judicial confession---Adequate undisputed evidence was available on the record to prove that minor girl was murdered after commission of zina with her---Oral evidence, coupled with the medical evidence and the report of the Chemical Examiner, left no doubt about the fact of murder of deceased and commission of zina with her---Prosecution had produced the ocular account, last seen evidence and extra-judicial confession in chain with each other; and no link had been broken at any stage---No proof of enmity between the parties was available on the record---Accused persons neither recorded their statement on oath under S.340(2), Cr.P.C., nor produced any evidence in their defence in order to prove enmity, so that the complainant party could be believed to have substituted the real culprits of murder and rape of their minor daughter---Plea of counsel for accused that dead body of deceased was not recovered on the pointation of accused, held no ground---In view of clear ocular evidence corroborated by medical, Chemical Examiner's report and circumstantial evidence, non-grouping of semen, did not leave any deficiency in the evidence, as it was not the compulsory component without which the evidence could not be admissible, in the circumstances---Prosecution had fully proved its case against accused persons beyond any shadow of doubt and counsel for accused had not been able to create any dent in the prosecution evidence---Trial Court, in circumstances had rightly convicted and sentenced accused---Trial Court had already given lesser punishment of life imprisonment to both accused for the reason that the occurrence was unseen and one of accused, was juvenile at the time of occurrence---Conviction and sentence awarded to accused, was upheld, in circumstances.

Mian Shah Abbas for Appellant (in Criminal Appeal No.213/L of 2006).

Ch. Saleem Akhtar for Appellant (in Criminal Appeal No.238/L of 2006).

Muhammad Anwar Sipra for the Complainant.

Ch. Muhammad Ishaque D.P.-G for the State.

Date of hearing: 25th July, 2011.

2012 Y L R 918

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

MUHAMMAD ARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.44/L of 2009, decided on 13th May, 2011.

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

----S. 10(2)---Zina liable to Tazir---Appreciation of evidence---Delay of about 36 hours in lodging the F.I.R., had not been explained satisfactorily in the F.I.R.---Both the witnesses were closely related to the complainant being real brother and nephew---No independent witness, in the case, though there were several houses near the house of complainant and according to complainant several persons of the area had the knowledge of occurrence and had requested him to forgive the accused---Complainant in cross-examination had also admitted that inhabitants of the neighbourhood had appeared before the Investigating Officer and stated that the alleged occurrence did not take place---Story narrated by the victim, also did not appeal to mind; as how only one empty handed person forcibly took her from the house and committed zina with her without her consent---Medical evidence also belied her statement; as according to medico-legal report issued by the Lady Doctor, the victim had no marks of violence on any part of her body---Lady Doctor had further reported that vagina of alleged victim admitted two fingers and hymen had got healed tears, which clearly meant that the alleged victim was habitual to sexual intercourse---Such fact was also confirmed by the Lady Doctor in her cross-examination---Independent persons did not support the prosecution story---Police Officer had also deposed that as per his investigation, alleged occurrence had not taken place---Alleged victim had given contradictory statements in her deposition---Material contradictions in the statement of the witnesses, coupled with the medical evidence; and the statement of Police Inspector, had made the prosecution case highly doubtful---Prosecution had not been able to prove the charge against accused---Conviction and sentence awarded to accused by the Trial Court vide impugned judgment, were set aside, accused was acquitted from the charge and was released, in circumstances.

Ch. Sarfaraz Ahmed Chadhar for Appellant.

Abdul Salam for the Complainant.

Ch. Muhammad Sarwar Sidhu, Addl: Prosecutor General Punjab for the State.

Date of hearing: 9th April, 2011.

2012 Y L R 993

[Federal Shariat Court]

Before Shahzado Shaikh, Allama Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

IMRAN alias MANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.164-L of 2004 and Criminal Murder Reference No.8/L of 2005, decided on 24th January, 2012.

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

----S.10(2)---Penal Code (XLV of 1860), S.302(b)/34---Zina liable to Tazir, Qatl-e-amd---Appreciation of evidence---Case of double murder---F.I.R. was lodged promptly and name of accused was specifically mentioned therein---Ocular evidence of eye-witnesses remained consistent with each others---No major contradiction was seen therein, nor in cross-examination the defence side could shatter their evidence in material particulars---Defence side was unable to establish any plausible defence, nor their presence at the time and place of occurrence could be adequately denied---Medical account had also been corroborative of the prosecution version as stated by the prosecution witnesses---One of the prosecution witnesses remained in line with other two witnesses in terms of timings of the material particulars---Prosecution story seemed to be confidence inspiring, having remained consistent, unshattered and probable---Impugned judgment, in circumstances, did not warrant interference---Prosecution having succeeded to prove the case against accused beyond reasonable doubt conviction and sentence awarded to accused by the Trial Court were maintained---Murder Reference was answered in the affirmative and sentence of death awarded to accused, was confirmed, in circumstances.

Shoaib Zafar for Appellant.

Muhammad Waseem for the Complainant.

Ch. Nisar Ahmed Virk, Deputy Prosecutor-General for the State.

Date of hearing: 24th January, 2012.

2012 Y L R 1174

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

JAMEEL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.315/I of 2005 and Criminal Murder Reference No.1/I of 2006, decided on 15th August, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---No eye-witness of the occurrence was on record and it was a blind murder and case was not even a 'last seen' case---Recoveries of the parts of snatched vehicle were already in the possession of Police; and no identification was held under the law to identify the said recovered parts of vehicle, which was necessary in those circumstances---Accused were already in Police custody in some other case before the said recovery---Prosecution solely hinged on the testimony of Investigating Officer, who was not eye-witness and his evidence had not been corroborated by other circumstances of the case---Accused had been proved to have not committed offence of murder and no sufficient evidence of the offence against him was available---Entire case rested upon circumstantial evidence, which was not fully corroborated---Chain of circumstances in the case had been broken at many stages during the evidence---Confessional statement made by accused was result of coercion and same was not voluntary, as he was in Police custody and was interrogated with torture---Confessional statement had been retracted and was not recorded under the law, being recorded jointly as both accused were brought and presented together---Confessional statements, examination in chief and cross-examination of accused did not at any point link the story of occurrence as to how the deceased victim was led to the point where he was murdered in the stated manner---Case of prosecution, appeared to be highly doubtful, to prove beyond any shadow of doubt the unbroken linkage of that very accused to the offence---Where there was any discrepancy in the evidence of prosecution, the benefit of doubt would go to accused---Prosecution had not been able to prove the guilt against accused, and the evidence as produced was full of contradictions---Conviction and sentences as awarded by the Trial Court, were set aside, accused was acquitted from the charges by giving him benefit of doubt and he was released, in circumstances.

Abdul Ghani Channa for Appellants.

Fazal Dad S.H.O. for the Complainant.

Muhammad Sharif Janjua, on behalf of A.G. Khyber Pakhtunkhwa for the State.

Date of hearing: 15th August, 2011.

2012 Y L R 1954

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

MAQSUD AHMAD alias SUDI---Petitioner

Versus

THE STATE---Respondent

Jail Criminal Appeal No.39/I of 2010 and Criminal Reference No.1/I of 2011, decided on 19th October, 2011.

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

----Ss. 7, 16 & 17(3)---Criminal Procedure Code (V of 1898), S.164---Haraabah---Appreciation of evidence---Accused was convicted merely on his confessional statement, which had been retracted in appeal---All the legal requirements were not fulfilled at the time of recording confessional statement---No legal assistance was provided to accused, though trial and conviction involved capital sentence---Accused was not provided opportunity for pondering over consequences of his confessional statement---Such deficiencies, amounted to denial of fair trial and justice---Trial Court should have made specific queries from accused himself; and express assessment should have been recorded, in order to ensure that the confessional statement to be reliable, was truly voluntarily made, was self-prompted without any torture or coercion, knowing its consequences for which accused was mentally prepared---Identification parade of accused had not been conducted according to law and formalities of law had not been fulfilled by Supervising Authority---Witness who identified the accused during identification parade, failed to appear before the Trial Court---Such identification parade had no legal consequences---Recovery of looted property was also a question mark on the part of the prosecution---Neither F.I.R., nor recovery memo mentioned denomination of currency notes---Recovery memo of snatched amount became doubtful and it carried no legal value on the basis of which capital punishment could be awarded to accused---Contradictions between the story of prosecution and version of accused with regard to occurrence, had mutually damaged written complaint and confessional statement of accused, particularly in the absence of evidence, which was needed in the trial---Accused being in jail, nothing was recovered from his possession and no independent and dependable witness had been taken in that respect---Identification of recovery, and identification parade of accused were not conducted as per legal requirements---Accused had no opportunity under S.164, Cr.P.C. separately, after his alleged extra-judicial confession as accused had to be produced before the Trial Court for judicial confession---Accused had one less opportunity at earlier stage, to retract, if he so wanted---Since no question was put as to why accused was making the confession, the motive could not be determined---Prosecution having failed to prove guilt of accused beyond shadow of doubt conviction and sentence of accused, was set aside, he was acquitted of the charge and was released, in circumstances.

1992 SCMR 196; PLD 1980 Pesh. 92; AIR 1932 Lah. 609; AIR 1940 Lah. 242; PLD 1950 BJ 5; 2004 SCMR 47; PLD 1956 FC 300; 2006 PCr.LJ Northern Area Court of Appeal 1613; 1993 SCMR 1822; PLD 1971 Lah. 850 (DB); 43 Cr.LJ (1942 Pat.) 36 (DB); PLD 1994 Pesh. 102; 1991 PCr.LJ 365; 1991 PCr.LJ 365; 1991 PCr.LJ 2158; 1991 MLD 1289; PLD 1960 Pesh. 74 (DB); 2006 PCr.LJ 1245 and PLD 1975 1 Pesh. 230(DB) rel.

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

----S. 7---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Art.30--"Pleading guilty", "admission", and "confession"---Distinction and connotation---Possibility of suicidal or self-inflicting confession, which could have been sponsored for substitution or for serving clandestine interests, should be eliminated, during course of its recording by the Trial Court in order to be sure of its genuineness in all respects---If mere confession under S.7(a) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 did not satisfy a prudent mind to be sure of fullest justice, court could adopt another form or manner of proof provided under S.7(b) of the said Ordinance---Law had expressly provided to adopt any one of the forms (a)(b) provided under S.7 of the Ordinance---Confession should not be taken as easy and painless method of disposal of a case, but as an instrument to unearth the truth through truthfulness of the confession, in order to take the case to its judicious disposal---Maximum counselling should be extended to the person making the confession in all aspects of its course and consequences as was evident in the Quran and Sunnah---There were subtle, both common as well distinct, points involved in terms 'admission', 'pleading guilty' and 'confession', but those terms were used by many in common practice, as if those were synonymous---'Admission' was to accept, or acknowledge that something was true especially unwillingly---'Confession' was special admission that one had done something wrong, that he felt guilty or bad about---To 'plead' was to make urgent and earnest request or specific plea, in respect of criminal charge---'Guilt' was state of having committed a wrong, a crime, which would bring bad feeling with responsibility for doing it---"Pleading guilty", in circumstances was earnest and truthful express confession, oral or written, including details about the crime by criminal suspect of guilt, knowing its consequences, in response to a specific criminal charge, with responsibility for having done it.

1997 PCr.LJ 1930 (DB); PLD 1984 Lah. 434; The Ever All-Merciful". 2-37; (Bukhari :: Volume 3 :: Haditha 1726 Page 635); (Bukhari :: Volume 3 :: Hadith 1719 page 631); (Abu Dawud :: Volume 3: Hadith 1012 page 377); 1998 PLC 163; 1991 MLD 1289; William P. Richardson. The law of Evidences 394, at 268 (3ded. 1928); (Black's Law Dictionary) and Mussanaf, Abdul Razzaq, Volume 10 :: Hadith 18990, page 242) rel.

(c) Interpretation of statutes---

----Law had to be interpreted, in its content and within its context, as enabling proposition for its application, with all possible certainty for safe delivery of justice.

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

----Art. 22---Identification parade---In the present case, mainly general structural features had been mentioned which could fit into innumerable faces, without assigning roles and position of accused was not changed in the identification parade---Person who identified the accused, simply touched him without giving identified role---Identification parade was not conducted as per legal require-ments, in circumstances.

Mrs. Aneela Ateeq for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 19th October, 2011.

2012 Y L R 2013

[Federal Shariat Court]

Before Agha Rafiq Ahmad Khan C.J. and Dr. Fida Muhammad Khan, J

JAVAID and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.3/P, Jail Criminal Appeals Nos. 12/I and 29/I of 2010, decided on 9th May, 2012.

Offences Against Property (En-forcement of Hudood) Ordinance (VI of 1979)---

----S. 17(4)---West Pakistan Arms Ordinance (XX of 1965), S.13---Haraabah, in the course of which murder is committed, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---No one was nominated by the complainant in the Murasla and the occurrence was unwitnessed---Case was of circumstantial evidence only---Evidence of prosecution witnesses did not provide complete links of the chain and each testimony of those witnesses stopped at a certain point and did not advance the case to the neck of accused, as was required in all cases based on circumstantial evidence---Evidence seemed to be totally based on conjectures and surmises---Place of occurrence where murder had taken place was more than a mile away from the house of the prosecution witnesses---None of the prosecution witnesses had referred to any evidence that could provide basis or any link for their opinion---Nothing was on record to show that deceased before his death had any weapon which was used during struggle between him and unknown accused---Deceased himself had mentioned nothing about any such scuffle---Prosecution witness who was son of the deceased had not disclosed any source of evidence which had made him to believe that accused had committed murder of his father---Said prosecution witness had also admitted that he was not present with his father at the time he was driving the taxi in question---Accused persons belonged to a far-flung area and none of the prosecution witnesses knew their names---No proper identification parade was conducted by the prosecution despite the application was moved for that purpose---Such was the position of recording of confessional statement when accused refused to make any confession---Report submitted by the Forensic Science Laboratory, was doubtful---Pistol was recovered from accused 10 days after recovery of two empties from the place of occurrence but both were sent together to Forensic Science Laboratory after 10 to 14 days respectively--- Experienced Investigating Officer was supposed to send empties separately as soon as those were recovered, but same was not done in the case---Failure to do so had resulted in creating doubt; and that factum was sufficient to shatter the sanctity of the report of Forensic Science Laboratory---Case of prosecution was based on conjectures, presumption and surmises, and conjectures and surmises no matter how strong, could not take place of legal evidence, particularly, in cases which carried capital punishment---Conviction and sentences of accused were set aside by extending them benefit of doubt---Accused were acquitted of the charges and were released, in circumstances.

Amin Khattak Lachi and Khalid Khan for Appellants.

Alamgir Khan Durani, Deputy Advocate General, KPK for the State.

Date of hearing: 9th May, 2012.

2012 Y L R 2079

[Federal Shariat Court]

Before Shahzado Shaikh, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

HIMMAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.33-Q of 2009 and Murder Reference No.1-Q of 2010, decided on 21st May, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was neither specifically nominated by the complainant in the F.I.R., nor in the course of his statement recorded during the trial---No identification parade was got conducted by the Investigating Officer after the arrest of accused, who was stated to be unknown---Accused was real brother of a co-accused, who was identified by the complainant at the time of occurrence, it was highly improbable, in circumstances, that the complainant could not have identified the accused---Features of accused, who was shown as the unknown accused in the F.I.R., were not mentioned therein---Person, who was accompanying the complainant at the time of occurrence, and had seen the whole incident, had not been produced by the prosecution as witness during the trial---Another person who had transferred the dead body of the deceased from the scene of the crime to the hospital, had also not been produced as witness---Non-production of said two witnesses, who had witnessed the occurrence; and had direct knowledge of the incident had created a serious dent in the prosecution story---Motorcycle used by any accused at time of occurrence was not mentioned---Out of three accused mentioned in the F.I.R., only two were alleged to have been armed with Kalashnikov---No allegation was levelled in the F.I.R. or the statement of the prosecution witnesses that accused was armed with a pistol/revolver at the time of occurrence---Case of two versions---Version which was favourable to accused, was to be accepted---Presence of accused at time of occurrence had not been established beyond reasonable doubt by the prosecution---Accused, in circumstances, could not have been found guilty of causing the "qatl-e-amd" of the deceased along with his co-accused in furtherance of their common intention---Prosecution having failed to establish beyond reasonable doubt that accused had committed "qatl-e-amd" of deceased in furtherance of common intention of all accused, conviction and sentence awarded to accused under S.302(b), P.P.C. by the Trial Court, was set aside---Accused was acquitted of the charge and was released, in circumstances.

Muhammad Akram v. The State 2012 SCMR 440; Mir Hazar v. The State 2002 PCr.LJ 270; Mst.Dur Naz and another v. Yousaf and another 2005 SCMR 1906 and Muhammad Sharif v. The State 2012 SCMR 419 ref.

Khan Afsar and 2 others v. The State 2011 YLR 991; Mir Hazor v. The State 2002 PCr.LJ 270; 2011 PCr.LJ 925 rel.

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

----S. 34---Common intention---Ingre-dients---Common intention---Generally involved an element of common motive, preplan preparation, and actual commission pursuant to such plan---Main ingredients of S.34, P.P.C., were that a criminal act must be done by several persons; that criminal act must be done to further the common intention of all and that there must be participation of all persons in furtherance of the common intention.

Muhammad Qahir Shah for Appellant.

Abdul Wasey Tareen, Prosecutor General Balochistan for the State.

Nadir Ali Chalgari for the Complainant.

Date of hearing: 21st May, 2012.

2012 Y L R 2142

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

Qari ABDUR RASHEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.35/L of 2008, decided on 19th April, 2012.

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

----S.10(3)---Zina-bil-jabr liable to Tazir---Appreciation of evidence---Medico-legal Report, Chemical Examiner's Reports and Lady Doctor's deposition before the Trial Court, supported the prosecution that intercourse was committed with the two victim girls---Reports of Chemical Examiner were also positive as the swabs were found stained with semen, which had corroborated the opinion of Doctor regarding sexual intercourse with both the victims---Accused was named in the F.I.R.---From the fact of filing suit for restitution of conjugal rights by accused on the ground that victim girls had entered into a valid Nikah with him, which he could not prove; and the opinion of the lady Doctor, it was clear that accused had committed sexual intercourse with both the victims, whose statements were sufficient to prove the allegation against accused---Such an intercourse in the absence of a valid Nikah, as disproved through the litigation in the Family Court, would amount to zina---Assertion of accused about Nikah with the victim girls, which could not be proved before Family Court, the statements of the victims, duly supported by documentary evidence of decree of Family Court and Medico-legal Report, corroborated by report of Chemical Examiner were sufficient to lead to believe that the commission of the offence was that of zina-bil-jabr, in circumstances---Delay in lodging the F.I.R. in the case had been fully explained---Trial Court, in circumstances, had rightly convicted and sentenced---Accused was rightly awarded the sentences on two counts 12 years and 6 months imprisonment, each under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for the commission of zina-bil-jabr with victim girls to run consecutively.

PCr.LJ 2005 761; PLD 1985 SC 11 and 1985 SCMR 153 ref.

Liaqat Shah and others v. The State PLD 1991 SC 1145 rel.

Qusain Faisal Mufti and Muhammad Sharif Janjua for Appellants.

Ahmad Raza Gilani, Additional Prosecutor General, Punjab for the State.

Date of hearing: 19th April, 2012.

2012 Y L R 2173

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J. and Dr. Fida Muhammad Khan, J

SAIFULLAH---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.34/P of 2007 and Criminal Revision No.1/P of 2008, decided on 7th May, 2012.

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

----S. 17(4)---Penal Code (XLV of 1860), S.412---Haraabah in course of which murder was committed, dishonestly receiving property stolen in commission of a dacoity---Appreciation of evidence---Benefit of doubt---Deposition of both witnesses, suffered from major discrepancies---Witness who claimed to be an eye-witness, did not seem to be eye-witness of the occurrence and he repeated whatever he had heard at the spot from other people who were present over there---Testimony of said witness which amounted to hearsay, did not inspire confidence, especially when his statement contained major contradiction on material points---Deposition of star witness revealed ocular details of the whole occurrence which hinged on his testimony alone---Depositions of Police Officials, were contradictory to the one made by one of the Prosecution witnesses---Neither any blood-stained earth nor any empty had been recovered from the place of occurrence---Such aspect of the case also raised doubt about the actual place of occurrence---Forensic Science Laboratory report about the recovered pistol, though was positive, but in absence of any crime empty and its matching with the same, same was inconsequential---No positive evidence was available to prove that the pistol recovered from accused was giving smell of fresh discharge at the time of its recovery---Contradiction existed regarding the number of live bullets allegedly recovered from accused and those shown in the Forensic Science Laboratory; and that contradiction had adversely reflected on the integrity of the Investigating Officer---Prosecution was bound to prove its case beyond any reasonable doubt, but appraisal of evidence on record had shown that the prosecution had not been able to prove its case against accused beyond any reasonable doubt---Extending the benefit of doubt to accused, his conviction and sentence, was set aside and he was acquitted of the charges and was released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubt---If there was any single circumstance which would create reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit not as a matter of grace and concession, but as a matter of right.

Zulfiqar Ali Chamkani for Appellant.

Alimgir Khan Durani, Deputy Advocate General for the State.

Date of hearing: 7th May, 2012.

2012 YLR 2302

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SHAFI alias SAKHI MUHAMMAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.55-L of 2010, decided on 4th July, 2012.

(a) Criminal Procedure Code (V of 1898)

---S. 540---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Power to summon material witness---Scope and application of S.540, Cr. P. C. ---Application for re­examination/recalling the complainant/ victim was dismissed by the Trial Court by impugned order---Perusal of said order had indicated that application was dismissed by the Trial Court on an erroneous assumption of law and facts---Provisions of S.540, Cr.P.C. in examining, recalling or summoning any witness were incorporated to confer jurisdiction on the court to arrive at the truth in accordance with law and technicalities should not be allowed to interfere with that function---Provisions contained in 5.540, Cr.P.C. in examining, recalling or summoning any witness, were wide enough to give free hand to a court of law to see that the justice did not step out of hand or was defeated on the technicalities of law only---Trial Court, in the present case not only acted with illegality and with material irregularity, but also failed to assume jurisdiction while dismissing the application--Said order suffering from jurisdictional as well as legal defect, was set aside, in circum­stances.

Maqbool v. The State 2006 PCr.LJ 110 rel.

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

----S.10(3)---Zina-bil-jabr, liable to Tazir---Appreciation of evidence---Sentence, reduction in---Counsel for accused prayed for reduction of sentence after reducing the sentence to one already undergone---Sending back the matter to the Trial Court for deciding the matter afresh after re-examining the victims after lapse of more than six years of occurrence, would neither be reasonable nor apt; and same' would amount to add the agonies of accused who was behind the bar since 18-12-2006; and sending the matter back to the Trial Court would mean restoring the position, it was on the day of the occurrence---Prayer of accused for reduction of sentence was accepted to one already undergone, specially when he had already served out major portion of his sentence of 10 years' R.I. and was likely to be released in the month of November, 2012 (about five months)---Imposition of fine of Rs.50,000 on accused, being not provided under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Trial Court could not justifiably impose the same which set aside being without jurisdic­tion---Maintaining conviction of accused, sentence awarded to accused was reduced accordingly and accused was ordered to be released from the jail.

Qayyum Javed Khan and Farrukh Ahmad Khan for Appellants.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab for the State, Date of hearing: 4th July, 2012.

2012 Y L R 2395

[Federal Shariat Court]

Before Shahzado Sheikh, Dr.Fida Muhammad Khan and Rizwan Ali Dodani, JJ

SULEMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.7/P and Criminal Murder Reference No.1/P of 2009, decided on 4th June, 2012.

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

----Ss. 302 & 380---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.5---Qatl-a-amd, theft in dwelling house, theft liable to Hadd---Appreciation of evidence---Occurrence, though was unseen and no direct evidence was available about the theft from inside the house, nor about the murder of deceased, but the bits and pieces of circumstantial evidence produced by the prosecution, put together sufficiently established guilt of accused beyond any reasonable doubt---Last seen evidence was given by prosecution witnesses who saw the deceased alive in the company of accused---Said witness saw the accused at different timings, but since they saw him at different places in the same vicinity, the slight difference in timing was not material at all---Presence of said witnesses over there, was natural and they were not chance witnesses---Said witnesses were residents of the same village and were well-acquainted with the accused---No enmity, ill-will or grudge had been attributed to anyone of those witnesses---Depositions of said witnesses rang true and inspired confidence---Except very minor immaterial discrepancies, their statements were fully considered in natural particulars---Being residents of the same village they had no difficulty in identifying accused as well as the deceased---Witnesses had been subjected to lengthy cross-examination, but nothing fruitful to the defence had been adduced from their evidence---Delay of few hours in lodging F.LR. was natural as the complainant party remained busy in searching where about of the deceased---Accused, after arrest, during investigation, led the Police party to recover the stolen box containing ornaments and other things---Dead body of deceased which had been concealed under grass and stones was also recovered on pointation of accused on the same day---Blood-stained clothes of accused which he was wearing on the same day were duly taken into possession and secured---Witnesses of said recoveries were cross-examined at great length, but they stood firm and their testimony had not been shaken, even a bit---Despite some small negligible discrepancies, their testimony was fully consistent and rang true---Single accused was nominated in the F.LR. by his real grandfather---No motive of false implication or any other reason was available on record nor accused had taken any such plea in defence---Confessional statement of accused was inculpatory in nature---Judicial Magistrate recorded confessional statement of accused after observing and completing all legal formalities---Said confessional statement was voluntary and was not at all the result of any coercion---Accused was free and in full senses at the time of recording the confession---Medico-legal and post-mortem reports were also fully in line with the deposition of prosecution witnesses---Accused had been guilty of committing the murder of a minor girl in a very callous manner---Accused brutally killed her just to get rid of- her to cause the evidence disappear against him---No mitigating circumstance existed to alter the death sentence awarded to him---Prosecution having successfully established its case against accused beyond any reasonable doubt, conviction and sentence awarded to accused by the Trial Court, were maintained in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Men could lie, but circumstances would not; since circumstances could mislead, courts were required to exercise great care and caution in considering each and every piece of evidence and ensure that it would lead to one single conclusion and exclude any other possibility except that of the guilt of accused.

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

----Arts. 37 & 41---Criminal Procedure Code (V of 1898), Ss.164 & 364---Judicial. confession---Evidentiary value---When a man of sound mind and mature age would make a judicial confession in ordinary simple language, after he had been duly warned, and the court was satisfied that it was voluntary, true and trustworthy, it could be made the foundation for conviction---Weight to be attached to a confession would depend on the facts and circumstances of each case.

(d) Criminal trial---

----Rule of conviction---Facts proved must be incompatible with innocence of accused, and must be incapable of any other hypothesis, other than that of his guilt.

Shabbir Hussain Gigyani for Appellant.

Aziz-ur-Rehman for the State.

Date of hearing: 4th June, 2012.

2012 YLR 2455

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

MUHAMMAD JAMSHAID and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No.7/L of 2011, and Jail Criminal Revision No.2/L of 2012, decided on 5th July, 2012.

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

----Arts. 3 & 4---Manufacturing, trans-porting and possession of intoxicants---Appreciation of evidence---Sentence, reduction in---Contention of counsel for accused was that accused could neither be convicted nor punished simultaneously under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, even if some narcotics were kept for sale, the element of possession by the holder was necessary under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979---Validity---Conviction of accused under Art.4 was set aside being without. lawful authority---Vehicle carrying the narcotics was owned by the one who was neither investigated nor joined with the investigation during investigation---Such fact alone could not be considered for holding accused innocent or not guilty of the charge---In view of the cogent evidence produced by the prosecution, both courts below while deciding the matter consciously, applied their judicial mind and committed no illegality or irregu­larity---No exception could be taken to the impugned judgment; and conviction of both accused under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979 was maintained---Fact that both accused had undergone one year and three months of sentence; and they being first offenders and original owner of the vehicle was not prosecuted, ends of justice would be sufficiently ' met, if sentence of both accused was reduced to one already undergone---Order accordingly.

1992 SCMR 108 rel.

Ch. Salamat Ali Haidary for Petitioner (in Criminal Revision No.7/L of 2011).

Walayat Umar Chaudhry for Petitioner (in Criminal Revision No.2/L of 2012).

Mian Muhammad Awais Mazhar, Deputy Prosecutor General Punjab for the State.

Date of hearing: 5th July, 2012.

2012 Y L R 2529

[Federal Shariat Court]

Before Shahzado Shaikh, Actg. C.J., Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

MUMTAZ AHMAD and 2 others---Appellants

versus

THE STATE---Respondent

Jail Criminal Appeal No.150-I of 2009 and Criminal Reference No.5-L of 2010, decided on 18th July, 2012.

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

----S. 10(4)---Penal Code (XLV of 1860), Ss.377/109/34/292---Zina-bil-jabr liable to Tazir, sodomy, sale etc. of obscene books, etc., abetment and common intention---Appreciation of evidence---Benefit of doubt---Benefit of doubt---Both the F.I.Rs. were regarding the same occurrence, but a difference was of venue, date of the occurrence and names of accused in both said F.I.Rs.---Noticeable and major contradictions existed in the prosecution story as narrated in both the F.I.Rs.---Prosecution had failed to lay a strong foundation to build-up its case against accused person, and such a defect in the prosecution case had created a serious doubt qua the truthfulness of the prosecution version---F.I.R., in the case, was lodged after an inordinate delay of 15 months and explanation furnished by the prosecution for such delay, was not plausible---Alleged occurrence was not witnessed by the complainant himself, but same was reported to him by the alleged victim and two prosecution witnesses, who were shown to be the eye-witnesses of the alleged occurrence---Prosecution withheld the evidence of one of said witnesses on the ground of being won over by accused---Giving up that witness, would lead to an adverse inference against the prosecution---One of the prosecution witnesses was real brother of alleged victim (woman) and was resident of a village which was about 100 Kms. away from the place of occurrence---Said witness was a chance witness and he could not prove his presence at the scene of crime---Version of said witness did not appeal to a man of even ordinary prudence that he being real brother of alleged victim, despite having reached the place of occurrence and witnessing the occurrence, instead of making efforts to get her released from the clutches of accused, would opt to view the commission of offence of 'zina-bil-jabr' with her sister as silent spectator, providing the culprits sufficient time to succeed in satisfying their evil lust---Evidence of such witness was not worthy of any credence---Occurrence was an unseen one and it did not seem plausible that accused would commit such a heinous offence in presence of his wife and brother-in-law and he would also have their assistance---Prosecution had failed to find any support from the ocular account to prove its case---Prosecution had also lacked the support of medical evidence to prove 'zina-bil-jabr' and carnal intercourse with the victim by accused as the victim was not medically examined---Original photographs of the victim woman with accused and their negatives were neither recovered from any of accused nor brought on record by the prosecution---Unless it was proved that said photographs were not manipulated, those could not be allowed to be produced in evidence, especially when same were highly doubtful---Motive for alleged occurrence as set out in the F.I.R., was not only devoid of logic; but also was not proved through any evidence whatsoever during the trial---Motive was not true and prosecution story was highly doubtful---Prosecution case being not free from doubt, benefit of such doubt must accrue in favour of accused as matter of right and not of grace---Prosecution having failed to prove its case against accused beyond any shadow of doubt, judgment of the Trial Court could not be maintained---Convic-tions recorded and sentences awarded to accused by the Trial Court were set aside and they were acquitted of the charges and were released, in circumstances.

Muhammad Asghar v. The State 2010 SCMR 1706; Mushtaq Hussain v. The State 2011 SCMR 45; Abid Ali v. The State 2011 SCMR 208; Abdul Rehman v. Fateh Sher 1996 SCMR 176; Ata Muhammad v. The State 1995 SCMR 599; Sher Bahadur v. The State 1972 SCMR 651; Mst. Mumtaz Begum v. Ghulam Farid and others 2003 SCMR 647; The State v. Abdul Khaliq PLD 2011 SC 554; Lal Khan v. The State 2006 SCMR 1846; Allah Wadhayao v. The State 2001 SCMR 25; WAPDA v. Ghulam Shabbir 1998 MLD 1592; Mst. Marium Haji and others v. Mrs.Yasmin R.Minhas and others PLD 2003 Kar. 148; Najma Shahzadi alias Rani Bibi v. The State 2005 YLR 1716; Ashique Ali Lashari v. The State 2000 MLD 1193; Rehmat Shah Afridi v. The State PLD 2004 Lah. 829; Sajjad Hussain v. The State PLD 1996 Lah. 28; Government of Sindh through Advocate General Sindh v. Fahad Naseem and 3 others 2002 PCr.LJ 1765; The State v. Abdul Khaliq PLD 2011 SC 554; Sajjad Hussain v. The State PLD 1996 Lah. 286; Said Munir and another v. The State PLD 1964 Pesh. 194 and Sher Bahadur v. The State 1972 SCMR 651 ref.

Mushtaq Hussain v. The State 2011 SCMR 45; Lal Khan v. The State 2006 SCMR 1846; Mst. Marium Haji and others v. Yasmin R. Minhas and others PLD 2003 Kar. 148; Kashif Saddique and 2 others v. The State 2008 PCr.LJ 1039 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Barrister Salman Safdar and Malik Muhammad Saleem for Appellants.

Nisar Ahmad Virk, D.P.-G. for the State.

Nazir Khan for the Complainant.

Date of hearing: 18th July, 2012.

2012 Y L R 2570

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

NASEEB ULLAH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.51-L of 2010, decided on 2nd August, 2012.

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

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---F.I.R. in the case was lodged against two unknown persons and accused were implicated in the case subsequently through supplementary statement on the basis of information provided by two prosecution witnesses---No witness had seen accused firing bullet shot upon deceased on the 'Lalkara' of co-accused---No eye-witness of murder of the deceased was on record---One prosecution witness was the son of the complainant and real brother of the deceased---Not plausible that two unknown persons could take away the deceased from his house in the presence of his real father and two brothers---Statement of prosecution witness regarding taking away of deceased, without any corroboration could not be relied upon---Other witness of last seen, was a chance witness, who had not been able to establish beyond doubt his presence at the time of the incident---Supplementary statement made by the complainant, was not only the result of an afterthought, but also an attempt to fill in the lacunas---No credence could be attached to said supplementary statement; and it would not be safe to convict accused thereon---Alleged dying declaration made by deceased before the prosecution witness, was devoid of any legal force, because the statement made by said witness before the Investigating Officer, was only statement under S.161, Cr.P.C. and not a dying declaration of the deceased---Co-accused had already been acquitted on the basis of benefit of doubt---Identification parade of accused was immaterial because not only the complainant had specifically nominated accused in his supplementary statement, but also the witness who identified the accused during the identification parade had already seen them---Recovery of pistol from accused, was also insignificant as neither any empty was recovered from the spot nor any bullet allegedly fired by accused was got matched from the expert with recovered pistol---In absence of any ocular account medical evidence, which was primarily a corroborative piece of evidence alone, was not sufficient to hold accused guilty of commission of offence---Many discrepancies existed in the statement of the witnesses of the prosecution---Incident was an unseen occurrence and no witness had actually seen the accused---Injury to deceased with pistol allegedly resulted in his death---Prosecution, in circumstances could not prove the guilt of accused beyond reasonable doubt---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge and was released in circumstances.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

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

----Art. 46---Dying declaration---Dying declaration like the statement of an interested witness, required close scrutiny and was not to be believed merely for the reason that dying person was not expected to tell lie---Dying declaration was a weak kind of evidence, which required deep scrutiny and corroboration.

PLD 2006 SC 255 and Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

(c) Criminal trial---

----Benefit of doubt---If a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit, not as a matter of grace and concession but as a matter of right.

Ghulam Qadir Dayo v. The State 2005 PCr.LJ 578 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ch. Anwaar-ul-Haq Pannu for Appellant.

Mirza Muhammad Yousaf Baig for the Complainant.

Muhammad Akhlaq, D.P.-G. for the State.

Date of hearing: 2nd August, 2012.

2012 Y L R 2618

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

NOOR ULLAH and 2 others---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No. 9/I and Criminal Revision No. 1/I of 2012, decided on 11th July, 2012.

Penal Code (XLV of 1860)---

----S. 395---Dacoity---Appreciation of evidence---Benefit of doubt---All three prosecution witnesses happened to be police officials---Testimony of said three police officials, without any independent or reliable corroborative nature of evidence, would not be safe to make such evidence, a basis for the conviction especially when no reason in that regard was assigned by the prosecution---Available record could not connect accused persons with the recovered stolen articles---Stolen articles of huge amount had been recovered and were identified by the complainant, irrespective of the fact that due process was not adopted in that regard, in the absence of any substantive piece of evidence, same could be foisted on any person without any difficulty by the Police to save the actual culprits---Complainant had even not given the description of the stolen articles and amount at any stage nor he had produced the receipts of the gold ornaments before the Trial Court---Identification of recovered stolen property, was not properly conducted and recovered property was not produced before the court at the trial---Impugned judgment of Trial Court was set aside extending benefit of doubt to all the accused persons---Accused were acquitted of the charge and were released, in circumstances.

Hussain Ali Appellants.

Munir Hussain for the Complainant.

Aziz-ur-Rehman for the State.

Date of hearing: 11th July, 2012.

2012YLR 2871

[Federal Shariat Court]

Before Shahzado Shaikh, J

MUHAMMAD ILYAS -Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.50/L of 2007, decided on 2nd August, 2012.

Penal Code (XLV of 1860)---

----Ss.468/471 & 494---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Forgery for purpose of cheating, using as genuine a forged document, marrying again during life time of husband or wife and Zina---Appreciation of evidence---Complainant was not the eye-witness of the actual act of the alleged occurrence of zina and his statement about the occurrence of zina, was based on hearsay---Other witness was also not the witness of alleged occurrence of zina---Father of alleged victim girl/co­accused who had direct nexus with the case, had neither lodged the F.LR./private complaint, nor appeared at the trial as prosecution witness---Co-accused (alleged victim) while recording her statement under S.342, Cr. P. C. had stated that accused was her husband; that her ex-husband divorced her prior to her nikah with accused and after her divorce, her maternal uncle/complainant borrowed Rs.50,000 from father of the accused and that due to his greed he made her engaged with accused, but later on due to bad intention/mala fides, he refused to give her hand to the accused and that she with her free consent married with accused---Complainant, at the time of lodging the F.I.R., had himself reported that co-accused was divorced by her ex-husband three months prior to lodging the F.I.R.---Section 494, P.P.C. would have been attracted, if the marriage between accused and co-accused was declared `void' which was not the case here---Complainant having not been able to prove his case against accused, beyond any shadow of doubt, appeal of accused against his conviction and sentence, was accepted, he was acquitted and was released, in circumstances.

Allah Dad v. The State and others 1992 SCMR 1273 rel.

Ch. Imtiaz Ahmed Kamboh for Appellant.

Khurram Khan, D.P.-G. for the State.

Date of hearing: 2nd August, 2007.

2012 YLR 2258

[Chief Court Gilgit-Baltistan]

Before Sahib Khan, J

SHAKOOR KHAN---Complainant

Versus

Mst. IQBAL BANO and another---Respondents

Criminal Miscellaneous No.29 of 2011, decided on 25th May, 2012.

Criminal Procedure Code (V of 1898)---

----Part III, Chap. V, [Ss.46 to 67], Part V, Chap. XIV [Ss.154 to 176] & Ss.561-A/ 497(5)/63/167/190(2)--- Penal Code (XLV of 1860), Ss. 100/302/457---West Pakistan Arms Ordinance (XX of 1965), S.13---Right of private defence of the body extending to causing death, qatl-e-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, possession of illegal weapons---Petition for quashing of proceedings and cancellation of bail---Cognizance of offences by Magistrates---Scope---Discharge of person apprehended---Scope---Allegation against the accused (respondent) was that she shot at and killed the deceased in her self-defence as the deceased had allegedly trespassed into her house with ulterior motives---Investigation officer himself filed an application before the Magistrate requesting recording of statement of the accused under S. 164, Cr.P.C , with the contention that she had opened fire on the deceased to protect and defend herself; that she be acquitted of the charge under S.302, P.P.C, and requesting that she should be granted bail for the charge under S. 13 of the West Pakistan Arms Ordinance, 1965---Said application of the investigation officer was allowed--- Contentions of the complainant (petitioner) were that request made by the investigating officer through his application was beyond his powers; that request of the police to seek bail and extend benefit of S.100, P.P.C, in favour of the accused without any investigation or collecting of evidence was against the supremacy of law, and that the Magistrate lacked the jurisdiction to try the charges levelled against the accused---Validity---According to the police the accused had handed over her weapon and live cartridges to the police but neither the police prepared a recovery memo nor sealed the crime weapon and cartridges on the spot in the presence of witnesses---Police did not bother to probe the matter to find out the factual position of the incident---No evidence supported the defence taken by the accused and the police either wilfully or otherwise did not even attempt to get any material support to substantiate the claim of the accused through oral, factual or documentary evidence---Police wrote down the application and made a request for the release of the accused on the same date when the alleged incident took place, without giving any cause and reason for such a request to the Magistrate---Police neither filed any challan against the accused nor sought her remand to investigate the matter---Magistrate should have acted under S. 190(2), Cr.P.C, instead of entering into the jurisdiction of the matter he was not authorized to exercise under the law---Section 63, Cr.P.C, which was attracted in the cases falling under Part III, Chapter V, Cr.P.C, dealing with the subjects mentioned therein, could not be stretched into the cases falling under Chapter V, Cr.P.C, which dealt with information and powers of investigation---Perusal of S. 167, Cr.P.C, showed that it did not empower the Magistrate to discharge an accused but only empowered the Magistrate either to grant physical remand or to refuse the same to authorize detention in police custody---Magistrate could release an accused on the execution of a bond where the matter fell under Chapter V, Cr.P.C---Present case pertained to cognizable offence and non-bailable, besides being out of the jurisdiction of the Magistrate, therefore provisions of S. 63, Cr.P.C and 167 Cr.P.C, could not be applied con-jointly---Petition for quashing of proceed-ings was accepted, order passed by the Magistrate was set aside and the investi-gating agency and the Magistrate were directed to follow the provisions contained in Part V, Chapter XIV, Cr.P.C and Part VI, Chapter XV, Cr.P.C.

1994 PCr.LJ 1806; 1996 PCr.LJ 1153; 2000 PCr.LJ 520; 1996 PCr.LJ 1187 and 1999 MLD 1847 rel.

2000 YLR 2857; 2004 PCr.LJ 117; 2008 YLR 1669 and 2000 PCr.LJ 31 ref.

Najibullah and Tanvir Akhtar for Petitioner.

Assistant Advocate General for the State.

Respondent/Accused in person.

2012 Y L R 722

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE through Advocate General---Respondent

Criminal Miscellaneous No. Nil of 2011, decided on 20th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Maximum punishment of offence under S.489-F, P.P.C. had been provided upto three years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Offence under S.489-F, P.P.C. would not constitute, unless it was proved that the cheque was issued dishonestly and knowingly by accused and same would be dishonoured---Such fact could not be determined at bail stage and needed further inquiry---Accused was behind the bars since 17-11-2011; investigation had been completed and accused was not required any more by the Police for further investigation---To keep accused in judicial lock-up would serve no purpose for the ends of justice---Principle indicated, got support from the precedents referred by the counsel for accused---Accused was released on bail, in circumstances.

PLD 1995 SC 34; 2010 YLR 624 and 2011 PCr.LJ 869 rel.

Kamran Tariq for Applicant.

Muzaffar Ali Zafar Additoinal Advocate-General for the State.

2012 Y L R 809

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

GULZAR BEGUM---Petitioner

Versus

MEHBOOB HUSSAIN alias MEHBOOB KHAN---Respondent

Revision Petition No.34 of 2009, decided on 2nd January, 2012.

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

----S. 54---Civil Procedure Code (V of 1898), O.VII, R.10---Suit for permanent injunction---Maintainability---Return of plaint---Maintainability---Three brothers, out of whom one was deceased husband of the plaintiff, were co-sharers of the suit land which had not been partitioned in accordance with law---Possession on the said land could not be disturbed till partition of the same in accordance with law was not made---Both courts below had directed the plaintiff to approach the Revenue authorities for partition---Suit for permanent injunction, in such like situation, was not maintainable; and the courts below had rightly returned the suit of the plaintiff with direction to approach the relevant forum---Concurrent findings of facts of both courts below, based on cogent and sound reasons, could not be interfered with in revisional jurisdiction of High Court.

PLD 1998 SC 509; 2000 YLR 2898; 2000 YLR 2351 and 2003 CLC 595 distinguished.

2006 YLR 856 and 2006 SCR 17 rel.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Ingredients---One had to establish three requirements of law regarding interim injunction; a prima facie case; balance of convenience; and irreparable loss---If any of said three ingredients was missing the plaintiff was not entitled for interim injunction---Both courts below having observed that the plaintiff had not been able to make out a case for issuance of temporary injunction, plaintiff was rightly refused interim injunction---Petition was dismissed.

Ch. Muhammad Sabir for Petitioner.

Raja Liaqat Ali Khan for Respondent.

2012 Y L R 1286

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD SHAFI---Petitioner

Versus

FATEH MUHAMMAD and 6 others---Respondents

Writ Petition No.5 of 2012, decided on 22nd February, 2012.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Specific Relief Act (I of 1877), S.42--- Writ petition--- Suit for declaration---Rejection of application for issuance of attested documents, which were rejected by the Trial Court when case was at the stage of evidence---Appellate court upheld the trial court order---Record had revealed that District Judge and Civil Judge concerned were not impleaded as party in the writ petition, though the orders passed by both of them were sought to be abrogated---If a necessary party was not before the court, there could be no adjudication---Under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, no writ petition could be filed against private person but a person performing functions in connection with the affairs of the State or a local Authority---Petition having been filed against a private person was dismissed in circumstances.

Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Pir Ali Jan Shah v. Chairman Municipal Committee and others 1992 SCR 351 and Barkat Hussain v. Sardar Misri Khan 1993 SCR 75 rel.

Ch. Muhammad Naseem for Petitioner.

2012 Y L R 1914

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and M. Tabassum Aftab Alvi, J

Dr. EJAZ AHMED---Petitioner

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 10 others---Respondents

Writ Petition No.1839 of 2011, decided on 22nd March, 2012.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Limitation---Laches, principle of---Scope---Writ petition having been filed after more than 5 months of the issuance of impugned notification, principle of laches was fully attracted in the case, when no explanation was given by the petitioner for that delay in filing the petition---Writ petition being hit by laches, was dismissed, in circumstances.

Kh. Maqbool Ahmed v. AK Government and others 2011 SCR 66; Azad Government of the State of J&K and others v. Haji Summandar Khan and others 1995 MLD 1350; Shamas Din v. Aman Ullah and 3 others PLD 1987 Lah. 471; Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC AJK 5; Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others 1994 SCR 267; Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and 5 others 1999 PLC (C.S.) 1439; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (C.S.) 1138 and Munir Hussain Shah v. Secretary Forest Department Azad Government of the State of J&K Muzaffarabad and another 1993 PLC (C.S.) 1153 ref.

Mushtaq Ahmed Janjua for Petitioner.

Raja Muhammad Haneef Khan and Abdul Rasheed Abbasi for Respondents.

2012 YLR 2283

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SUPERINTENDING ENGINEER, WAPDA and another---Appellants

Versus

LAAB BIBI and 5 others---Respondents

Civil Appeal No.58 of 2007, decided on 12th May, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23, 24 & 54---Acquisition of land---Determination of amount of compensation---Enhancement of amount by Referee Court---Amount of compensation of acquired land as assessed and determined by the Collector Land Acquisition was enhanced by the Referee Court---Validity---Referee Court enhanced the amount of compensation declaring that the awarded land was of potential/ commercial value and' situated at main road within the municipal limits---If the compensation demanded as owners was proved market as well as potential value of the awarded land, then it was just and proper to determine the same as compensation---Record had revealed that the compensation assessed by the Collector was not proper in view of the market and potential value of the acquired land---Collector had mentioned in the award the sale-deeds of the relevant village, but did not consider the market value of the land acquired in accordance with the said sale-­deeds-Acquired land was located on the main road and had got a considerable .potential value---Compensation determined by the Referee Court was based on market and potential value of the awarded land which had recorded its findings based on sound and cogent reasons---Witnesses produced on behalf of the owners of acquired land, fully supported the version which was accepted by the Referee Court--Documentary evidence supported the owners which version remained un­rebutted---Acquiring Authorities did not mention any irregularity or illegality in the proceedings conducted before the Referee. Court---Evidence produced by the owners on the point of price of acquired land was deemed to be admitted as correct---Assessment made by the Collector was self contradictory---While ascertaining the value of the acquired land, the probable use by the owners must be taken into consideration which would include all the advantages which the land if possessed by landowner present or future.

PLD 1988 Lah. 57-65; PLD 1989 SC 31; 1991 SCMR 2436; 1992 SCMR 1310; 1993 CLC 5009; PLD 1997 Lah. 46; 1997 SCR 351; 2001 MLD 204 and 2007 SCR 468 ref.

PLD 2004 SC 512; 1996 SCR 132 and Azad Government y. Abdul Razzaq and others Civil Appeal No.140 of 2004 dated 26-11-2008 rel.

Haji Muhammad Afzal for Appellants.

Raja Hassan Akhtar for Respondents.

2012 YLR 2344

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SALAT and 15 others---Petitioners

Versus

WADI HUSSAIN and 3 others---Respondents

Civil Revision No.22 of 2010, decided on 19th March, 2012.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Production of additional evidence in Appellate Court---Petitioners had already appended a copy of record of rights, with the original suit but wanted to place on record a copy of record of rights regarding the same years, but with new entries thus wanted to fill up the lacunae in their evidence through a fresh document---Validity---Parties could not be allowed to patch up the weaker parts of their case or to raise new points---Appellate Court had recorded its findings which were based on sound and cogent reasons for dismissing application to produce additional evidence-High Court declined to interfere in said findings of the Appellate Court below.

1994 SCR 238; 1997 MLD 2352; 2000 YLR 1847; PLD 2002 SC 615; 2005 MLD 620; 2009 YLR 125; 2009 SCR 199 and 2011 CLC 1407 distinguished.

1996 SCR 22 and PLD 2000 SC (AJ&K) 20 ref.

PLD 2000 SC (AJ&K) 20 rel.

Syed Tufail Hussain Bukhari for Petitioners.

Ch. Mehboob Ellahi for Respondent No.1.

2012 Y L R 864

[Islamabad]

Before Shaukat Aziz Siddiqui, J

LALZADA alias LAL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.674-B of 2011, decided on 7th December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.458/ 413/ 401/ 75/ 381-A--- Qanun-e-Shahadat (10 of 1984), Art. 38, 39 & 40---Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, habitually dealing in stolen property, belonging to gang of thieves, theft of car or other motor vehicles---Confession of accused while in police custody---Bail, grant of---Further unquiry---Allegation of Theft of car---Registration of other similar cases against accused---Bail application of accused had been refused by both the courts below---Contention of petitioner was that there was no direct evidence to connect him with the commission of the alleged offence and during custody nothing incriminating was recovered from him---Validity---Court below had ignored the provisions of Articles 38, 39 and 40 of Qanun-e-Shahadat Order, and placed reliance on material which had no recognition in the eye of law and was inadmissible in evidence---No admissible evidence existed to connect the accused with the commission of the alleged offence---Accused was allegedly involved in seven other cases of similar nature but he had been granted bail in all of them by different courts---Court below failed to go through the contents of Fard Nishandahi, in which no date was mentioned on which accused allegedly pointed out place of occurrence and address allegedly mentioned by accused in memo was different from the address of the complainant, from where the car was allegedly stolen---Mere registration of other cases could not be made basis for refusal of bail when accused had succeeded in bringing his case within ambit of further inquiry as envisaged under S.497(2) Cr.P.C---Accused was allowed bail.

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

----S. 497(2)---Bail---Registration of other similar cases---Effect---Mere registration of cases could not be made basis for refusal of bail when accused had succeeded in bringing his case within ambit of further inquiry and probe as envisaged under S.497(2), Cr.P.C.

Saif Ullah Khan Serohy for Petitioner.

Khawaja Javed Iqbal Standing Counsel Asif, A.S.-I. with record for the State.

Complainant in person.

2012 Y L R 879

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Syed UMMAR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.678-B of 2011, decided on 30th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Accused had given cheques to the complainant in settlement of some amount that he had taken from the complainant in the past, which were dishonoured---Bail applications of accused were refused by both the courts below---Validity---Section 489-F, P.P.C, provided three different punishments, namely imprisonment which may extend to three years, or fine or both---Law had to be stretched in favour of the accused and beneficial interpretation had to be made in his favour---Offence with which accused was charged did not fall within the prohibitory clause of section 497 Cr.P.C---Accused had no criminal history and no F.I.R. had been registered against him in the past---No exceptional circumstances existed to deny bail to the accused---Bail petition of accused was allowed and he was granted bail.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Shameel v. The State and others 2009 SCMR 174; Riaz Jaffar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Sikandar Zaman v. The State and others 2011 SCMR 870 fol.

Shah Zeb Khan for Petitioner.

Khawaja Javed Iqbal, Standing Counsel and Abdul Sattar, S.I. for the State.

Abdus Salam Qureshi for Respondent No.2.

2012 Y L R 930

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Malik SAFDAR ALI KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.695-B of 2011, decided on 2nd December, 2011

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.489-F & 406---Dishonestly issuing a cheque, criminal breach of trust---Bail, grant of---Accused had given two cheques to the complainant which were dishonoured---Bail applications of accused were refused by both the courts below---Validity---Sections 406 and 489-F, P.P.C, provided three different sets of punishments, namely imprisonment, or fine or both---Law had to be stretched in favour of the accused and beneficial interpretation had to be made in his favour---Offence under S. 489-F, P.P.C did not fall within the prohibitory clause of S. 497, Cr.P.C---Accused had no criminal history and no F.I.R. had been registered against him in the past---No exceptional circumstances existed to deny bail to the accused---Bail petition of accused was allowed and he was granted bail.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Shameel v. The State and others 2009 SCMR 174; Riaz Jaffar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Sikandar Zaman v. The State and others 2011 SCMR 870; Muhammad Jamil v. The State PLJ 2011 Cr.C. (Lahore) 1087 and Kshif Khan v. The State 2009 PCr.LJ 418 rel.

Malik Amir Dad Awan, for Petitoiner.

Khawaja Javed Iqbal, and Manzoor Ahmed, S.I. for the State.

Mian Abdul Razzaq for Respondent No.2.

2012 Y L R 1194

[Islamabad]

Before Muhammad Azim Khan Afridi, J

AJMAL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.650-B of 2011, decided on 8th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.381-A/411/468/420/471---Theft of a car or other motor vehicles, dishonestly receiving stolen property, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and accusation against him was that of recovery of alleged stolen car which brought the case of the accused within the ambit of S. 411, P.P.C---Accused claimed that he was employed as taxi driver by a person, who claimed ownership of the car recovered---Accused was not a previous convict and it was yet to be established that he had either dishonestly received or retained the same knowingly or having reason to believe the same to be a stolen car---Case of accused did not fall within prohibitory clause of S.497, Cr.P.C and called for further inquiry into his guilt---Bail application of accused was allowed and he was released on bail.

Musharaf Khan for Petitioner.

Shabbir Abbasi, Standing Counsel along with Suleman Shah, A.S.-I.

2012 Y L R 1243

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

SHEHBAZ AHMED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.393-B of 2011, heard on 22nd July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Bail, refusal of---Accused was nominated in the F.I.R. with a specific role and names of witnesses in whose presence amount was entrusted to the accused had also been mentioned in the F.I.R.---Accused remained absent from the scene and from his place of duty without any justification, and was arrested one month after the incident, therefore, delay in lodging F.I.R. could not be considered as fatal for the reason that in such cases complainant initially tries his best to find out the accused and approaches the police as a last resort---No enmity was alleged against the complainant or the police for false involvement of accused---Offence with which accused was charged was non-bailable and discretion of bail could not be exercised in his favour---Bail petition of accused was dismissed, in circumstances.

2011 MLD 459; 2011 PCr.LJ 589; 2008 PCr.LJ 778 and 2008 MLD 1028 distinguished.

Rana Abid Nazir Khan for Petitioner.

Shabbir Ahmad Abbasi, learned Standing Counsel for the State.

Muhammad Saleem Khan Tanoli for the Complainant.

Record produced by the police of Police Station Golra, Islamabad.

Date of hearing: 22nd July, 2011.

2012 Y L R 1478

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Mrs. TAHIRA ASIF MIR---Petitioner

versus

MUHAMMAD HANIF CHAUHAN---Respondent

Civil Revision Petition No.477 of 2004, decided on 29th November, 2011.

Civil Procedure Code (V of 1908)---

----S.115---Revision petition to High Court against judgment/order passed by District Judge under S.115(2), C.P.C.---Maintainability---Such revision petition would not be maintainable/entertainable for being barred by S.115(4), C.P.C.

Muhammad Yousaf's case 1993 MLD 2138 ref.

Nemo for Petitioner.

2012 Y L R 1529

[Islamabad]

Before Riaz Ahmad Khan, J

Messrs SHANDAR PETROLEUM/CNG and 46 others---Petitioners

versus

FEDERATION OF PAKISTAN through Ministry of Petroleum and 2 others---Respondents

Writ Petitions Nos.3128, 3144, 3145, 3156, 3160, 3161, 3171, 3172, 3173, 3177, 3191, 3203, 3204, 3206, 3210, 3236, 3254, 3255, 3258, 3260, 3292, 3299, 3311 and 3312 of 2011, decided on 23rd December, 2011.

(a) Contract Act (IX of 1872)---

----S. 2---Compressed Natural Gas (CNG) Supply Stations, setting up of---Incentive provided by Government inviting general public to invest in CNG Sector---Suspension of gas supply to such Stations by Government due to load-shedding---Validity---Conversion to gas was required to minimize use of petrol and diesel---Policy and procedure for establishment of CNG Stations could not be considered as an incentive---Anything mentioned in policy regarding use of CNG could not be taken as an incentive on part of Government or a promise with a person wanting to establish CNG Station.

PLD 2007 SC 642; 1978 SCMR 327; 1986 SCMR 680; PLD 1973 SC 49; PLD 2011 Lah. 120; PLD 2002 Lah. 359; 1995 CLC 1687; PLD 2011 SC 44; AIR 1977 SC 1496; AIR 1990 SC 1851; 2008 SCMR 17; 2007 PTD 1005; 2010 MLD 690; AIR 1991 SC 14; 2006 YLR 229; 348 U.S. 483 (1955); 174 U.S. 96 (1899) and 2011 YLR 1491 ref.

(b) Constitution of Pakistan---

----Arts. 158 & 172---Islamabad Capital Territory (Administration) Order (18 of 1980), Art.2---Natural gas, well-head of---Priority given to a Province to meet its requirements from such well-head situated in its territory---Extending such priority to other Province(s) or Islamabad Capital Territory by judicial pronouncement---Scope---Such priority given to a Province specified in Art. 158 of the Constitution could not be given to any other Province or Federal Government despite addition of Sub-Article 3 to Art. 172 of the Constitution---Such priority provided in a specific manner by the Constitution could not extended by way of judicial pronouncement---Nothing could be added to the Constitution or any other laws by way of judicial pronouncement for same being meant only for interpretation of constitutional provisions--- Executive authority of Capital Territory vested in the President as same was not part of Punjab---Capital Territory could not be equated with Khyber Pakhunkhwa as Federal Government would not mean such territory---No Article of the Constitution provided such priority to Capital Territory of Islamabad---Principles.

(c) Constitution of Pakistan---

----Arts. 23, 24 & 199---Constitutional jurisdiction of High Court---Scope---Policy introduced by Government---Court could scrutinize and strike down such policy, if it found the same to be arbitrary, unreasonable or violative of law or Constitution, but could not give policy or substitute same by introducing a new policy.

PLD 2007 SC 642, 1998 SCMR 327 and 1986 SCMR 680 rel.

Makhdoom Ali Khan, Barrister Khurram M. Hashmi, Saad M. Hashmi, Sajid ur Rehman Mashwani, Umair A. Rishi, Hyder Ali Khan and Shahzaib for Petitioners (in Writ Petitions Nos.3128, 3171 and 3172, 3236 of 2011).

Syed Hassan Ali Raza for Petitioners (in Writ Petition No.3144 of 2011).

Ch. Abdul Rehman Bajwa for Petitioners (in Writ Petitions Nos.3160, 3177 and 3210 of 2011).

Barrister Sajeel Shehryar for Petitioners (in Writ Petition No.3173 of 2011).

Syed Intikhab Hussain Shah for Petitioners (in Writ Petitions Nos.3191, 3254, 3255, 3258 and 3312 of 2011).

Muhammad Ilyas Sheikh and Rubina Shaheen for Petitioners (in Writ Petition No.3292 of 2011).

Tahir Afzal Abbasi for Petitioners (in Writ Petition No.3203 of 2011).

Muhammad Iqbal Representation of Petitioner (in Writ Petition No.3204 of 2011).

Syed Intikhab Hussain Shah and Ayyaz Shaukat for Petitioners (in Writ Petitions Nos.3206 and 3156 of 2011).

Sheikh Muhammad Suleman for Petitioners (in Writ Petition No.3145 of 2011).

Naveed Malik, Yasir Raja and Qazi Hafeez for Petitioners (in Writ Petitions Nos.3161, 3260 and 3299 of 2011).

Raja Amjad Mehmood for Petitioners (in Writ Petition No.3311 of 2011).

Agha Sikandar, President, CNG Association for Petitioners.

Noor-ul-Amin, Vice-President, C.N.G. Association I.C.T. for Petitioners.

Mirza Mahmood Ahmad form M/O Petroleum.

Asim Hafeez SNGPL.

Muhammad Abid Raja, D.A.-G., Rizwan ul Haq, Principal Law Officer, OGRA, Rehan Nawaz, General Manager, SNGPL for Respondents.

2012 Y L R 1598

[Islamabad]

Before Shaukat Aziz Siddiqui, J

ALI HAIDER---Petitioner

versus

MUBARAK DIN KHAN and another---Respondents

Civil Revision No.13 of 2008, decided on 28th February, 2012.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of fact by the courts below---Principle---High Court does not interfere in concurrent findings, until and unless same are result of misreading and non-reading of evidence, arbitrary, perverse, shocking, un precedented, besides the law, mandate of dictums of superior courts of the country and are without jurisdiction.

2001 SCMR 1700 and 2000 SCMR 974 rel.

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

----Art.133---Fact not cross-examined---Effect---When any witness is not cross-examined on the stance taken by him in examination-in-chief, that tantamount to admission.

(c) Specific Relief Act (I of 1877)---

----Ss.12 & 22---Specific performance of agreement to sell---Refusal to grant decree---Fraud and cheating---Concurrent findings of fact by the courts below---Suit filed by plaintiff was concurrently decreed in his favour by Trial Court as well as by Lower Appellate Court---Validity---Present case was that of cheating, deception, exploitation and nothing but a fraud, as plaintiff through devise of so called agreement defrauded defendant, who was a poor man---To decree any suit, as provided by S.22 of Specific Relief Act, 1877, specific performance was discretionary and courts were not bound to grant the relief merely because, it was lawful---Defendant was at disadvantageous position when so-called agreement was executed, therefore, courts below were required to decline the relief instead of granting the same---High Court, in exercise of revisional jurisdiction, set aside judgments and decrees passed by both the courts below and dismissed the suit---Revision was allowed in circumstances.

2001 CLC 1431; 2000 YLR 1805; 1997 MLD 1975 and 2001 CLC 138 ref.

Syed Ishtiaq Haider for Petitioner.

2012 Y L R 1828

[Islamabad]

Before Shaukat Aziz Siddiqui, J

SAJJAD AHMED---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.769-B of 2011, decided on 16th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.489-F & 420---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property---Bail, grant of---Accused had issued a cheque to the complainant for an agreement to sell a property, but same was dishonored on presentation---Complainant contended that accused was neither paying the amount nor transferring the property back to the complainant, therefore, offence under Ss.489-F & 420, P.P.C had been committed---Contentions of accused were that no property had been transferred in his favour; that accused had been declared innocent in the police investigation, and that offence under S. 489-F, P.P.C, did not fall under the prohibitory clause of S.497, Cr.P.C---Validity---Section 489-F, P.P.C, provided three different punishments depending on the facts and circumstances of the case, namely, imprisonment which might extend to three (3) years or fine or both---Law had to be stretched in favour of the accused and beneficial interpretation had to be made in favour of the accused---Maximum punishment provided for S. 489-F, P.P.C, was sentence of up to three(3) years, which did not fall within the prohibitory clause of S. 497, Cr.P.C, , and in such a case, bail was a rule and refusal an exception---Offence under S.420, P.P.C was also bailable---No exceptional circumstances existed to deny accused's request for bail---Bail petition of accused was allowed and he was granted bail.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Shameel v. The State and others 2009 SCMR 174; Riaz Jaffar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Sikandar Zaman v. The State and others 2011 SCMR 870 rel.

Raja Rizwan Abbasi for Petitioner.

Khawaja Javed Iqbal, standing counsel Muhammad Yousaf, S.I. for the State.

Syed Wajid Ali Gillani for Respondent No.2.

2012 Y L R 1907

[Islamabad]

Before Riaz Ahmad Khan, J

Malik AMJAD PERVAIZ---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.774-B of 2011, decided on 14th February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34--- Qatl-e-amd, common inten-tion---Bail, grant of---Delay in conclusion of trial---Absence of co-accused and witnesses causing delay in conclusion of trial---Contentions of accused were that he was behind bars for more than two years and his trial had not been concluded till date; that according to the police report the occurrence was a "sudden incident"; that accused and deceased were friends and the occurrence did not take place in the manner given in the F.I.R., and that deceased was taken to hospital in the accused's car, which showed that the accused had no enmity with the deceased--Validity---Accused was behind bars for more than two years and his trial had not concluded---Record revealed that on most of the dates, co-accused was absent and applications for exemption were filed on his behalf---Evidence could have been recorded in absence of co-accused, and accused could not be made to suffer on the basis of absence of the co-accused---Court had the duty to ensure attendance of witnesses and if the witnesses were absent, the accused could not be penalized for that---Counsel for accused was in attendance on all the dates except for one date, on which counsel for both parties were absent---High Court without touching the merits of the case, accepted bail petition of accused, and released him on bail.

1983 SCMR 72, 1993 SCMR 427, 2002 SCMR 184, 2001 YLR 2076; 2002 YLR 3836; 2009 YLR 1000; 1999 PCr.LJ 948; 1996 PCr.LJ 704; 1997 MLD 1336 and 1986 PCr.LJ 714 ref.

Raja Rizwan Abbasi for Petitioner.

Mazhar Akram Awan for Respondent No.2.

Muhammad Abid Raja D.A.-G. for the State.

Awais Muhammad S.I., with record.

2012 Y L R 2663

[Islamabad]

Before Noor-ul-Haq N.Qureshi, J

QAMAR ABBAS SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.198-B of 2012, decided on 19th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/34---Qanun-e-Shahadat (10 of 1984), Art. 71---Qatl-e-amd, abetment, common intention---Bail, grant of---Further inquiry---Case of last seen evidence---No direct evidence---Bodies of deceased persons were found lying on the side of the road---Accused was involved in the offence on basis that he was last seen with the deceased persons at a hotel, which was not a strong piece of evidence---Weapon recovered from accused had no significance as Forensic Report did not connect same with the commission of the offence---Although foot prints of shoes taken from the scene matched with the shoes belonging to the accused but there could be many shoes of similar type owned by many persons---Confessional statement of co-accused was not helpful for the prosecution as it did not allege that accused had committed the offence jointly with the co-accused---No direct evidence was available on record and in view of Art. 71 of Qanun-e-Shahadat, 1984, oral evidence must be direct, which was lacking in the present case---Case was one of further inquiry and accused was enlarged on bail accordingly.

2000 PCr.LJ 842; 2000 PCr.LJ 1204; 2000 PCr.LJ 768; 2005 YLR 2418; 2011 PCr.LJ 232; 2010 PCr.LJ 392 and 2009 PCr.LJ 1085 ref.

Anwar Ali Shah for Petitioner.

Muhammad Anar S.I. with record.

2012 Y L R 2889

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MASKEEN SULTAN---Petitioner

Versus

CDA through Chairman---Respondent

Writ Petition No.513 of 2012, decided on 4th May, 2012.

Capital Development Authority Ordinance (XXIII of 1960)---

----S.22--Constitution of Pakistan, Art.199--Constitutional petition---Refusal of Capital Development Authority (CDA) to allot plot to petitioner in lieu of acquisition of his property on ground that he having less than 300 square feet of BUP was not entitled to allotment of plot---Validity---Petitioner in another case having BUP measuring 282 square feet was held by Supreme Court to be entitled to allotment of plot---Capital Development Authority had acquired petitioner's property about half a century ago---Nobody could believe that CDA would deprive affectees from their accrued vested rights---High Court while deprecating such illegal and corrupt practices of Capital Development Authority directed to allot plot to petitioner within specified time.

Ch. Naeem Ali Gujar for Petitioner.

M. Ramzan Chaudhry and M. Nazir Jawad for Respondents.

Capt. (Retd) Farid-ud-Din, Director (L&R) CDA.

2012 Y L R 6

[Sindh]

Before Salman Hamid, J

MUHAMMAD SAJID---Plaintiff

Versus

Mrs. ZAIB-UN-NISA---Defendant

Suit No.848 of 2006 and C.M.A. No.11056 of 2010, decided on 2nd June, 2011.

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

----O.VIII, R. 13---Legal representatives---Non-filing of list---Effect---Provisions of O.VIII, R.13, C.P.C. are directory and not mandatory---No consequence or penalty is attached in not conforming with such provisions strictly.

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

----O.V, R.20, O.VIII, R.13 & O.XXII, R.4(3)---Specific Relief Act (I of 1877), Ss.42 & 54---Death of defendant---Legal representative, impleading of---After death of defendant, application was filed to implead her step-son as defendant---Step-son of deceased defendant declined to be impleaded as defendant on the ground that he was not a legal representative of the deceased defendant---Validity---Defendant and/or legal representatives of defendant, whose list was available on the record in the wake of step-son's unwillingness to become defendant would continue to hold the field---Such legal representatives would be arrayed as defendants in the suit as requirements of provisions of O.VIII, R.13 C.P.C., if not strictly, at least close to it had been complied with---Addresses and other particulars of legal representatives, with little efforts could always be located---Right of defence of such legal representatives, in all fairness, would not be thrown out only because the list of legal representative of deceased defendant which was available on the record of file did not fall squarely to the suiting of O.VIII, R.13 C.P.C.---Plaintiff and step-son of deceased defendant, in the first instance, might find out the particulars and/or addresses of legal representatives of deceased defendant and thereafter get them served and in case of failure, such legal represen-tatives might always be served through substituted service---High Court directed the plaintiff as well as the step-son of deceased defendant to make effort to find out particulars of legal represen-tatives of deceased defendant---High Court further directed that in case of failure, legal representatives might by served through substituted service as provided under O.V, R.20 C.P.C.---Application was disposed of accordingly.

Bibi Khudeja through L.Rs. v. Pir Sarwaruddin Shah through L.Rs. and others 1992 MLD 490; Allah Wasaya and 5 others v. Irshad Ahmed and 4 others 1992 SCMR 214 and Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193 ref.

H.A. Rehmani for Plaintiff

Mushtaque A. Memon for Defendant

2012 Y L R 12

[Sindh]

Before Muhammad Athar Saeed, J

IMRAN MEHMOOD and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.11 and M.As Nos. 382, 211 and 212 of 2011, decided on 17th August, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 493, 173 & 561-A---Penal Code (XLV of 1860), Ss.420, 468, 469, 408 & 34---Cheating, forgery, criminal breach of trust by clerk or servant---Quashing of order, application for---Application of intervenor for impleading him as a party to the proceedings---Report submitted by the Police Officer under S.173, Cr.P.C. having been rejected by the Judicial Magistrate, accused had filed application under S.561-A, Cr.P.C. for setting aside order of Judicial Magistrate---Intervenor filed application for impleading him as party in the proceedings on the ground that he was the person who got the F.I.R. registered against accused, he had a vested interest in the proceedings of application under S.561-A, Cr.P.C. for quashing of order of Judicial Magistrate---Said application of intervenor was strongly opposed on the ground that inherent powers of the High Court under S.561-A, Cr.P.C. could only be exercised by the court when no other provision of law was provided------Validity---Provisions of S.493, Cr.P.C. had provided that private person could instruct a pleader to prosecute in any case only where there was a charge under enquiry, trial or appeal which would not extend to all the criminal matters pending in any court---Intervenor had rightly stated that S.493, Cr.P.C. did not provide him any opportunity to interfere and seek permission from the court to assist the prosecution in that criminal miscellaneous application---Intervenor, having acquired a vested right in the matter, any decision of the court would affect him considerably---Application of the intervenor was allowed to the extent that before taking any decision, proposed intervenor, could be provided an opportunity of presenting his arguments in the matter and file any documents in support of his pleadings.

Mst. Zahida Sattar and others v. Federation of Pakistan PLD 2002 Kar 408; Muhammad Ayaz alias Cheena and others v The State PLD 2004 Kar. 652; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Fauji Sugar Mills v. Province of the Punjab and others 1996 CLC 592; H.M. SAYA and Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65; Sher Alam and another v. The State 1999 PCr.LJ 81; Sher Alam and another v. The State 1998 PSC (Crl.) 1060; Dildar v. Safdar and 2 others 1990 PCr.LJ 158; Muzaffar Iqbal v The State 1993 PCr.LJ 125 and Moinuddin v. Punnoo and another 1993 Cr.LJ 215 ref

Shahkot Bus Service v. State and another 1969 SCMR 325 rel.

M. Ilyas Khan and Muhammad Farooq for Applicants

Dr. Faroagh Naseem for the Intervenor Complainant

Khadim Hussain Assistant Prosecutor-General Sindh

2012 Y L R 21

[Sindh]

Before Shahid Anwar Bajwa, J

NIZAM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-46 of 2011, decided on 26th September, 2011.

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

----Ss. 497/498---Bail---Abscondence of accused---Effect---Fugitive from law loses some of his rights both under procedural law and the substantive law, but he does not lose all his rights---Court, therefore, while dealing with the case of an absconder from law should take a stricter view and proceed with far greater degree of circumspection.

Mitho Pitafi v The State 2009 SCMR 299; Mehmood Khan v The State 2007 PCr.LJ 752 and Hakim Ali v The State 2010 MLD 376 ref

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

----S. 498---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Pre-arrest bail, grant of---Accused was member of a group of 30 persons, but he was not alleged to have caused any injury to any one---Two co-accused with a similar role in the incident had been granted bail by Trial Court and the accused on the principle of consistency was also entitled to the same relief---It would be an exercise in futility to compel the accused to be arrested first, approach Trial Court with bail application and plead rule of consistency there, which aspect could well be gone into by High Court even at pre-arrest bail stage---Considering the abscondance of accused it would be proper to demand higher surety---Interim pre-arrest bail already granted to accused was consequently confirmed subject to enhancement of amount of surety and P.R. bond from Rs.300,000 to Rs.500,000---Pre-arrest bail was granted accordingly.

Mitho Pitafi v The State 2009 SCMR 299; Mehmood Khan v. The State 2007 PCr.LJ 752; Hakim Ali v The State 2010 MLD 376 and Deedar Ali v. The State SBLR 2010 SC 464 ref

Achar Khan Gabole for Applicant

Zulifqar Ali Jatoi D.P.G. for the State.

2012 Y L R 26

[Sindh]

Before Shahid Anwar Bajwa, J

RANJHO and 5 others---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No.S-839 and M.As Nos.4312 and 4313 of 2011, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/311/147/148---Qatl-e-amd---Bail, refusal of---Accused had brutally murdered the alleged female abductee who was in advanced stage of pregnancy in a field---Complainant had identified the accused persons---Persons who commit an offence on a female deserved no leniency and concession of discretionary relief by the court---Court should adopt an activist approach and such accused should be shown a conduct as harsh as the crime is despicable---Victim in the case was a pregnant woman who was still in the budding years of youth---Bail was declined to accused in circumstances.

Shamsuddin Kobhar for Applicants

Zulfiqar Ali Jatoi, D.P.-G

2012 Y L R 36

[Sindh]

Before Imam Bux Baloch, J

PAKISTAN NATIONAL SHIPPING CORPORATION and another---Applicants

Versus

Malik AYAZ SHARIF---Respondent

Civil Revision Application No.258 of 2010, decided on 19th September, 2011.

Civil Procedure Code (V of 1908)---

----S.115---Pakistan National Shipping Corporation (Contributory Provident Fund) Regulations, 1979, Reglns. 14 & 17--- Revisional jurisdiction--- Object, purpose and scope---Concurrent findings of fact by two courts below---Plaintiff, after serving Pakistan National Shipping Corporation for 26 years resigned from service---Plaintiff sought recovery of his Provident Fund as the same was contribution made by him during his service---Suit was decreed by Trial Court in favour of plaintiff and appeal filed by defendants was dismissed by Lower Appellate Court---Validity---Revisional jurisdiction of High Court was primarily intended to correct errors made by subordinate courts in exercise of their jurisdiction---Erroneous decisions of facts were not ordinarily revisable except when decision was based on no evidence, inadmissible evidence or perverse so as to cause grave injustice and in revisional jurisdiction, Court could interfere with findings of courts below only if such Courts had exercised their jurisdiction illegally and in breach of some provision of law or some material irregularity---Concurrent findings on a question of fact or mixed question of law and facts, if suffered from misreading or non-reading of evidence or were based on no evidence or inadmissible evidence, High Court in exercise of revisional jurisdiction should correct the error committed by subordinate courts but in absence of any defect of misreading or non-reading of evidence in concurrent findings of two courts below on such question, interference of High Court in revision would amount to improper exercise of revisional jurisdiction---Re-examination and reappraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn by subordinate courts on a question of fact was erroneous---Defendants were unable to point out any irregularity, non-reading or misreading of evidence from record---Two courts below had given cogent reasons and in such circumstances High Court was reluctant to exercise of revisional jurisdiction in favour of defendants---Revision was dismissed in circumstances.

Muhammad Alam v. Noor Muhammad 1973 SCMR 606; Bharoo and 2 others v. Chief Settlement Commissioner and 2 others 1999 SCMR 786; Falak Sher v. Mohammad Mumtaz and 2 others 1992 MLD 1879; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Shahid Javed v. Abdul Rahim and 4 others 2008 YLR 126; K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332 distinguished

Alamgir Khan through L.Rs. and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54; Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 and Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 distinguished.

Waqar Muhammad Khan for Petitioner

Respondent in person

Date of hearing: 5th September, 2011.

2012 Y L R 45

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL WAHAB alias TALBAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.987 of 2011, decided on 30th August, 2011.

(a) Criminal Trial---

----Person subsequently joining the accused in the crime---Liability---If a person subsequently joins in crime, he is to be burdened with the same liability.

Ahmed Hussain alias AMI and others v The State and others PLD 2008 SC 110 ref

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

----S. 497---Penal Code (XLV of 1860), Ss.371-A, 371-B, 376 & 511---Prostitution/ rape---Bail, refusal of---Two girls had been abducted, brought to the city, lodged in a house in an ill-reputed locality and pressed into prostitution---Some Police personnel had allegedly committed zina with the girls---Present accused, also a Police Official, regularly visited the said place---Police was duty bound to protect the citizens and to prevent commission of crime---Mere presence of a Police personnel at a particular place might at the one hand act as a deterrent for those who wished or intended to commit a crime and might on the other hand be seen in the circumstances as protection being provided by the Police to the criminals---Accused being a Police personnel had visited a place in an ill-reputed locality, where abductees were lodged and pressed into prostitution---Accused, therefore, was not entitled to discretionary relief of bail and the same was declined to him accordingly.

Dr Muhammad Aslam v The State 1993 SCMR 2288; Shahid Ali v The State 2006 YLR 1866; Zafar Iqbal v The State 2002 MLD 454; Manzoor and 4 others v The State PLD 1972 SC 81 and Ahmed Hussain alias AMI and others v The State and others PLD 2008 SC 110 ref

Aman Gul Khattak for Applicant

Imtiaz Ali Jalbani, A.P.-G For Respondent

2012 Y L R 59

[Sindh]

Before Mushir Alam, C.J. and Syed Hassan Azhar Rizvi, J

MUHAMMAD SHOAIB GANDHI and another---Petitioners

Versus

PROVINCE OF SINDH, through Secretary and 2 others---Respondents

Constitution Petition No.D-2317 of 2011, heard on 12th October, 2011.

West Pakistan Board of Revenue Act (XI of 1957)---

----S.8---West Pakistan Land Revenue Act (XVII of 1967), S. 164---Constitution of Pakistan, Art. 199---Constitutional petition---Board of Revenue---Power to remand---Order passed by Member Board of Revenue was assailed under section 8 of West Pakistan Board of Revenue Act, 1957, before Full Board and the matter was remanded to the Member for re-examination of the matter---Plea raised by petitioners was that one of the Members of Full Board was the same whose order was assailed in revision---Validity---Board of Revenue, in exercise of its powers under section 164 of West Pakistan Land Revenue Act, 1967, read with section 8 of West Pakistan Board of Revenue Act, 1957, either on its own motion or on application of any party could call for record and decide the matter afresh after hearing all the parties or remand the case to any subordinate functionary for decision in accordance with law---Member of Board of Revenue, whose order was assailed before Full Board, was no more the Member of Board of Revenue and was not part of Full Board, which remanded the matter to the Member for decision in accordance with law--High Court remanded the matter to Member Board of Revenue to decide the appeal, which was deemed to be pending before it---Petition was disposed of accordingly.

Azizur Rehman Khund and Shahid Memon for Petitioners

Saifullah, A.A.-G., Ahmed Pirzada and Ghulam Shabbir for Respondents Nos. 2 and 3

Date of hearing: 12th October, 2011.

2012 Y L R 74

[Sindh]

Before Faisal Arab, J

Mrs. GHAZALA IFTIKHAR---Appellant

versus

CONTROLLER/ADDITIONAL CONTROLLER OF RENTS and another---Respondents

First Rent Appeal No.33 and C.M.A. No.3396 of 2010, decided on 4th October, 2011.

(a) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17---Ejectment of tenant---Bona fide personal need---Proof--Subsequent events--Letting out the premises---Landlord sought ejectment of tenant on the plea of bona fide personal need for himself---Validity---No need for establishing anything else except that landlord needed the premises for his personal need---Landlord did not have to give any further details as to how he would utilize the same as residential premises was to be utilized for residential purpose only---Subsequent events could be taken into consideration by Rent Controller---Failure of landlord to occupy premises without any justification recoiled against his plea of landlord---Bona fide need of landlord was not proved in circumstances.

PLD 1978 SC 220 rel

(b) Cantonments Rent Restriction Act (XI of 1963)---

----Ss.17 & 24---Appeal---Ejectment of tenant---Default in payment of monthly rent---Contention of landlord was that tenancy agreement had provided that rent was payable in advance on 5th of each calendar month and rent for the months of September and October, 2007 was tendered for the first time through money order on 17-11-2007---Ejectment application filed by landlord was allowed by Rent Controller and eviction order was passed against tenant on the ground of default in payment of monthly rent---Validity---Rent for September and October, 2007, was tendered on 17th November, 2007 i.e. well beyond the statutory period of 15 days---Default period commenced from 21-9-2007, therefore, eviction order was rightly passed by Rent Controller---Appeal was dismissed in circumstances.

2006 CLC 274; 2001 SCMR 671 and PLD 2003 Kar 34 ref

Muhammad Umer Lakhani for Appellant

Muhammad Zahid Kabeer for Respondents

2012 Y L R 83

[Sindh]

Before Faisal Arab, J

Syed ABID ALI---Petitioner

versus

MUHAMMAD SHAKIR HUSSAIN and 2 others---Respondents

Constitution Petition No.S-355 of 2010, decided on 6th October, 2011.

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

----Ss.15 & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Change of owner---Tender of rent---Power of attorney---Previous owner informed the tenant about sale of premises but did not provide address of new tenant, therefore, tenant had been depositing rent in court---Attorney of landlord filed ejectment application against tenant on the plea of default in payment of rent---Rent Controller passed eviction order against tenant but Lower Appellate Court allowed the appeal on the ground that tenant did not commit default as new landlord did not send notice under section 18 of Sindh Rented Premises Ordinance, 1979---Validity---Purpose of execution of power of attorney was that when it was demanded by a third person, the attorney was bound to show to him, in order to demonstrate that he was authorized by the owner, to act as attorney on his behalf---Without showing copy of power of attorney, no legal obligation was created on the tenant to treat a stranger not as owner or attorney of the owner---Even if tenant came to know about address of person who claimed to be the attorney of owner, unless he demonstrated through documents that he had been authorized to collect rent on behalf of owner, no legal obligation was created on tenant to pay rent to such person---No power of attorney having been shown to tenant, Lower Appellate Court has rightly allowed the appeal on the ground of no default in payment of rent---High Court declined to interfere with the findings of Lower Appellate Court---Petition was dismissed in circumstances.

1990 CLC 904; 2001 SCMR 678; 2002 SCMR 237; 2003 MLD 480; 2008 CLC 431; 2010 MLD 1543; 2008 SCMR 1140; 2009 SBLR 816 and 2001 SCMR 1888 ref

Niamat Ali Randhawa for Petitioner

Adnan Ahmed for Respondent No.1

2012 Y L R 94

[Sindh]

Before Salman Hamid, J

MAZHAR SAYEED---Plaintiff

versus

Messrs ATIF BUILDERS (PVT.) LTD. and 5 others---Respondents

Suit No.390 and C.M.As. Nos. 2721, 2722 and 9328 of 2009, decided on 13th May, 2011.

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

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Cancellation of document, declaration of title and injunction---Interim injunction, grant of---Plaintiff sought restraining of defendants from selling, alienating, encumbering or disposing of properties in question---Validity---Properties in question were in the name of defendant-company---Even earlier, the plaintiff had also filed a suit for declaration, administration, for accounts, distribution, possession, mesne profit and permanent injunction and no case for injunctive relief was made---Plaintiff did not have a prima facie case, nor balance of convenience was in his favour and he would not suffer irreparable loss---Immovable properties in question were in the name of defendant company and not in the name of plaintiff---High Court declined to issue interim injunction in favour of plaintiff and against defendants---Application was dismissed in circumstances.

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

----O.XL, R. 1---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Cancellation of document, declaration of title and injunction---Receiver, appointment of---Plaintiff failed to make out a prima facie case for interim injunction as properties in question were in the name of defendant-company---No case for appointment of a Receiver, in circumstances, was made out by plaintiff against suit properties---Application was dismissed in circumstances.

M. Nishat Warsi for Plaintiff

K.A. Wahab for Defendants Nos.2, 3 and 4

Nemo for Defendants Nos.1 and 5

Date of hearing: 3rd May, 2011.

2012 Y L R 103

[Sindh]

Before Aqeel Ahmed Abbasi, J

AMANULLAH---Applicant

versus

THE STATE---Respondent

Bail Application No.500 of 2011, decided on 11th May, 2011.

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

----Ss. 497(2) & 561-A---Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010), Ss.8 & 27---Encroachment---Bail application, rejection of---Jurisdiction of High Court---Scope---Trial Court had dismissed bail application of accused and accused had filed bail application before High Court---State counsel had raised objection as to the maintainability of said bail application on the ground, of lack of jurisdiction of High Court---Validity---No prohibitory clause existed in Sindh Public Property (Removal of Encroachment) Act, 2010 which ousted the jurisdiction of the High Court; either for the purpose of grant of bail or otherwise---Under S.27 of Sindh Public Property (Removal of Encroachment) Act, 2010, an appeal before the High Court had been provided against the order passed by the Special Court---Bail application arising out of an order passed by the Special Court could be legally entertained by High Court for disposal on merits by treating the same under S.27 of the Sindh Public Property (Removal of Encroachment) Act, 2010, read with S.497, Cr.P.C.---By exercising inherent powers under S.561-A, Cr.P.C., the order of release could also be passed by the High Court to meet the ends of justice, more particularly, where there was no separate procedure provided for such purpose---Objection raised by State counsel, being misconceived, was rejected---Bail was granted.

Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607; Saleem Hussain v. State PLJ 1996 Cr.C. (Lahore) 916; Imam Bux alias Mama alias Akhtar and another v. The State 2003 PCr.LJ 643 and Haji Ghulam Ali v. The State through A.G. N.W.F.P, Peshawar and another2003 SCMR 597 ref

Haji Ghulam Ali v. The State through A.G. and N.-W.F.P. Peshawar and another 2003 SD 862; Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 and F. Brummel and 3 others v. The State PLD 1986 Kar. 390 rel.

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

----S. 497(2)---Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010), S.8---Encroachment---Bail, grant of---Further inquiry---Tentative assessment of available record showed that name of accused had not been mentioned in the F.I.R., nor any role had been assigned to the accused---No incriminating material had been recovered from accused, nor the same had been produced by the prosecution---No independent witness of the alleged offence was available---Accused was arrested under mistaken identity---Record revealed that civil litigation was already pending in respect of subject land, which was allotted and leased out several years back---Survey was also conducted on a number of times by the government Officials, according to which the area occupied by the accused was less than the area which was leased out to them---Allegations contained in the F.I.R., were vague and no specific allegation of encroachment had been raised by the complainant only some alleged violations of the terms of allotment/lease, had been highlighted---Application of S.8 of Sindh Public Property (Removal of Encroachment) Act, 2010, appeared to be doubtful---Prosecution story, in circumstances, could not be treated free from doubt and the matter required further inquiry; whereas minimum punishment provided under S.8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010 was one year---Bail, could not be withheld as punishment, whereas grant of bail in bailable offences was a rule and refusal an exception---Law was not to be stretched in favour of prosecution---Accused having made out a case for grant of bail, he was admitted to bail, in circumstances.

Khawaja Naveed Ahmed and Junaid Farooqui for Applicants.

Saleem Akhtar Buriro, A.P.-G., along with S.H.O. Nayyar-ul-Haq, P.S. Anti-Encroachment Cell as well as Ghulam Farooq, Mukhtiarkar, Gulshan-e-Iqbal Town, Karachi for Respondents.

Dates of hearing: 26th, 28th and 29th, April, 2011.

2012 Y L R 124

[Sindh]

Before Syed Hasan Azhar Rizvi, J

TANZEEL-UR-REHMAN

and 2 others---Applicants

versus

THE STATE---Respondent

Bail Application No.981 of 2011, decided on 29th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/506-B/34--- Cheating and dis-honestly inducing delivery of property, criminal intimidation---Bail, refusal of---Accused persons had deprived number of persons from their savings and robbed heavy/huge amount from the innocent persons, which inferred that accused were habitual and desperate criminals, against whom several other cases of like nature were also pending---Two of the main/star witnesses had already been examined by the Trial Court, who had implicated accused persons in the offence and deposed their roles at the time of incident and identified them before the trial Court---Accused were not entitled for concession of grant of bail, in circumstances---Bail application was dismissed, with direction to the Trial court to conclude the trial within a period of two months.

Zia Hussain Shah for Applicants

Shahid Ahmed Sheikh A.P.-G for the State

Complainant present in person.

2012 Y L R 133

[Sindh]

Before Nisar Muhammad Shaikh, J

MUHBAT alias AZAM---Applicant

versus

THE STATE---Respondent

Bail Application No.S-850 and M.A. No.4146 of 2010 and M.As. Nos.195 and 51 of 2011, decided on 14th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Co-accused who was nominated together with accused in the very F.I.R., had been let off by the Police during the investigation---Such fact had made the case of accused to be fit one in which further inquiry was needed, especially when case was of ineffective firing, as none had sustained any injury on account of alleged firing---Accused was granted bail, in circumstances.

Fazal Qadir Memon for Applicant

Shahid Ahmed Shaikh, A.P.-G., Sindh for the State

2012 Y L R 145

[Sindh]

Before Salman Hamid, J

Haji ZANGI KHAN---Plaintiff

versus

Mst. SAEEDA KHATOON and another---Defendants

Civil suit No.367 of 2007 and C.M.As. Nos. 11417 and 1672 of 2009, decided on 13th May, 2011.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration of title and injunction---Application for impleading as party---Applicant, during pendency of suit filed application to be impleaded as defendant on the ground that he was a necessary party as the suit property had been gifted to him on 4-7-2004---Validity---If the suit property was gifted in the year, 2004, as claimed by the applicant to him and defendant, then there was no incident available to the defendant to file cases against his sister who was alleged to be the donor---All suits were initiated later in time than the date of gift deed in question---Application to be impleaded as party was not only meritless but mala fide, aimed at to further aggravate, confuse and complex the proceedings---Application to be impleaded as party was dismissed in circumstances.

Anwar M. Khan for Plaintiff

Syed Hassan Ali for Defendant No.2

Date of hearing: 3rd May, 2011.

2012 Y L R 151

[Sindh]

Before Ahmed Ali M. Shaikh, J

MEVO RIND---Applicant

versus

THE STATE---Respondent

Bail Application No.S-462 of 2011, decided on 19th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (LXV of 1860), Ss.395, 435 & 504---Dacoity, mischief by fire or explosive substance, intentional insult---Bail, grant of---F.I.R. in the case was lodged after more than one month and twenty days---Such delay did not reflect that after the incident complainant approached the concerned Police Station and Police refused to register his case---Perusal of mashirnama of wardat had revealed that chaff had been taken away, whereas some chaff was set on fire---F.I.R. alleged that after loading the chaff in the tractor trolly the remaining chaff was set on fire by accused party, but it was a mystery as to how the ash of such burnt chaff was found at the place of occurrence, even after more than 50 days which could have disappeared with the passage of time---Section 395, P.P.C. provided punishment with imprisonment for life or rigorous imprisonment for a term not less than 4 years nor more than 10 years, whereas Ss.435 & 504, P.P.C., did not carry punishment beyond 7 years and did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused could be granted bail while considering the lesser sentence as provided in S.395, P.P.C.---F.I.R. having been registered with inordinate delay without furnishing any explanation and during investigation no incriminating articles had been recovered from the accused, he had succeeded to make out a case for bail as no reasonable ground was to believe that accused had committed the offence punishable with death, imprisonment for life or 10 years---Accused was released on bail, in circumstances.

2006 YLR 3167 rel

Fazal Qadir Memon for Applicant

Syed Meeral Shah, D.P.G. for the State

2012 Y L R 158

[Sindh]

Before Salman Hamid, J

Messrs HASANI ESTATE through Proprietor---Plaintiff

versus

Messrs VICTORY ASSOCIATES through Proprietor---Defendant

Civil Suit No.1421 of 2008, decided on 28th April, 2011.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for specific performance of contract, declaration, damages and permanent injunction---Application for interim injunction---Plaintiff, an Estate Agency having experience of marketing in estate, filed suit with the prayer that letter allegedly issued by defendant for cancellation of agreement was unlawful and of no legal effect; and that they be allowed to act thereunder---Under agreement in question, the plaintiff was entitled to 2% commission of booking of shops, flats and offices, which were to be constructed in the building in question and nothing beyond that---Plaintiff to intimidate defendant, had caused interference and harassment; and had not allowed the defendant to raise construction of the building---Defendant had filed application for interim injunction against the plaintiff, to protect his right of raising construction on the building, which was being hampered by the plaintiff---Restraining orders were passed by the courts to cultivate cause of justice, even if the case would not fall strictly within the provisions of Rr.1, 2 of O.XXXIX, C.P.C.---Such was a judicial process whereby a party was ordered to do or to refrain from doing a particular act and such refraining order, in nature could either be mandatory or prohibitory---Injunction was preventive or prophylactic for the purpose of preserving the status of a given property---Since it had come on record that the plaintiff was causing hurdles in construction of the building, it would be just and proper, if the plaintiff was restrained from such interference, more particularly for the reason that the plaintiff had no concern with the construction---All the ingredients of injunction were alive, application for grant of interim injunction was allowed and the plaintiff was restrained from interfering into construction of the defendant, directly or through anyone else, in circumstances.

Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others 1985 CLC 261 and Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 distinguished.

Adnan Ahmed for Plaintiff

S. Abid Hussain Shirazi for Defendant

Date of hearing: 22nd February, 2011.

2012 Y L R 167

[Sindh]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

MUHAMMAD JAMAL---Petitioner

versus

FEDERATION OF PAKISTAN and 2 others---Respondents

C.P. No.D-1091 of 2011, decided on 12th April, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Customs Act (IV of 1969), Ss.32, 79, 155 & 156---Sales Tax Act (VII of 1990), S.33---Income Tax Ordinance (XLIX of 2001), S.148---Giving untrue statement and other offences under Customs Act, 1990 Sales Tax Act, 1969 and Income Tax Ordinance, 2001---Protective bail, grant of---High Court without touching the merits of the case, admitted accused to protective bail for a period of 15 days to surrender before the Trial Court, subject to furnishing solvent surety in the sum of Rs. one million---Accused was cautioned that said concession of protective bail would not be extended for any reason.

Syed Mehmood Alam Rizvi and Irfan Aziz for Petitioner.

2012 Y L R 178

[Sindh]

Before Nisar Muhammad Shaikh, J

GHAZI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-602 of 2011, decided on 30th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/353/34---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---No Police Officials from the two Police Stations sustained any sort of injury; and even their vehicles were not damaged, though the culprits including the accused had allegedly fired upon them repeatedly---Application of S.324, P.P.C., in circumstances, needed further inquiry, while the offence under S.353, P.P.C. was bailable---Police had completed its investigation and the challan had also been submitted---Accused was granted bail, in circumstances.

Miss Shabana Kausar Jatoi for Applicant

Shahzado Saleem Nahiyoon, A.P.-G. Sindh for the State

2012 Y L R 183

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ALI ANWAR and 10 others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary Revenue Department, Hyderabad and 34 others---Respondents

Constitution Petition No.D-1284 of 2009, decided on 6th September, 2011.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Condemned unheard---Allotment of land---Principles of natural justice---Petitioners were aggrieved of allotment of land in question by Board of Revenue in favour of respondents---Petitioners alleged that they were in possession of agriculture land which belonged to government, in the capacity of haries, for the last 30 to 40 years and their names were also mentioned in the record of revenue as haries and they were also paying land revenue to government---On the contrary, respondents were posing and claiming their vested right which they had allegedly inherited from their predecessor-in-interest---Validity---Order passed by Board of Revenue did not demonstrate or divulge in any manner that claim of petitioners had been examined in the light of documentary evidence---Attendance of one petitioner was mentioned in the order along with his advocate but on the contrary, petitioners asserted that neither any petitioner nor their advocate was present at time of passing of the order by Board of Revenue, as they were not allowed to join proceedings, therefore, they were totally prevented and precluded from producing documents substantiating their claim over land in question---High Court in exercise of Constitutional jurisdiction set aside the order passed by Board of Revenue and remanded the case for decision afresh---Petition was allowed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Provision of Art. 199 of the Constitution has been introduced to correct actions of government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction---If citizens of the country are deprived of the guarantees given to them under the Constitution, illegally or not in accordance with law, then Art. 199 of the Constitution can always be invoked for redress---When impugned action is without jurisdiction. Mala fide, unlawful and passed in disregard of law and principles of natural justice, the same amounts to denial of justice---When any finding of fact is based on no evidence at all or ignoring material evidence or on consideration of inadmissible evidence or exercise of jurisdiction perversely or illegally causing palpable injustice, the jurisdiction of High Court can always be invoked under Art.199 of the Constitution to rectify the wrong and injustice occurred to a party.

Province of Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Dilawar Jan v. Gul Rehman 2001 SC 149 ref

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Jurisdiction of High Court, exercise of---Principles---High Court in exercise of Constitutional jurisdiction cannot sit as a court of appeal but where order passed by court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified---If error is so glaring and patent that it may not be acceptable, then in such an eventuality High Courts would interfere---High Court will also interfere when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken.

Khadim Hussain Mangi for Petitioners

Mukesh Kumar G. Karara for Respondents Nos. 9 to 31.

A.M. Mobeen Khan for Interveners

Date of hearing: 6th September, 2011.

2012 Y L R 206

[Sindh]

Before Irfan Saadat Khan, J

MUHAMMAD SALMAN AHMED SIDDIQUI---Applicant

versus

THE STATE---Respondent

Bail Application No.790 of 2011, decided on 30th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.489-B & 489-C/34---Using as genuine, forged or counterfeit currency notes and passing of forged or counterfeit currency notes---Bail, grant of---Further inquiry---Black foreign currency notes were recovered from the possession of accused, which made out a case for further inquiry as it had not been stated, whether possession of said black notes constituted an offence which fell within the ambit of Ss.489-B or 489-C, P.P.C.---Charge made out against accused was that of possession of counterfeit US Dollar notes by him, whereas, in the final challan, when accused was apprehended, it had been opined that black US Dollar notes, were recovered from the possession of the accused, which could be converted, after washing, through chemicals, as original US Dollar notes, which had made a fit case for further inquiry to ascertain whether those black notes by some chemical process could be converted into US Dollar notes or not---While considering bail application deeper appreciation of the evidence was not permitted---Case being fit for further inquiry, accused was allowed bail, in circumstances.

M. Dawood v. The State 2008 SCMR 173 and Habibur Rehman v The State 2009 MLD 614 ref

Irfan Aziz for Applicant

S. Qamarul Islam, Standing Counsel, along with I.O. Raees Ahmed.

2012 Y L R 211

[Sindh]

Before Muhammad Tasnim, J

ASIF---Applicant

versus

THE STATE---Respondent

Bail Application No.994 of 2011, decided on 14th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Name of accused did not appear in the F.I.R.---No identification parade had been held before the Magistrate---Description of allegedly recovered mobile phone from accused had not been mentioned, either in the F.I.R. or in the recovery memo---Mobile phone SIM belonging to the complainant had not been recovered from accused---None of the articles allegedly snatched from the complainant as per F.I.R. was recovered from accused or his co-accused---Said facts had made the case of accused of further enquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Suleman v Riasat Ali and another 2002 SCMR 1304; Muhammad Rafique v The State 1997 SCMR 412; Atta Muhammad v The State 2004 PCr.LJ 1431 and Syed Saeed Shah v. The State PLD 2002 Kar. 98 rel

Naleymitho alias Muhammad Ishaque for Applicant

Muhammad Iqbal Awan, A.P.-G for the State, along with I.O./Sub-Inspector Shahid Ahmed Khan of P.S. Azizabad

Complainant in person

2012 Y L R 218

[Sindh]

Before Muhammad Ali Mazhar, J

GUL MUHAMMAD---Applicant

versus

KAIMUDDIN---Respondent

Civil Revision Application No.S-87 of 2009, decided on 21st October, 2011.

(a) Limitation Act (IX of 1908)---

----Art. 10---Civil Procedure Code (V of 1908), O.XLI, Rr.1, 31---Suit for pre-emption---Limitation---Article 10 of Limitation Act, 1908 had provided one year limitation to enforce right of pre-emption, whether the right was founded on law or general usage, or on special contract---Time would begin to run when the purchaser would take, under the sale sought to be impeached, physical possession of the whole of the properly sold, or where the subject of sale did not admit of physical possession, where the instrument of sale was registered---Appeal of pre-emptor was dismissed in limine because the appellant argued that law of limitation was against the Injunctions of Islam---Federal Shariat Court had jurisdiction to examine and decide the question, whether or not any law or provision of law was repugnant to the Injunctions of Islam---No such ground was taken by the appellant/pre-emptor in the memo of appeal and if it was orally argued by the appellant, who appeared in person, even then that could not absolve the Appellate Court from its duty to decide the question of limitation, whether the claim of plaintiff was justified or not, keeping in view the date of knowledge of sale transaction pleaded in the plaint, and provided him right to apply which could only be judged from the evidence.

2009 SCMR 630 distinguished.

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

----O.XLI, Rr.1, 31---Judgment in appeal---Scope---Statutory right of appeal conferred the right of hearing the whole dispute, unless expressly restricted in its scope; and the Appellate Court, was not confined to the reasons, which had been given by the subordinate court; or the grounds for its decision---Right of appeal was a substantive and vested right, and not a matter of mere procedure---Under O.XLI, R.31, C.P.C., it was mandatory that judgment passed by the Appellate Court would state the points for determination, the decision thereon, the reasons for the decision and whether the decree appealed from was reversed or varied, the relief to which the appellant was entitled to such rule made it apparent that for just and proper decision, the Appellate Court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purpose of pronouncing its judgment---Phrase "points for determination", in O.XLI, R.31(a), C.P.C. referred to all important questions involved in the case---Said rule had been incorporated in the Code for framing the points for determination so that the judgment should be self-explanatory, illuminative and in the nature of a speaking order.

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

----S. 115---Revisional jurisdiction---Scope---Every finding of fact was not immune from interference in revisional jurisdiction, when the courts below would commit jurisdictional illegality---Where decision on fact was based on no evidence or inadmissible evidence or was so perverse that grave injustice would result, revisional jurisdiction was justified---When the findings were based on conjectural presumptions, erroneous assumption of facts and wrong proposition of law and where unreasonable view on evidence had been taken revision was called for.

Knawal Nain's case PLD 1983 SC 53; Brig (R) Sher Afghan v. Mst. Sheeren Tahira and others 2010 SCMR 786; Naziran Begum v. Khurshid Begum 1999 SCMR 1171; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 and Madan Gopal's case PLD 1969 SC 617 rel.

Applicant in person

Shaikh Abdul Rehman for Respondent

Date of hearing: 26th September, 2011.

2012 Y L R 223

[Sindh]

Before Muhammad Athar Saeed, J

MUJAHID AHMED---Applicant

versus

KHALIL-UR-REHMAN

and 2 others---Respondents

Criminal Revision No.166 of 2009, decided on 15th September, 2011.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss.435 & 439---Illegal dispossession--- Complainant / applicant, had alleged that his flat had been illegally and unauthorizedly occupied by the respondents in his absence---Complaint was dismissed by the Trial Court---Validity---Claim of respondents was that they had acquired flat in question by entering into agreement of sale with the complainant---Substantial evidence had been provided to the effect that respondents were occupying the flat since 2004 legally on the basis of valid documents---Illegal occupation at the time of coming into force of Illegal Dispossession Act, 2005, having not been proved, onus on the complainant to prove that the flat had been illegally occupied by the respondents, had not been discharged---No allegation that the complainant was illegally dispossessed, either before coming into force or after coming into force of the Act---Case, in circumstances would not fall under the provisions of Illegal Dispossession Act, 2005---Impugned order having been passed on correct appreciation of law, no interference was called from the High Court.

Captain S.M. Aslam v The State and 2 others PLD 2006 Kar 221; Dr. Muhammad Safdar v. Edward Hency Louis PLD 2009 SC 404; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Rahim Tahir's case PLD 2007 SC 403 ref

Syed Samiullah Shah for Applicant

Fazal-ur-Rehman for Respondents

Muhammad Iqbal Awan, Assistant Prosecutor General.

2012 Y L R 227

[Sindh]

Before Salman Hamid, J

MUHAMMAD RAMZAN---Petitioner

versus

PROVINCE OF SINDH through Secretary Home Department Sindh Secretariat Karachi and 2 others---Respondents

Constitutional Petition No.S-2064 of 2011, decided on 15th July, 2011.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.173---Constitutional petition---Registration of criminal case---Petitioner had alleged that Police Personnel in uniform, fittingly equipped came in official vehicles; trespassed and cordoned the village and as a result some villagers were killed and many were injured and that he approached the Police Station concerned for lodging of F.I.R. to bring to book said brutalities, but he was refused by concerned S.H.O.---Intricate narration of events by the petitioner had shown nothing but fabrication, only to implicate the Police personnel---Postmortem reports had shown that two death had occurred even prior to the happening of alleged incident---Allegation that minors had been killed, was also belied from the postmortem report, which was prepared by independent and impartial doctors, who had no connection or relation with the entire incident---Petitioner, who, opted to file constitutional petition, had given up the right of remedy available to him at the other forums, which in the event of denial, would have put the petitioner in a better position to have invoked the jurisdiction of High Court---Unfolding of events had shown that the petitioner had come to the court with unclean hands---High Court, in circumstances, would refrain itself in exercising discretionary power as contemplated under Art.199 of the Constitution---Police Officials in the case while performing their officials duties got hold of certain accused and also faced counter-firing, with the result that some lives were lost---To cover up such incident, the petitioner wanted to have the F.I.R. lodged without any remorse for the offence committed by accused persons, whereby precious lives had been lost and official functions of the Police had been greatly hampered---Criminal record of the persons, who were the residents of the village concerned, showed that just to brow-beat and to make the officials redundant from discharging their official functions and to implicate them unnecessary petition had been filed without an iota of truth---Petition being mala fide, High Court while exercising discretionary powers, would not pass a mechanical order---Petition was dismissed.

Muhammad Bashir v. S.H.O., Okara Cantonment and others PLD 2007 SC 539; Mst. Anwar Begum v. S.H.O., P.S., Kalri West, Karachi and 12 others PLD 2005 SC 297; Mst. Bhetan v The State and 3 others PLD 2005 Kar 621; Nazir Ahmed v. the State and another 2010 MLD 995; Muhammad Nawaz v. DPO and others 2011 YLR 866; Imanullah v. Justice of Peace/ASJ Rajanpur and 3 others 2011 YLR 833 and Mumtaz Ali v. S.H.O. Naushahro Feroze 2011 PCr.LJ 268 distinguished.

Imtiaz Ahmed Cheema, S.H.O. v. S.H.O., P.S. Daharki, Ghotki and 2 others 2010 YLR 189; Altaf Hussain v. Government of Sindh, through Home Secretary and another PLD 1997 Kar. 600; Mazhar Hussain Naqvi v. Zafar H. Zaidi, VC, KU, PLD 2001 Kar. 269; Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951; Abdul Wahab v. Govt. of Sindh, through Secretary Home Department, Karachi and 2 others 2004 YLR 2599; Muhammad Ali v. S.H.O. P.S. Aziz Bhatti and others 2003 YLR 550 and Muhammad Mujahid Iqbal v. ASJ, Ranjanpur and 10 others 2009 YLR 330 ref.

Ghulam Shabir Shar and Yasir Arafat Sher for Petitioner.

A. R. Faruq Prizada for Respondents.

Imtiaz Ali Soomro, Asstt: A.G. for State along with Aitzaz Ahmed Goray, DPO Sukkur and Hafizullah S.H.O. Kandhra.

2012 Y L R 251

[Sindh]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

NIAMATULLAH KHAN---Appellant

versus

THE STATE through Anti-Narcotics Force, Sindh---Respondent

Criminal Appeal No.441 and Criminal Acquittal Appeal No.451 of 2010, decided on 3rd August, 2011.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Case of the prosecution was not free from contradiction---Major contradictions were noticed in the deposition of prosecution witnesses regarding the place of incident, and as to members of raiding party---No explanation was available with the prosecution as to why the case property was unsealed in presence of Special Public Prosecutor and not in the court---Case property having been produced in unsealed condition, same could not be safely relied upon---Marked distinction was found in the signature of accused available on the rent-a-car agreement and the one on his CNIC, which aspect had also remained unanswered---Contradiction in the deposition of the prosecution witnesses with regard to weighing of contraband items had created doubt about the weight of the items alleged to have been recovered from the accused---No previous record of conviction against accused persons was available---Accused had been mentioned as an international narcotics peddler and was arrested on the pointation of the spy who had identified him to be an international drug smuggler, but both the prosecution witnesses had admitted that they had no record of accused being involved in any charge prior to the present event---Labelling accused as an international drugs peddler without any cogent material or evidence, appeared to be uncalled for on the part of the prosecution---Samples were not drawn from each packet and receipt of Maalkhana was also not produced by the prosecution---To bring home the case of prosecution without any tinge of doubt, prosecution had to prove its case beyond all reasonable doubts---Whenever any doubt was created, accused was liable to be acquitted, not as a matter of grace, but as a matter of right---Such aspect appeared to be lacking in the case---No description about weight of narcotics was mentioned in the mashirnama---No contraband item was recovered from physical search of accused---Contra-dictions/irregularities in the case were enough to create doubt with regard to involvement of accused in the crime---By giving the benefit of doubt, accused was acquitted of the charge---Order passed by the Trial Court, was set aside.

Sarwar Jan v The State 2004 PCr.LJ 1224; Taj Wali and 6 others v The State PLD 2005 Kar 128; The State/Anti-Narcotics Force through Deputy Director v. Muhammad Siddiq 2010 YLR 2617; Ali Hassan v. The State PLD 2001 Kar 369; Syed Karim v. Anti-Narcotics Force PLD 2003 Kar 606; Nazeer Ahmed v The State PLD 2009 Kar 191; Adil Hussain v. The State 2003 YLR 1901; Abdul Majeed and another v The State 2004 MLD 568; Tariq Pervez v. The State 1995 SCMR 1345; Jamil Shah v The State 1997 SCMR 1494; Ashique Hussain Chandio v The State PLD 1992 Kar 5; Muhammad Aslam Javed v. Zahur Ahmed and others 2008 YLR 638; Abdul Latif v. Inspector-General Police and others 1999 PCr.LJ 1357; Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Siddique v. Province of Sindh through Home Secretary Karachi and 2 others PLD 1992 Kar. 358; Asma Khatoon v. Syed Shabbir Hussain Shah A.C.M. and F.C.M. Court-VI Karachi West and 2 others PLD 1996 Kar. 517; Zafar v The State 2008 SCMR 1254 Abdul Rasheed v The State 2009 SCMR 306; Munawar Hussain alias Bobi and 2 others v The State 1993 SCMR 785; Sarfaraz Gul v The State PLD 2004 SC 334; Muhammad Noor and others v The State 2010 SCMR 8; Meharban and 2 others v The State 2011 PCr.LJ 927 and Ghulam Hussain and 9 others v. The State 2011 PCr.LJ 72 ref

(b) Administration of Justice---

----If law provided a procedure for doing of a thing in a particular manner, same was to be done in that particular manner or not at all.

Tehsil Nazim, T.M.A. Okara v. Abbas Ali and others 2010 SCMR 1437 rel

(c) Criminal trial---

----Benefit of doubt---For giving benefit of doubt to an accused, there need not be a number of circumstantial evidences to prove the innocence of accused; even a single evidence appearing to a prudent mind creating doubt was more than enough to acquit an accused.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Possessing and trafficking of narcotics---Both prosecution witnesses had admitted that acquitted accused persons had no role to play in respect of alleged contraband items---Nothing objectionable was recovered from their physical possession---Neither their names were mentioned by the spy, nor the high officials of Anti-narcotic Force, had given any information in that regard to the raiding party about the involvement of those acquitted accused in drug trafficking---No criminal record of said accused persons was available with the authorities---No tangible and confidence inspiring evidence was available with the prosecution to convict accused persons---Trial Court was fully justified in acquitting said accused, in circumstances---In absence of any illegality in the order passed by the Trial Court, appeal against acquittal was dismissed, in circumstances.

Sibtain Mehmood for Appellant (in Criminal Appeal No.441 of 2010).

S. Ashfaq Hussain Rizvi, SPP ANF for the State (in Criminal Appeal No.441 of 2010).

S. Ashfaq Hussain Rizvi, SPP ANF for Appellant (in Criminal Acquittal Appeal No.451 of 2010).

Ilmuddin Khattak for Respondent (in Criminal Acquittal Appeal No.451 of 2010)

Dates of hearing: 25th and 31st May, 2011.

2012 Y L R 273

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

GUL MUHAMMAD alias GUL JAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-476 of 2011, decided on 20th October, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/ 384/ 395/ 397/ 337-H(2)/ 511/ 148/149---Qatl-e-amd, attempt to commit qatl-e-amd, extortion, dacoity, robbery, doing act rashly or negligently---Bail, refusal of---Specific role had been assigned to accused in the F.I.R. to the effect that he along with two other accused, directly fired upon the brother of the complainant with Kalashnikov---Twenty two empties of Kalashnikov were recovered from the place of incident---Two persons lost their lives and one was severely injured---Incriminating weapon was recovered from accused, which had shown that he along with other co-accused formed an unlawful assembly with their common object to commit murder of two persons---Investigating Officer after investigation had stated that there was no evidence against accused nominated in the counter F.I.R.---Said counter F.I.R. was an afterthought, which was filed by concealing the factum of murder of two persons and the injures sustained were suppressed---Reasonable grounds were available to believe that accused was guilty of offence---Bail application was dismissed, in circumstances.

Jaffar v. State 1980 SCMR 784; Syed Amanullah Shah v. State PLD 1996 SC 241 and Shuaib Mahmood v. Iftikharul Haq 1996 SCMR 1845 distinguished.

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

----Ss. 497 & 498---Bail, grant or refusal of---Principles---Grant or refusal of bail was normally a judicial exercise of discretion---Court was supposed to make tentative assessment of the material collected by the prosecution---Deeper appreciation of evidence was neither permissible nor warranted at bail stage---Court was not precluded from tentative pursuing the evidence of the eye-witnesses, the recovery and the medical reports to form a tentative opinion; as to whether accused was prima facie connected with the commission of offence of murder or not---Question of bail had to be determined in the light of prosecution version including the gravity of offence, conduct and role ascribed to accused, mode and manner of crime and the material available on record.

Asif Ali Soomro for Applicant.

Ameen Narejo for State.

Date of hearing: 20th October, 2011.

2012 Y L R 281

[Sindh]

Before Gulzar Ahmed and Nisar Muhammad Shaikh, JJ

MUHAMMAD NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.512 of 2010, decided on 23rd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/468/471/109---Cheating, forgery, using as genuine a forged document---Bail, refusal of---Allegations levelled against accused in the very complaint/F.I.R. for committing the offence of fraud etc., were corroborated by documentary evidence as well as statements of the prosecution witnesses under S.161, Cr.P.C.---Accused had caused substantial monetary loss to account holder of the Bank---Prima facie, case as alleged in the F.I.R., had been made out which connected accused with commission of alleged offence; and there appeared to be no exceptional circumstances to exercise discretion in favour of the accused---Reasonable grounds appeared to believe that accused was guilty of the scheduled offence under Banking Tribunals Ordinance, 1984, relating to the offences in respect of the Banks; and same could not be equated with the cases under P.P.C.---Accused had played a pivotal role in commission of alleged fraud etc.; and he was also the beneficiary of the alleged transaction involving huge amount---Case of accused was distinguishable from the case of co-accused and principle of consistency was not attracted in the matter of accused in circumstances---Bail appli-cation was dismissed, in circumstances.

2010 MLD 758; 2010 PCr.LJ 623 and 2010 YLR 1902 and 2010 YLR 563 distinguished.

Naimat Ali Randhawa for Applicant

S.Ashiq Raza, D.A.-G for Respondent

Date of hearing: 23rd June, 2010.

2012 Y L R 284

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

NANGAR KALHORO---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 6 others---Respondents

C.P. No.D-2547 of 2011, decided on 13th September, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of F.I.R.---Scope---Resort to provisions of Art.199 of the Constitution seeking quashing of the case was an extraordinary remedy, which could be invoked only in extreme circumstances---Provisions of Art. 199 could never be exploited as a substitution for the prescribed trial or to decide the question of guilt or innocence of an accused---If prima facie an offence had been committed, ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction.

Rubina Kausar v. District Police Officer 2011 MLD 1155; Haji Sardar Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192 and Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 rel.

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

----S. 561-A---Quashing of F.I.R.---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope and extent---Inherent jurisdiction of High Court under S.561-A, Cr.P.C., was not an alternative jurisdiction or the additional jurisdiction, but it was a jurisdiction prescribed in the interest of justice to redress grievance for which no other procedure was available or had been provided by the Cr.P.C. itself---Power given by S.561-A, Cr.P.C. could certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure---High Court should be extremely reluctant to interfere in a case where a competent court had, after examining the evidence adduced before it, come to a view that a prima facie case was disclosed and had framed charges; or summoned accused to appear, unless it could be said that the charge on its face or the evidence, even if believed, did not disclose any offence---None of the grounds raised in the memo of petition attracted or justified at that point of time to hold that from the allegations raised in the F.I.R., no offence was made out---If quashing of criminal case was sought on the ground that charge was groundless or there was no probability of accused being convicted of the offence which question could be decided without appraisal of evidence, or the material placed on record, or where question was whether facts, as alleged in the F.I.R. constituted an offence or not, the petitioner should insist upon to first move an application under S.249-A or 265-K, Cr.P.C. to the Trial Court before invoking such jurisdiction of High Court---If quashing of a criminal proceed-ings was sought on the grounds that proceedings were ex facie without jurisdiction and continuation of the same, would constitute an abuse of process of the court, court could entertain proceedings without first insisting upon the party to approach the Trial Court---Nothing was available on the record to show that F.I.Rs. were ex facie without jurisdiction and continuation of same would constitute abuse of process of law---Quashing of proceeding was declined by High Court.

Ali Gul Abbasi for Petitioner

Date of hearing: 13th September, 2011.

2012 Y L R 287

[Sindh]

Before Salman Hamid, J

SAIFAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1062 of 2010, decided on 3rd January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 114, 147, 148, 149 & 337-H(2)---Qatl-e-amd and causing hurt by rash or negligent act---Bail, grant of---Further inquiry---Name of accused was nowhere available in the F.I.R., assigning any role in commission of offence---Complainant as well as eye-witness had categorically stated that accused had been named, either by mistake or due to mala fide of the Police; and that he was not present at the time of incident on the relevant date---Both the witness and complainant had sworn affidavits, exonerating accused from the commission of offence for which F.I.R. was lodged---Swearing of the affidavits by two deponents, in circumstances, had shown that a case of further inquiry had been made out, more particularly, when the other 18 accused persons, were absconding; and the fact that name of accused did not appear anywhere in the body of the F.I.R. itself---Accused having made out case for bail in terms of subsection (2) of S.497, Cr.P.C. was admitted to bail, in circumstances.

Muhammad Nawaz alias Najja v The State 1991 SCMR 111 and Allah Bux v. Mazhar Hussain Shah and others 1979 SCMR 137 rel

Sanaullah and 3 others v The State 1983 SCMR 15 and Shah Zaman and 2 others v The State PLD 1994 SC 65 distinguished

Ali Gul Abbasi for Applicant

Zulfiqar Ali Jatoi D.P.-G for the State.

2012 Y L R 296

[Sindh]

Before Aqeel Ahmad Abbasi, J

Messrs KHAZAN TECH. (PVT.) LTD. through Chief Executive---Appellant

Versus

Syed FAYYAZ AHMED SHAH---Respondent

F.R.A. No.5 of 2011, decided on 17th October, 2011.

Cantonments Rent Restriction Act (XI of 1963)---

----Ss. 17 & 24---Ejectment of tenant---Ex parte order---Tenant assailed ex parte eviction order on the ground that he was not served properly---Validity---Rent Controller adopted legal procedure and provided complete opportunity to tenant, whereas tenant in spite of service of court notice and having complete knowledge of court proceedings, wilfully avoided to contest the matter on merits and had attempted to create a false ground of non-service, which was contrary to the record of the case---Such facts were not disclosed by the tenant in memo of appeal and had been verified by High Court itself by examining Record and Proceedings (R & P) of the case---Conduct of tenant was dubious and his assertion regarding non-service of court notices could not be accepted under the facts and circumstances of the case---High Court noted it with concern that tendency of tenants in rent proceedings to deliberately avoid service of court notices or to thwart court proceedings in order to gain time had become a common feature which was required to be addressed and must be curbed in appropriate cases---Eviction order passed by Rent Controller, in the present case did not suffer from any factual error or legal infirmity, hence did not require any interference by High Court---Appeal was dismissed, in circumstances.

Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514; Mst. Hafizan Begum v. District Judge, Attock and 2 others 1987 SCMR 1957; Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152 and Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067 ref.

Muhammad Sadiq Hidayatullah for Appellant

Muhammad Zahid Kabeer for Respondent

Dates of hearing: 30th May and 11th October, 2011.

2012 Y L R 309

[Sindh]

Before Sarmad Jalal Osmany and Ahmad Ali M. Shaikh, JJ

Hafiz ALI DUR---Applicant

Versus

QALANDAR BUX and 7 others---Respondents

Criminal Transfer Application No.12 of 2010, decided on 22nd March, 2010.

Criminal Procedure Code (V of 1898)---

----S.526---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 13(4) & 28(1) [as amended by Anti-Terrorism (Second Amendment) Ordinance (XIII of 1999)]---Penal Code (XLV of 1860), Ss.302, 324, 109, 148, 149 & 120-B---Qatl-e-amd, attempt to commit qatl-e-amd and criminal conspiracy---Transfer of case, application for---Jurisdiction of court---Complainant had sought transfer of case from the court of Judge Anti-Terrorism to any other court of competent jurisdiction---Words 'High Court' had been substituted with the words "Chief Justice of High Court" concerned under amended provision of S.28(1) of Anti-Terrorism Act, 1997---Language implied in the said section which had overriding effect being a special statute, no ambiguity existed therein in that regard---Only the "Chief Justice" had the sole power to decide the transfer of pending case in any Anti-Terrorism Court of concerned Province.

Fahim Riaz Siddiqui for Applicant

Syed Ameer Haider Naqvi for Respondents Nos.5, 6 and 7

M. Sarwar Khan, Addl. Advocate General, for Government of Sindh

Kazi Khalid Ali, learned Amicus Curiae.

2012 Y L R 314

[Sindh]

Before Ghulam Sarwar Korai, J

NISAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-35 of 2011, decided on 13th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Possessing narcotics---Bail, grant of---Accused was driver of the rickshaw wherein three persons were sitting on the back seat of the driver---Two of them escaped while one was apprehended---Alleged narcotics was recovered by the Police lying on the seat of the rickshaw which could be the property of accused who made their escape; or accused who was apprehended by the Police, but accused being rickshaw driver had no concern with the alleged recovered narcotics substance---Driver was unaware about narcotic substance lying in the bag which was kept by the passenger's seat in the rickshaw and it was yet to be determined by the Trial Court after recording the evidence, whether accused had the knowledge about the narcotics substance lying on the back seat of the rickshaw, with passengers or not---Punishment of alleged offence could be of life imprisonment or death sentence, but it was yet to be determined after completing proceedings---Co-accused had been granted bail and case of accused was on better footing than co-accused---Accused was also entitled for same concession on the principle of rule of consistency---Accused (Rikshaw Driver) having no concern with the alleged recovered property, he was granted bail, in circumstances.

Sakina Bibi v The State 2008 SCMR 1111; Pir Bux and another v The State 2007 MLD 1696; Fazal-e-Ayan v The State 2003 MLD 261; Saleem Hyder v The State 1999 MLD 1255 and Gul Hassan Dero v. The State 2000 PCr.LJ 657 ref

Fayaz Hussain Sabki for Applicant

M. Iqbal Kalhoro A.P.-G. For the State

2012 Y L R 320

[Sindh]

Before Muhammad Tasnim, J

WAQAS AHMED SIDDIQUI---Applicant

Versus

THE STATE through Cyber Circle FIA---Respondent

Criminal Bail Application No.927 of 2011, decided on 28th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Electronic Transactions Ordinance (LI of 2002), S.37---Causing damage to information system etc.---Bail, grant of---Further inquiry---Inordinate delay of three months in lodging of F.I.R., having not satisfactorily been explained, case of the prosecution was not free from doubt---Was yet to be determined after recording of evidence as to whether the provisions of S.37 of Electronic Transactions Ordinance, 2002, were attracted in the circumstances of the case or not---Entire documentary material was to be proved in evidence in accordance with law---Question as to whether any objectionable material was uploaded on the internet by accused or not and whether any email containing objectionable material, relating to complainant was sent to any one by accused was yet to be determined---Forensic report, no doubt had been submitted by an expert, but it was to be evaluated by the Trial Court in accordance with law---Whether provisions of S.37 of Electronic Transactions Ordinance, 2002 were attracted in the circumstances of the case, could not be decided while assessing the record tentatively---Trial Court was to decide said issue after recording of evidence---Deeper appreciation of the record could not be gone into, but a tentative assessment was to be made, first to find out as to whether accused was connected with the commission of offence or not---Issue involved in the present case, could not be decided without recording evidence, coupled with the fact that there was delay in lodging of F.I.R.---Case required further enquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Haji Wali Muhammad v The State 1969 SCMR 233; Munir Muhammad and 3 others v The State 1976 SCMR 145; Ijaz Akhtar v The State 1978 SCMR 64; Tariq Bashir and 5 others v The State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Subhan Khan v. The State 2002 SCMR 1797; Fazal Ellahi and another v The State 2004 SCMR 235; Saeed Ahmed v The State 1996 SCMR 1132; Muslim Khan v. The State 2000 PCr.LJ 814; Ghulam Muhammad v The State NLR 1983 Criminal 372; Zakhim Khan Masood v The State 1998 SCMR 1065; Muhammad Zafar Maniar v. Shahzad Ahmed and another 2011 MLD 602; Waqas Ahmed v. The State (Special Criminal Bail Application No.25 of 2011); Muhammad Anwar v. The State (Special Criminal Bail Application No.06 of 2011) ; Banaras V. The State 1978 SCMR 191; Khalida Bibi v. Nadeem Baig PLD 2009 SC 440; Sardar Muhammad and others v. Muhammad, Fazil and others 2002 SCMR 1990; Malik Aqeel v. The State 2011 SCMR 170; Shahzad Ahmed v The State 2010 SCMR 1221; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Zarin Khan v The State 1980 SCMR 305; Ameena Hassan alias Tina others v The State 1994 PCr.LJ 1495; Muhammad Akhtar v The State 1984 PCr.LJ 2340 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 ref.

Dr. Rana Muhammad Shamim for Applicant

Liaquat Ali Qasim for the Complainant

Pir Riaz Muhammad Shah, Standing Counsel along with Sub-Inspector Zakir Hussain of FIA, Cyber Crime Circle, Karachi for the State.

Dates of hearing: 21st and 22nd September, 2011.

2012 Y L R 353

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

Messrs AL-ARFAN ELECTRONICS TRADING L.L.C. through Authorized Person---Applicant

Versus

THE STATE and 7 others---Respondents

Criminal Revision Application No. 51 of 2009, heard on 26th September, 2011.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S.2(d)---Penal Code (XLV of 1860), Ss.420, 468, 471, 34 & 109---Cheating, forgery and using as genuine a forged document---Return of interim challan---Inspector FIA after investigating the matter, submitted interim challan before the (Special Court) (Offences in respect of Banks)---Subsequently, Investigating Officer filed application for return of challan on the ground that as after completion of the investigation, no banker was found involved in commission of any offence which would fall within the ambit of the affairs of business of the bank---Said application was accepted and the Special Court returned the challan observing that prima facie the matter related to import and export and that the court did not have jurisdiction to entertain the matter as same did not fall within the stipulation of Scheduled Offences as contemplated under provisions of the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Special Court, in circumstances directed the prosecution to submit challan before the court which had jurisdiction to entertain the case---Validity---Out of eight respondents only one was a Banking Company which was not a party to the proceedings---Rest of the respondents were private parties---Provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984, at best were applicable to one respondent and/or its employees and officers, if the case was brought against them for causing loss in connection with the Banking business---Allegations against the said respondent were general in nature and no specific name was available in the F.I.R. or in the challan against whom Scheduled Offence as contemplated under S.2(d) of the Ordinance could be raised---Consignment in question had been released and said respondent only had acted strictly as per the banking practice in vogue and facilitated all of them by providing its services as per laid down rules, practice and procedure---Special Court, in circumstances, had rightly returned the case papers by concluding that the offence as contained in F.I.R., was out-side the pale of S.2(d) of the Ordinance.

A. Habib Ahmed v. M. K. G. Scott Christian and 5 others PLD 1992 SC 353 and Muhammad Adnan Malik v. The State 2009 PCr.LJ 456 dis-tinguished.

Muhammad Hashim v. P.O. Special Banking Court (Offences in Banks) Sindh, Karachi 2006 PCr.LJ 1886 rel.

Nadeem Ahmed Farooqui for Applicant.

Shahid Ahmed Shaikh A.A.-G. for the State.

Khalique Ahmed for Respondents Nos. 2 and 3.

Badar Alam for Respondent No.5.

Muhammad Kazim for Respondent No.8.

Muhammad Qasim, Standing Counsel for FIA.

Date of hearing: 26th September, 2011.

2012 Y L R 360

[Sindh]

Before Nisar Muhammad Shaikh, J

AIJAZ ALI NOONARI---Applicant

Versus

STATION HOUSE OFFICER, P.S. HUSSAINABAD and another---Respondents

Criminal Miscellaneous Application No.S-452 of 2011, decided on 14th October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Applicant sought registration of his F.I.R. against accused under Ss.22-A & 22-B, Cr.P.C. before Ex-officio Justice of Peace, which application was dismissed---Applicant could not be prevented or deprived of from approaching the S.H.O. concerned for recording his statement in respect of the offence, which was alleged by him to have been committed by accused---Civil suit was though pending with regard to matter in question before civil court, but both civil and criminal remedies if were available, could simultaneously be availed by the aggrieved person---Applicant having levelled allegation which according to him constituted a criminal liability, he was allowed to approach the S.H.O. of concerned Police Station, who would record the statement of the applicant in verbatim and if a cognizable offence was made out from such statement, then F.I.R. of the applicant would be registered---If such F.I.R. was registered, no arrest would be effected, unless a tangible evidence was collected by the investigation agency against the nominated accused---Police Officer concerned could also take action against applicant in accordance with law, in case his F.I.R., if registered, was found to be false.

PLD 2007 SC 539; PLD 2005 Kar 621; 2002 MLD 1379; 2000 MLD 1687 and PLD 2010 Lah 60 rel

Amjad Ali Sehto for Applicant

Shahzado Saleem Nahiyoon Assistant Prosecutor-General Sindh for Respondents

Muhammad Shoaib Gul Jadoon for proposed accused.

2012 Y L R 372

[Sindh]

Before Salman Hamid, J

GHULAM AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-33 of 2011, heard on 4th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380 & 411---Theft in dwelling house, dishonestly receiving stolen property---Bail, refusal of---Accused was found in possession of the stolen government drugs and in use thereof in his clinic, which had shown blatant and remorseless attitude of accused---Person with such an attitude was likely to "repeat" the same offence, if released on bail---F.I.R. clearly mentioned that the complainant and others were looking for the stolen drugs and immediately upon receiving information and finding accused in possession and using of stolen drugs at his clinic, instantaneously lodged the F.I.R.---Explanation given for delay, was reasonable and plausible---Grounds prevailed with the courts below for enlarging co-accused on bail, were that his name was not mentioned in the F.I.R. and that his arrest was not made on the spot; as against that, the contents of the F.I.R. would show that accused was caught red-handed in his clinic dealing with the stolen drugs, belonging to the government---Bail application of accused was dismissed, in circumstances.

Tarique Bashir and 5 others v. The State PLD 1995 SC 34 distinguished

Ghulam Mehdi M Sangi for Applicant.

Miss Rubina Dhamrah, State Counsel.

Date of hearing: 4th February, 2011.

2012 Y L R 385

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

Mirza SHAKEEL BAIG---Petitioner

Versus

JAFFAR BAIG through Legal heirs and others---Respondents

Constitution Petition No.D-3079 and Miscellaneous Nos. 14105, 1606, 14107 of 2011, decided on 19th September, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of fact by the courts below---Such findings against a petitioner cannot be dislodged by High Court routinely unless the petitioner is able to show that the same were perverse or patently incorrect.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Specific Relief Act (I of 1877), Ss.12 & 42---Suit for specific performance of agreement and declaration---Concurrent findings of fact by two courts below---Execution of decree---Executing Court allowed application for execution of decree passed against petitioner and the order was maintained by Lower Appellate Court---Validity---Petitioner failed to bring any material to satisfy the court that orders passed by Trial Court suffered from any legal infirmity---Judgment and decree passed by Trial Court was challenged in appeal and after dismissal of appeal, the same was not challenged further thus judgment and decree attained finality---Lower Appellate Court did not find any ground for exercise its revisional jurisdiction and the same was dismissed being meritless---Petitioner failed to allege that courts below had exercised jurisdiction not vested in them by law or failed to exercise jurisdiction so vested or had acted in exercise of jurisdiction illegally or without material irregularity---High Court in exercise of Constitutional jurisdiction, declined to interfere in the orders passed by two courts below---Petition was dismissed in circumstances.

Muhammad Mushaffy for Petitioner

Date of hearing: 19th September, 2011.

2012 Y L R 397

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD TARIQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.979 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Juvenile Justice System Ordinance, 2000 (XXII of 2000), S.7---Robbery---Bail, grant of---Co-accused had been granted bail---Submission of accused was that he being 15/16 years of age, deserved leniency---Once ground was taken by accused that he was a child, it was the duty of the court to resort to proceedings under S.7 of the Juvenile Justice System Ordinance, 2000 for determining his age---Such step had not been taken by the court below---Accused was admitted to bail, in circumstances.

Moulvi Iqbal Haider for Applicant

Abrar Ali Khichi A.P.G.

2012 Y L R 413

[Sindh]

Before Shahid Anwar Bajwa, J

SAIFUL HAQ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1116 of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 23---Possessing and trafficking of narcotics---Bail, refusal of---Bus in question after off loading passengers was present and two persons were in the bus, one was sitting at the driving seat and the other by the side of the driver---Accused was sitting next to the driving seat---Search of the bus led to a secret cavity from which four bundles were recovered; each bundle was found to contain 100 rods of charas, each weighing 1100 grams and in all 44 Kgs of charas was recovered---When the Police party raided, the bus, passengers had already been off loaded and only two persons were sitting in the bus, one driver and the other sitting next to the driver---All the passengers having left the bus, the question would be as to why the accused was still sitting in the bus---Prima facie, there was material to connect the accused to the offence alleged against him---Bail was refused, in circumstances.

Gul Badshah v. The State 2011 SCMR 984; Muhammad Ullah v. The State 2009 SCMR 954 and Umar Daraz and another v. The State, 2011 PCr.LJ 559 ref.

Muhammad Nasim for Applicant.

Ms. Seema Zaidi, A.P.-G. for the State.

Date of hearing: 31st October, 2011.

2012 Y L R 423

[Sindh]

Before Muhammad Tasnim, J

NAZEER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-627 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Names of the Mashirs did not appear in the F.I.R.---As per prosecution case four pieces of charras were allegedly recovered from accused while prosecution witnesses stated that sample was not drawn from each of the piece of charras allegedly recovered from the accused---Presence of any prosecution witness was not shown in the F.I.R.---Case, in circumstances, was not free from doubt and false implication of accused, could not be ruled out in the circumstances of the case---Case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Nazeer Ahmed Bhatti for Applicant.

Shahzada Saleem Nahyoon, A.P.-G. for the State.

Date of hearing: 4th November, 2011.

2012 Y L R 426

[Sindh]

Before Syed Hasan Azhar Rizvi, J

K. SWAMI WILSON---Appellant

Versus

BABOO and 6 others---Respondents

Criminal Acquittal Appeal No.54 of 2011, decided on 24th November, 2011.

Penal Code (XLV of 1860)---

----Ss. 337-F(v)/ 506/ 147/ 148---Criminal Procedure Code (V of 1898), S.417(2-A)---Causing Hashimah and criminal intimidation---Appeal against acquittal---Appreciation of evidence---Nothing had been mentioned in the F.I.R. as to which of accused had given blow/injuries to the victim---Even the victim had not attributed the injuries to any of accused---Material contradictions were noticed in the ocular testimony as well as medical evidence, which had made the case of the prosecution doubtful---Ample opportunity was provided to the counsel for the appellant/complainant to point out any illegality in the impugned judgment, but he failed to point out any single illegality in the judgment of the Judicial Magistrate---Contention of counsel for the appellant that appellant was not heard, was baseless---Judicial Magistrate had discussed the evidence of the prosecution witnesses in detail and had fully considered the material brought on record; his findings being not based on presumption and surmises, accused were rightly acquitted, in circumstances.

Syed Muhammad Akber for Appellant.

Khadim Hussain learned D.P.-G.

Date of hearing: 24th November, 2011.

2012 Y L R 435

[Sindh]

Before Nisar Muhammad Shaikh, J

Malik PAHAR KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-517 of 2011 and M. As. Nos. 5966 and 5871 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 341 & 427---Attempt to commit qatl-e-amd, wrongful restraint, and mischief---Bail, grant of---Pre-arrest bail was granted to accused persons, but they misused the concession of bail as they remained absent from the Trial Court---When accused failed to get the relief of pre-arrest bail thereafter from the Trial Court as well as High Court, they surrendered before the Trial Court and since then they were in jail---Accused remained in jail for a considerable amount of time---Accused, who previously had misused the concession of bail, became entitled to be given further chance and concession---Accused were granted bail, in circumstances.

Aijaz Ahmed Shaikh for Applicants.

Riazat Ali Sahar for the Complainant.

Muhammad Iqbal Kalhoro, A.P.-G. for the State.

2012 Y L R 438

[Sindh]

Before Ahmed Ali M. Shaikh, J

BILAL---Petitioner

Versus

VITH A.D.J. (South), Karachi and another---Respondents

Constitution Petition No.S-324 and C.M.A. No. 1456 of 2011, decided on 8th July, 2011.

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

----Ss.16(1) & (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Specific performance of agreement to sell---Denial of relationship of landlord and tenant---Striking off defence---Tentative rent, non-deposit of---Tenant denied relationship of landlord and tenant between the parties, therefore, he did not deposit tentative rent---Rent Controller passed eviction order against tenant, which order was maintained by Lower Appellate Court---Validity---Order passed by Rent Controller though was restored by Supreme Court but tenant did not comply with tentative rent order, therefore, Rent Controller was justified to pass order under section 16 (2) of Sindh Rented Premises Ordinance, 1979---Tenant, from initial stage of proceedings, denied relationship of landlord and tenant between the parties and took a plea that property, which was subject matter of proceedings, had been purchased by his brother from landlord and in such respect civil suit for specific performance had been filed---Held, in case of denial of relationship of landlord and tenant, the tenant had to vacate the premises and file a suit for specific performance of contract whereafter he would be given easy access to the premises in case he prevailed---Order passed under section 16(1) of Sindh Rented Premises Ordinance, 1979, by Rent Controller was restored by Supreme Court and tenant was bound to comply with the order but he did not deposit a single penny in respect of rent arrears or future rent---High Court declined to interfere in eviction order passed by two courts below--Petition was dismissed in circumstances.

Abdul Hameed v. Muhammad Jawed 1999 MLD 3031; Muhammad Amin v. Zahida Begum 1985 CLC 3018; Hassan Mohiuddin v. Muhammad Hanif 1985 CLC 1606 and Miskina Jan v. Rehmat Din 1992 SCMR 1149 distinguished.

Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320 rel.

Abdul Wahab Baloch for Petitioner.

Ghulam Ali Khokhar and Muhammad Younus Memon for Respondent No.2.

Date of hearing: 6th July, 2011.

2012 Y L R 449

[Sindh]

Before Ahmed Ali M. Shaikh and Nisar Muhammad Shaikh, JJ

FAYAZ AHMED and another---Petitioners

Versus

PROVINCE OF SINDH through Senior Member Board of Revenue and 6 others---Respondents

Constitution Petition No.D-704 of 2011, and M.A. No.3110 of 2011, decided on 6th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Genuineness of document---Determi-nation---Factual controversy---Petitioners sought declaration of High Court with regard to genuineness of gift-deed executed in favour of respondents by their predecessor-in-interest---Validity---Matter was that of factual controversy with regard to genuineness or otherwise of the gift-deed and such controversy could not be resolved in proceedings under Art.199 of the Constitution---Determination of genuineness or otherwise of document required evidence for which proper forum was civil court---Petition was dismissed, in circumstances.

M. Arshad S. Pathan for Petitioners.

Riazat Ali Sahar for private Respondents.

Mukhtar Ahmed Khanzada for the State.

2012 Y L R 453

[Sindh]

Before Shahid Anwar Bajwa and Muhamamd Ali Mazhar, JJ

MUMTAZ ALI JAHANGIR and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary, (Revenue), Karachi and 5 others---Respondents

Constitutional Petition No.1273 of 2010, and C.M.As. Nos. 264 and 265 of 2011, decided on 19th October, 2011.

Sindh Public Property (Removal of Encroachment) Act (V of 1975)---

----S. 3---Constitution of Pakistan, Art.199--- Constitutional petition---Dispossession from property---Petitioners had claimed that they were legal allottees of house in dispute, but they had been forcibly dispossessed without issuing them any notice---Authorities had alleged that allotment order produced by the petitioners along with memo of petition was forged and fabricated document, it was evident from various documents filed by the authorities along with their comments by way of separate statement, that the petitioners were under unlawful possession and that after applying proper procedure envisaged under the Sindh Public Property (Removal of Encroachment) Act, 1975, action was taken against the petitioners with due process of law---Initially, constitutional petition was moved by the petitioner who had no legal character or locus standi to challenge the action of the authorities on sole ground that house in question was never allotted to the petitioner and it was sine qua non for invoking the jurisdiction of High Court through constitutional petition that the petitioner must be aggrieved person and must have locus standi for availing such jurisdiction---Serious disputed questions of facts were involved in the case and the claim of the petitioners was that allotment order was genuine---Such controversy could not be decided in the constitutional jurisdiction of High Court, in particular where equally efficacious, adequate and alternate remedies were straightforwardly accessible to the petitioners; such as to file complaint under Illegal Dispossession Act, 2005, or file a civil suit for possession, if they were dispossessed from the property in question without due process of law---Authorities having come forward with an unequivocal plea that they had removed the encroachment from government property with due process of law, the petitioners had another option and leisure to seek appropriate remedy provided under Sindh Public Property (Removal of Encroachment) Act, 1975 for protection of their alleged right and entitlement.

Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52; Province of Balochistan v. Murree Brewery Company Ltd., PLD 2007 SC 386;

N.-W.F.P. Public Service Commission v. Muhammad Arif 2011 SCMR 848; Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 and Anjuman Fruit Arhtian v. Deputy Commissioner, Faisalabad 2011 SCMR 279 rel.

Sarfraz Ali Akhund for Petitioners.

Abdul Qadir Shaikh for Respondents Nos. 2, 3 and 4.

Imtiaz Ali Soomro, Assistant Advocate General for Respondents Nos. 1, 5 and 6.

Date of hearing: 14th September, 2011.

2012 Y L R 466

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Messrs ANWAR AND COMPANY through Manager/Attorney---Petitioner

Versus

SINDH INDUSTRIAL TRADING ESTATES LTD. through Managing Director and 4 others---Respondents

Constitutional Petition No.D-109 of 2005, heard on 21st September, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Lease of plot for erection of a building of a factory---Withdrawal of lease---Plot in question was leased out vide registered deed for building a factory within specified period and according to the specification---Earlier said allotment/lease was cancelled because the petitioner had not made use of the plot for the purpose for which petitioner had got its lease---Allotment was restored, subject to the condition that petitioner would start construction within four months---Said condition having not been fulfilled by the petitioner, lease was withdrawn and Estate Engineer was directed to resume the possession of the vacant plot immediately---Petitioner contended that impugned order was coram non judice as the same had been passed by the Secretary; without resolution of the Board of Directors and that since agreement in question was signed by the Managing Director, cancellation/ withdrawal order could only be issued by the Managing Director---Validity---Minutes of the meeting, had clearly indicated that the Board had delegated the authority for restoration and cancellation of plots to the Managing Director and in the present case, Managing Director had approved the cancellation---Contention that, letter should have been signed by the Managing Director, had been issued with the signature of the Secretary, was also repelled, because it was well-settled law that if a functionary, who was conferred with the power to approve any act, would approve it then any subordinate, could communicate the order in terms of the approval---Letter in question specifically stated that it was the Managing Director who had approved it---Constitutional petition was dismissed.

Karachi Development authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328; Brigadier (R) Rashid Ahmad v. Dafedar Rashid Ahmad and others 2008 SCMR 362 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 ref.

Sajid Mehmood Shaikh for Petitioner.

Amir Muhammad Shaikh for Respondent No.1.

Nizamuddin Baloch for Respondent No.5.

Imtiaz Ali Soomro, A.A.-G. for Respondents A.A.-G.

Date of hearing: 21st September, 2011.

2012 Y L R 477

[Sindh]

Before Muhammad Ali Mazhar, J

ZAMEER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-675 of 2011, decided on 28th October, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(2), 147 & 148---Qatl-e-amd, causing hurt by rash or negligent act---Bail, grant of---Accused who was behind the bars for the last about three years, had applied for bail on statutory ground of delay---Trial Court, after framing of the charge, had been able to record only the examination-in-chief of the complainant, but failed to ensure the regular attendance/production of accused and attendance of prosecution witnesses---Delay in trial was caused due to non-production of accused by Jail Authorities, but the delay of all 24 dates had been attributed to accused who had no control or say over the Jail Authorities to produce him or not to produce him in court---Jail Authorities were responsible to produce under-trial prisoner in court without any failure on their part and prosecution was to ensure the presence of prosecution witnesses so that trial could be concluded as soon as possible---If prosecution or Jail Authorities would fail to perform their lawful duties in accordance with law, the court could not sit idol or as silent spectator, but it was the responsibility of the court to ensure that prosecution and Jail Authorities were performing their lawful duties properly, which was necessary not only for dispensation of justice, but also required for expeditious criminal administration of justice---Expeditious and fair trial was fundamental right of accused---Intention of law was that criminal case must be disposed of without unnecessary delay---Court not to feel so powerless in matter or securing attendance of witnesses---Court, in case of disobedience, was to use the powers vested in it---Accused was not previously convicted offender for an offence punishable with death or life imprisonment---Even if the adjournment sought by accused was excluded, his period behind the bars was more than two years, which had entitled him to claim the bail on the ground of statutory delay---Accused was released on bail, in circumstances.

Abdullah v. The State 1985 SCMR 1509; Muhammad Aslam v. The State 1999 SCMR 2147; Behram v. The State 2003 PCr.LJ 73; Aarab alias Katoo v. The State 2005 PCr.LJ 555; Wazir v. The State PLD 1986 Kar. 646; Abdul Hameed v. The State 2003 MLD 19; AIR 1941 Sind 186; AIR 1942 Calcutta 219; 2000 SCMR 107 and PLD 1984 SC 428 rel.

Abid Sohail v. The State 2006 PCr.LJ 864; Iftikhar Hussain v. The State PLD 2011 Lah 110 and Muhammad Nawaz v. The State 2003 MLD 79 distinguished.

(b) Criminal trial---

----Duty of Investigating Agency---Investigating Agency was to bring the truth on surface and prove the case against accused beyond any reasonable doubt---All facts and aspects of prosecution case had to be highlighted and proved by prosecution in order to bring guilt home to accused.

Maqbool Ahmed Awan for Applicant.

Ubedullah Ghoto for the Complainant.

Sardar Ali Shah, A.P.-G. for the State.

Date of hearing: 6th October, 2011.

2012 Y L R 486

[Sindh]

Before Muhammad Ali Mazhar, J

ABDUL RASHEED and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-781 of 2011, decided on 21st October, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 114, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rash and negligent act---Bail, grant of---Further inquiry---Names of both accused were not mentioned in the F.I.R. and they were subsequently implicated in the case by way of statement recorded under S.161, Cr.P.C.---Delay of at least 10 hours in lodging the F.I.R., possibility could not be ruled out that names of accused were implicated after due consideration and deliberation---All accused were identified at the place of occurrence, except those two who were named subsequently, while it was a fact that complainant and accused party were already familiar to each other and residing in the same village---Nothing was recovered from accused---Bail could not be withheld as punishment and even for the purpose of bail, law was not to be stretched in favour of prosecution---Case of accused falling within the ambit of further inquiry in terms of S.497(2), Cr.P.C., accused were granted bail, in circumstances.

Imran Sikandar v. The State 2007 PCr.LJ 1497 and Muhammad Iqbal v. The State 2006 YLR 2382 ref.

Abid Ali v. The State 2011 SCMR 161 and Tahir Abbas v. The State 2003 SCMR 426 rel.

Mudassar Altaf v. The State 2010 SCMR 861 distinguished.

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

----S. 497(2)---Bail, grant of---Further inquiry---Principles---Main consideration for grant of bail under subsection (2) of S.497, Cr.P.C. was that if the court on the basis of tentative assessment of evidence would form an opinion that prima facie reasonable grounds existed to believe that accused had not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of S.497, Cr.P.C.---Actual test for grant or refusal of bail would rest in availability of reasonable grounds, which meant the grounds which would appeal to a reasonable and prudent mind---Expression reasonable grounds denoted a stronger meaning than a mere bald allegation of suspicion.

Ghulam Shabeer Shar for Applicants.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

Date of hearing: 17th October, 2011.

2012 Y L R 492

[Sindh]

Before Muhammad Ali Mazhar, J

MITHO alias MUHAMMAD MITHAL---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3626 of 2011 in Criminal Appeal No.S-88 of 2011, decided on 22nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1)---Suspension of sentence---Power of Appellate Court under S.426(1), Cr.P.C., was not limited and court, pending disposal of appeal, could suspend the sentence of a convict in an appropriate case on its discretion for good and sufficient reasons---Such power of suspension of sentence and grant of bail, was not wider than the one under S.497, Cr.P.C.

Nazeer Ali alias Nazeer v. State 2011 YLR 403 and Shafquat Mehmood v. State 2007 PCr.LJ 1035 ref.

Allah Ditta Khan v. State PLD 2002 SC 845 rel.

Maqbool Ahmed Awan for Applicant.

Zulfiqar Ali Jatoi, D.P.-G. for the State.

Date of hearing: 22nd August, 2011.

2012 Y L R 497

[Sindh]

Before Imam Bux Baloch, J

IZHAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-465 of 2011, decided on 12th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/334/324---Robbery, atlaf-i-udw, attempt to commit qatl-e-amd---Bail, grant of--- Further inquiry--- Complainant approached Police Station on the very same day of the incident, but he did not lodge F.I.R. and only obtained letter for medical treatment, which had created doubt in the case of prosecution---Presumption would be that complainant had not identified the culprits at the time of alleged incident---Police during course of investigation had not recovered the robbed motorcycle, or crime weapons carried by culprits during commission of offence---Case of accused appearing to be of further enquiry, they were admitted to bail, in circumstances.

Ali Anwar Saahar for Applicants.

Ameer Ahmed Narejo, State counsel.

2012 Y L R 503

[Sindh]

Before Muhammad Athar Saeed, J

STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law)---Appellant

Versus

ALLAH BUX and another---Respondents

Criminal Acquittal Appeal No.D-42 of 2007, decided on 27th September, 2011.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Possessing and trafficking narcotics---Appeal against acquittal---Prosecution had not been able to prove its case---Even if a solitary doubt was created as to the guilt of accused, then he could not be convicted---Special Judge had rightly observed that prosecution case was full of doubts---Order of acquittal of accused, passed by Special Judge, was unexceptionable and no interference was called for by High Court.

PLD 2000 SC 91(sic); 2007 PCr.LJ 1520 ; Nazeer Sher v. The State PLD 2009 Kar. 191 and Zahida Saleem v. M. Naseem PLD 2006 SC 427 ref.

Zulfiqar Ali Sangi the Special Public Prosecutor ANF for Appellant.

Yaseen Khan for Respondents.

Haji Shafi Muhammad Standing Counsel.

2012 Y L R 509

[Sindh]

Before Muhammad Athar Saeed, J

TALIB and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-865 and M.A. No.2844 of 2009, decided on 3rd December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry--- Number of contradictions were found in the F.I.R. and the statements of witnesses and further inquiry was needed to connect accused persons with the crime in question---Accused were admitted to bail, in circumstances.

2007 PCr.LJ 987; 1980 SCMR 784; 2008 MLD 1740; 2001 PCr.LJ 110; PLD 2009 Kar. 265 and 1996 SCMR 555 ref.

Zulfiqar Ali Sangi for Applicants.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

2012 Y L R 515

[Sindh]

Before Ghulam Sarwar Korai, J

MUHAMMAD MITHAL alias IMAM BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-433 of 2011, decided on 22nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(2) & 34---Qatl-e-amd and causing hurt by rash and negligent act---Bail, grant of---Further inquiry---Neither accused was named nor his description was given in the F.I.R.---Complainant and accused were caste fellows---Name of accused was disclosed by two witnesses in their statements under S.161, Cr.P.C. after about three days of registration of F.I.R.---No identification parade was held---No role was attributed even to the unknown accused---Case of accused being of further inquiry, his bail application was allowed, in circumstances.

Ali Anwar Sahar for Applicant.

Miss Rubina Dhamrah, State Counsel.

2012 Y L R 530

[Sindh]

Before Shahid Anwar Bajwa, J

KHALIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1141 of 2011, decided on 2nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.379/34---Theft---Bail, grant of---Further inquiry---Complainant had alleged that he had been robbed of wallet, Rs.50,000, two cheques and CNIC---Said things had not been recovered from the accused---Amount of Rs.23,000 was recovered from the accused, but there was no evidence to the effect that recovered amount was the amount that had been stolen from the complainant and it seemed highly doubtful that a person after robbing alighting from the train would just stand at a short distance and wait for someone to arrest him---Case against accused being of further inquiry, he was admitted to bail, in circumstances.

Ansari Abdul Lateef for Applicant.

Pir Riaz M. Shah, Standing Counsel.

2012 Y L R 539

[Sindh]

Before Aqeel Ahmed Abbasi, J

MUHAMMAD HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-160 of 2010, decided on 9th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possessing of narcotics---Bail, grant of---Further inquiry---Accused had been able to make out a case for grant of bail as prosecution story on the face of it could not be held as free from doubt and it required further inquiry---Accused was admitted to bail, in circumstances.

Younis v. State 2010 MLD 8 ref.

S. Waseem Shah for Applicant.

Syed Meeral Shah, Deputy Prosecutor General, Sindh.

2012 Y L R 548

[Sindh]

Before Ghulam Sarwar Korai, J

MUHAMMAD ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.257 of 2011, decided on 14th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-H(2)/452/504/147/148/149---Attempt to commit qatl-e-amd, hurt by rash or negligent act, house-trespassing and intentional insult---Bail, grant of---Further inquiry---Complainant had not alleged any role against accused persons who allegedly were armed with pistols---One accused had allegedly fired upon the complainant which hit him on his head, but that version was contradictory---Entire case of the prosecution was of further inquiry---Challan had been filed and accused were no more required for further investigation while they were behind the bars since their arrest viz 21-1-2011---Bail could not be withheld as punishment---Allegations whatever they mights be were to be proved after recording the evidence of material witnesses---Accused persons were entitled to be released on bail, in circumstances.

Khait Kumar Khatri for Applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh for the State.

2012 Y L R 553

[Sindh]

Before Syed Zakir Hussain, J

MUHAMMAD SARFRAZ---Applicant

Versus

THE STATE---Respondent

Bail Application No.644 of 2010, decided on 24th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotics---Bail, grant of---Further inquiry---Charas weighing five Kgs. in shape of rods, was allegedly recovered from the possession of accused---Memo. was prepared as to the arrest of accused and recovery of the recovered material on the spot before the official witnesses---From secured narcotic substance consisting of five hundred pieces, a sample of one gram each was parcelled and sealed separately for chemical examination---Case appeared to be one of further inquiry on the ground that no public witness was associated for arrest and recovery etc. and to the memo. in question---Said memo. was silent as to the number of rods and pieces secured as sample---Expert report had shown that one envelope parcel was received as stuffed with multiple pieces of charas weighing five hundred grams as net weight---Thirty grams out of the said five hundred grams appeared to have been consumed in the analysis whereas the remaining was kept for being dispatched to or collected from the office of Chemical Examiner---No record was available as to whether the Police had collected the same or not; or whether such material with its wrapper was in existence or not---F.I.R. and the memo. in question both carried reference of departure entry, but not that of arrival entry---Accused was admitted to bail, in circumstances.

2007 MLD 1092; 2009 PCr.LJ 1340 and 2010 SCMR 1160 ref.

Zakir Hussain Bughio for Applicant.

Imtiaz Ali Jalbani, A.P.-G. for Respondent.

2012 Y L R 560

[Sindh]

Before Muhammad Tasnim, J

GHULAM ABBAS---Applicant

Versus

THE STATE---Respondent

M.A. No.6691 of 2010 in M.A. No.7794 of 2010 in M.A. No.7794 of 2011, decided on 26th August, 2011.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.392--- Robbery--- Suspension of sen-tence---Sentence of five years awarded to accused had been sought to be suspended during pendency of appeal on the ground that appeal had been filed on 3-12-2010 and ever since, not a single date/ adjournment had been taken by accused and that there was no possibility of early hearing of appeal---State Counsel had no objection to grant of application for suspension of sentence---By consent, application for suspension of sentence was granted---Accused was enlarged on bail, in circumstances.

Liaquat Ali Qureshi for Applicant.

Ms. Seema Zaidi, A.P.-G. for the State.

2012 Y L R 565

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

AFTAB AHMED LAKHO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.842 of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409, 420, 468, 471, 477-A/34 & 109---Criminal breach of trust by public servant, cheating, forgery, using as genuine a forged document and falsification of accounts---Bail, grant of---Further inquiry---Accused was not shown to have the responsibility and duty as joint custodian to deposit the amount in question with the Bank---Certificate of clearing pay orders, prima facie, in itself did not show that accused had misappropriated the amount of pay orders---Except the allegation that accused, being joint custodian, was responsible for the deposit of the amount in the link branch, no other incriminating evidence was available against him---Nothing had been recovered from accused and he was not the beneficiary of the embezzled amount---Said amount was recovered from the other co-accused and that too on their own pointation---All the documents which had been collected, could not possibly be tampered by accused and prima facie said documents did not connect accused with the offence---Whatever material had been collected by the prosecution, did not connect the accused to availing the benefit of the embezzled money---Grounds for resistance of the bail taken by the counsel for the complainant and the Standing Counsel, by itself raised the point of further inquiry---Accused was enlarged on bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Wasi Ahmed v. The State 2010 YLR 2299; Inam-ul-Haq v. The State 2000 YLR 289; S.E. Manoha v. The State 1987 PCr.LJ 459 and Saeed Ahmed v. The State 1995 SCMR 170 rel.

S. Amir Hyder Naqvi and M. Naeem Memon for Applicant.

M. Sadiq, Standing Counsel for the State along with Mr. Zainul Hassan Rizvi, Inspector FIA and I/O of the case.

Khaleeque Ahmed for the Complainant.

Date of hearing: 21st September, 2011.

2012 Y L R 575

[Sindh]

Before Imam Bux Baloch and Ahmed Ali M. Shaikh, JJ

NAVEED AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-25 of 2009, decided on 22nd November, 2011.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---One of the prosecution witnesses had stated that two Kalashnikovs and 25 maunds of charas were recovered from the accused persons who were wearing army uniforms, travelling in wagon bearing Army and Rangers number---Other prosecution witness had corroborated the evidence of first prosecution witness---Recoveries effected from the possession of accused persons, were corroborative evidence of the complainant and prosecution witnesses---No major discrepancy or contradictions were found in the prosecution evidence---Chemical Examiner's report was in positive---Police officials, could not foist huge quantity of charas weighing 25 maunds and two Kalashnikovs---Objection raised by counsel for accused persons that complainant was Investigating Officer and witness of the occurrence and recovery, had rendered the prosecution case doubtful, had no force---Section 25 of Control of Narcotic Substances Act, 1997, had specifically excluded the provisions S.103, Cr.P.C.---Non-association of members of the public in the recovery proceedings, was neither a requirement of law nor an absolute rule---Recovery and arrest of accused persons, was effected in odd hours of the night from the National Highway and no public witness could be available at such time---Where the defence had not produced any evidence to establish animosity against the prosecution witnesses, evidence of such Police Officials could not be brushed aside merely on the ground that they belonged to the Police Department---Lengthy cross-examination was conducted during the trial, but nothing was found favourable to the accused persons---Contention of counsel for accused that the property, which was sent for chemical examination as shown in the memo of arrest and recovery was different from the property received by Chemical Examiner, on examination of Mushirnama of arrest and recovery and report of Chemical Examiner, could not be accepted---Twenty one Kgs. of charas, which was taken from the recovered charas from the possession of accused persons, was sent to the Chemical Examiner--- Chemical Examiner's report also revealed that 21 Kgs. of charas was received by him and the report was positive---Once the prosecution had prima facie established its case, then under S.29 of Control of Narcotic Substances Act, 1997, the burden would shift on the accused to prove contrary to the plea of the prosecution---Prosecution had established that the persons who were found in possession of the narcotics had committed the offence while the defence had failed to discharge its burden in terms of S.29(d) of Control of Narcotic Substances Act, 1997---Appeal was dismissed.

Ghulam Siddique v. The State 2005 YLR 605; Messrs Shams and Brothers v. Government of Pakistan and others 2007 YLR 160; Bilal v. The State 2007 YLR 3096; Zareef Khan v. The State 2005 MLD 501 and Eran Gul and others v. The State 2009 YLR 646 disitngiushed

Zafar v. The State 2008 SCMR 1254; Babar Ali alias Sajoo v. The State 2007 MLD 169; Kashif Amir v The State PLD 2010 SC 2053; Ismaeel v. The State 2010 SCMR 27; Muhammad Arshad v. The State 2007 SCMR 1378; Mst. Taj Bibi v. The State 2007 SCMR 1591 and Ikram Hussain v. The State 2005 SCMR 1487 rel.

Abdul Baqi Jan Kakar for Appellants

Zulfiqar Ali Jatoi, Deputy Prosecutor-General Sindh for Respondent.

Date of hearing: 16th November, 2011.

2012 Y L R 590

[Sindh]

Before Shahid Anwar Bajwa, J

RAHEEM DAD and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.615 of 2011, decided on 23rd November, 2011.

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

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Accused according to their medical certificates and school certificates undoubtedly were juvenile around 15 years of age---Objective of every law in a civilized society is welfare of the society and Juvenile Justice System Ordinance, 2000, is no exception to that---Section 10(7) of the Juvenile Justice System Ordinance, 2000, therefore, could not be read as to have negated the provision contained in the first proviso to S.497, Cr.P.C., rather both compliment each other and cater to two different situations---Prosecution version was that the three accused were present in the canal with the deceased and they were seen lying on him---Whether said lying upon was an impish playfulness or a deliberate act of murder was not clear from anything stated in the F.I.R.---Accused were young boys and were students and they could be finally punished by the court if proved guilty of the crime, but if they were found innocent then valuable education loss to them could not be recouped or recompensed---Accused were admitted to bail, in circumstances.

Usman Ali v. The State 1996 PCr.LJ 166; Asghar Ali v. The State 2002 MLD 1566; Mst. Zafrana v. The State 1997 PCr.LJ 163; Afsar Zamin v. The State PLD 2002 Kar. 18; Afsar Zamin v. The State PLD 2002 Kar. 18; Siraj Din v. Safhir-ud-Din alias Goga and another 1970 SCMR 30; Altaf Hussain v. Abdul Muttal and another 1975 SCMR 139 and Muhammad Anwar v. The State 1983 SCMR 1001 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----Preamble---Object---Juvenile Justice System Ordinance, 2000, is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society---Ordinance, in a way, safeguards the human rights of a section of society who deserve concession because of their tender age---Juvenile Justice System Ordinance, 2000, therefore, is to be construed liberally in order to achieve the said object.

Afsar Zamin v. The State PLD 2002 Kar. 18 ref.

A.R. Faruq Pirzada for Applicants.

Qurban Ali Malano for the Complainant.

Shyam Lal Ladhani, A.P.-G.

Date of hearing: 17th October, 2011.

2012 Y L R 622

[Sindh]

Before Shahid Anwar Bajwa, J

SIKANDAR and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1208 of 2011, decided on 10th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Accused had allegedly come on a motorcycle and a tractor to commit robbery---No number or any other description of the motorcycle and the tractor had been given in the F.I.R.---Said motorcycle and the tractor had not yet been recovered from the accused, nor the prosecution had proved the ownership of the same---No trolley having been attached with the tractor, it was difficult to visualize that forty bags of fertilizer and zinc pesticides could be loaded on the back of the tractor---Case against accused appeared to be doubtful and of further inquiry---Accused were behind the bars for about two months---Bail was allowed to accused, in circumstances.

Abdul Hafeez Anwar for Applicant.

Ms. Rahat Ehsan, A.P.-G. for the State.

Date of hearing: 10th November, 2011.

2012 Y L R 626

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL LATIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1232 of 2011, decided on 17th November, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.380/392/365-B/34---Theft, robbery, abduction---Bail, refusal of---Abductee in her statement recorded under S.161, Cr.P.C., had elaborately given the facts regarding robbery committed in the house, her abduction, asking her uncle for ransom for her release and repeated assaults of zina-bil-jabr on her by the accused---Accused being not known to the parents of the abductee, his name could not be mentioned in the F.I.R. and such fact had indicated absence of mala fides on the part of the complainant or his daughter---If abductee had married the accused for love and with free-will, her false name could not have been mentioned in the Nikahnama---Abductee was present in the court and she had clearly and categorically owned the contents of her statement made under S.161, Cr.P.C.---Accused, prima facie, was connected with the offence alleged in the F.I.R.---Bail was refused to accused, in circumstances.

State v. Khuda Dad and others 2004 SCMR 425; Muhammad Wail Farooq v. The State 2007 MLD 1313; Nasir Khan v. Waseel Gul and another 2011 SCMR 710 and Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 ref.

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

----S. 497(2)---Bail---Further inquiry---Main consideration for grant of bail under S.497(2), Cr.P.C. is that if the court on the basis of tentative assessment of evidence forms an opinion that prima facie reasonable grounds existed to believe that accused has not committed the offence with which he was being charged, he would be allowed bail under S.497(2), Cr.P.C. as of right.

Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 ref.

M. Qadir Khan for Applicant.

Abdul Rehman Kolachi, A.P.-G. for Respondent.

Date of hearing: 17th November, 2011.

2012 Y L R 633

[Sindh]

Before Muhammad Ali Mazhar, J

KASHIF RAZA---Applicant

Versus

THE STATE---Respondent

Pre-arrest Bail Application No.S-348 of 2011, decided on 21st November, 2011.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.365-B/ 506(2)/ 342/34---Abduction, criminal intimidation, wrongful confinement---Pre-arrest bail, grant of---Further inquiry---Complainant had made two statements under S.164, Cr.P.C., one in favour of accused and the other against him---Was yet to be determined at the trial as to which statement was recorded according to the wishes of the complainant and which statement was recorded by force and compulsion---Co-accused more or less with the same allegation had already been granted bail---Liberty of an innocent person is not to be curtailed unless proved otherwise---Pre-arrest bail could be extended to a person who did not, prima facie, appear to have committed a non-bailable offence or his guilt needed further probe within the meaning of S.497(2), Cr.P.C.---Case against accused appeared to be reasonably doubtful---Complainant was not alleged to have been forced or seduced to illicit intercourse---No reasonable grounds were available to believe that accused had committed a non-bailable offence and at this stage his case required further inquiry---Pre-arrest bail was allowed to accused in circumstances.

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

----S. 498--- Pre-arrest bail--- Basic concept---Principle---Basic concept of bail is that liberty of an innocent person is not to be curtailed until and unless proved otherwise---Pre-arrest bail can be extended to a person who does not, prima facie, appear to have committed a non-bailable offence or there is room for further probe into his guilt within the meaning of S.497(2), Cr.P.C.---In a case tentatively appearing to be reasonably doubtful, court may extend the concession of pre-arrest bail to accused.

Qurban Ali Malano for Applicant.

Zulfiqar Ali Jatoi, D.P.-G. for the State.

Hadi Bux Bhatt and Waheed Ali Samtio for the Complainant.

Date of hearing: 13th October, 2011.

2012 Y L R 665

[Sindh]

Before Shahid Anwar Bajwa, J

HABIB-UR-REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1167 of 2011, decided on 2nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substances Act (VI of 1908), Ss.4, 5 & 7---Bail, grant of---Permission of Provincial Government admittedly had not been obtained before trial of accused, as required under S.7 of the Explosive Substances Act, 1908, which had made the case of accused of further inquiry---Accused was admitted to bail in circumstances.

Karamat Khan v. The State 2001 YLR 1390 ref.

Muhammad Asif v. The State 2006 PCr.LJ 1786 rel.

Raja Hassan Nawaz for Applicant.

Abdullah Rajput, A.P.-G. for Respondent.

2012 Y L R 668

[Sindh]

Before Muhammad Tasnim, J

AMIR BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-583 of 2011, decided on 21st November, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/201/34---Qatl-e-amd, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Incident was unseen---Dead body was not recovered on the pointation of accused---Delay of two days in lodging the F.I.R. had not been explained---Co-accused who had implicated the accused had already been enlarged on bail---Deeper appreciation of evidence on record could not be made at bail stage and prima facie involvement of accused in the crime or otherwise had to be found out by making a tentative assessment of the available material---Guilt of accused needed further probe in terms of S. 497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Manzoor Hussain and another v. The State 2011 SCMR 902; Suhail Ashraf v The State 2011 MLD 1077; Ali Hassan v The State 2006 PCr.LJ 403; Rahim Bux v The State 2005 YLR 1544 and Javed v The State 2011 YLR 2775 ref

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

----S. 497---Penal Code (XLV of 1860), Ss.302/201/34---Bail---Assessment of evidence---Principles---At bail stage deeper appreciation of material on record cannot be gone into, but only a tentative assessment of the same is to be made just to find out the prima facie connection of accused or otherwise with the alleged offence.

Salahuddin Panhwar for Applicant.

Shahzado Saleem, A.P.-G. for Respondent.

Date of hearing: 21st November, 2011.

2012 Y L R 674

[Sindh]

Before Nisar Muhammad Shaikh, J

NAVEED MAQSOOD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-785 of 2011, decided on 12th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Since parties had business dealings, defence plea as set up by accused needed to be considered after due trial of the case---Two other F.I.Rs., which had already been registered against the accused in respect of the similar nature of offence; and two other cheques, allegedly issued by accused to other persons, were also shown to have been dishonoured---Such circumstances showed that accused had been issuing the cheques to different persons, which were being bounced---Copy of the plaint of Insolvency petition produced by counsel for the complainant, had shown that there were 18 persons including the complainant, whom accused was liable to pay certain amounts---Said Insolvency petition was filed by accused before District Court one day prior to the date of cheque in question---Contention of accused that he never issued the cheque in question, was also not supported by Expert whose opinion/report, also had supported the version of the complaint---Conduct of accused had not been such to entitle him for a discretionary relief in a case which prima facie had connected him for dishonestly issuance of cheque of a huge amount---Accused being not entitled for concession of bail, his bail appli-cation was dismissed, in circumstances.

2009 SCMR 1210; 2011 SCMR 710; 2002 SCMR 1797; 2009 SCMR 1488; 2011 SCMR 1319; Muhammad Akram v. The State 2009 PCr.LJ 497; Kashif Khan v. The State 2009 PCr.LJ 1418; 2011 SCMR 161; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and 2000 PCr.LJ 497 distinguished.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

S.R. Saeed Qureshi for Applicant.

Applicant produced in custody.

Miss Shabana Kausar Jatoi for the Complainant along with Complainant in person.

M.Iqbal Kalhoro, A.P.-G. for the State.

2012 Y L R 684

[Sindh]

Before Syed Hasan Azhar Rizvi, J

IMRAN SHAFIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1196 of 2011, decided on 30th November, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/34---Bail---Assessment of evidence---Principles---For deciding bail application, deeper appreciation of evidence is to be avoided and only tentative assessment of the same is to be made looking into the contents of the F.I.R., statements of witnesses recorded under S.161, Cr.P.C. and the incriminating articles recovered during investigation, to form opinion about the prima facie nature of the offence.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail, refusal of---Injured eye-witness who was present at the scene of occurrence had fully implicated the accused, clearly assigning him the role of instigating the co-accused to kill the deceased and cause injuries to him---Offence fell within the prohibitory clause of S.497(1), Cr.P.C.---Sufficient evidence was present on record to, prima facie, link the accused with the commission of crime and disentitle him for concession of bail---Bail was declined to accused, in circumstances.

Azizur Rehman Akhund for Applicant.

Abdul Rehman Kolachi A.P.-G. for the State.

Wazir Hussain Khoso for the Complainant.

Date of hearing: 29th October, 2011.

2012 Y L R 691

[Sindh]

Before Imam Bux Baloch, J

HOOT KHAN---Petitioner

Versus

S.H.O., POLICE STATION NAUDERO and 3 others---Respondents

Constitution Petition No.S-1515 of 2011, decided on 4th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Registration of second F.I.R.---Scope---Petitioner had prayed that S.H.O. be directed to register his F.I.R.---In case of a private complaint, the Magistrate to whom a complaint was made, was empowered, either to enquire into the case himself, or direct an enquiry or investigation by a Police Officer, or any other person referred to in S.202, Cr.P.C., depending upon the circumstances of each case---Remedy by way of a private complaint was equally effective and practical remedy and thus an adequate remedy---Petitioner, in the present case, had agitated that murder of his son-in-law was committed by the complainant and another---Version of the petitioner was directed to be incorporated in the report under S.154, Cr.P.C. as the petitioner had been able to make out a case for registration of second F.I.R.---S.H.O. concerned was directed to register the F.I.R. of the petitioner, in circumstances.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and others PLD 1997 Kar 119 and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi and 12 others PLD 2005 SC 297 rel.

Shamsuddin Abbasi for Petitioner.

Abdul Hamid Bhurgri, A.A.-G., Abdul Rasheed Soomro and Noor Muhammad Noonari S.H.O. Police Station Naudero for Respondent

2012 Y L R 705

[Sindh]

Before Muhammad Ali Mazhar, J

BADSHAH alias MUHAMMAD SALEH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.589 of 2011, decided on 26th August, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.447, 506/B, 427, 147, 149, 148 & 504---Criminal trespass, mischief, criminal intimidation, intentional insult---Bail, grant of---Further inquiry---Medical certificate, was suspended with the observation that the injured did not appear before the Medical Board on three consecutive dates---Ten co-accused had already been granted bail---Sections 447, 427, 147 & 148, P.P.C. were bailable offences, while the effect of S.506-B, P.P.C., would be examined during the course of trial whether the tangible evidence was available which could connect accused for the offence of criminal intimidation or not---Present was a case of further inquiry---Section 336, P.P.C. though was non-bailable, but keeping in view the peculiar circumstances of the case, when Medical Board itself had suspended the medical certificate due to non-appearance of the injured three times, no medical certificate was in force which could hold accused responsible or guilty beyond any shadow of doubt for the punishment of an offence of Itlaf-i-Salahiyyat-i-Udw---Case being of further inquiry, accused was admitted to bail in circumstances.

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

----S. 497---Bail, concept of---Essential prerequisites for grant of bail---Basic concept of bail was that an innocent person's liberty might not be curtailed, until and unless proved otherwise---Essential prerequisites for grant of bail by virtue of subsection (2) of S.497, Cr.P.C., were that the court must be satisfied on the basis of material placed on record that there were reasonable grounds to believe that accused was not guilty of an offence punishable with death or imprisonment for life---Condition of said clause was that sufficient grounds existed for further inquiry into the guilt of accused, which would mean that question should be such which had nexus with the result of case and could show or tend to show that accused was not guilty of offence with which he was charged---Grant or rejection of bail was a discretionary relief, but such discretion should be exercised fairly and judicially---Word 'discretion' when applied to court, would mean sound discretion guided by law in a judicious manner and to lessen the hardship of the people---Basic principle was that the bail was not to be refused as punishment.

Saeed Jamal Lund for Applicant.

Syed Sardar Ali Shah, Assistant Prosecutor General for the State.

Date of hearing: 18th August, 2011.

2012 Y L R 724

[Sindh]

Before Irfan Saadat Khan, J

MUHAMMAD AZEEM alias DODO KATOHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.S-82 and 83 of 2009, decided on 12th August, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/149---Qatl-e-amd---Apprecia-tion of evidence---Benefit of doubt---Case was not free from reasonable doubts---Prosecution had failed to give plausible explanation that when the crime weapons were dispatched, how they reached the Ballistic Division---Enmity existed between the complainant and accused and deceased had been declared as 'Karo' in some 'Faisla' by a Nekmard---Complainant had improved his version by firstly stating that he reached the spot after hearing the fire shots and contradicted himself by stating that accused had fired upon the deceased in his presence---Contradiction was also found with regard to availability of two ladies at the place of incident and as to time for lodging F.I.R.---Postmortem report showed some wounds blackening and charring, whereas per deposition, fire shots were made upon the deceased from a distance of 10 paces and from that place blackening and charring could not take place---Material witness of the case had not been examined by the prosecution, of which no plausible explanation was available---Case, in view of such contradictions, improvements and other short comings was not free from reasonable doubts benefit of which must be given to accused, not as a matter of grace, but as a matter of rights---Impugned judgment passed by the Trial Court was set aside and accused was acquitted of the charge and was released.

Attaullah alias Qasim v. The State PLD 2006 Kar. 206; Muhammad Asghar alias Nannah v. The State 2010 SCMR 1706; Liaquat Ali v. The State 2011 SCMR 910; Hadi Bux v. The State PLD 1963 (W.P.) Kar. 805; Ayub Masih v. The State PLD 2002 SC 1048; The State v. Tarique Mahmood 1987 PCr.LJ 2173; Abdul Hussain v. The State 2003 PCr.LJ 1847; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Barkat Ali v. Muhammad Asif 2007 SCMR 1812; Nawaz Ali v. The State, 1981 SCMR 132 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Asif Ali Abdul Razak Soomro for Appellant.

Ali Raza Pathan, State counsel for Respondent.

Date of hearing: 10th August, 2011.

2012 Y L R 747

[Sindh]

Before Salman Hamid, J

Hafiz AHMED BUX and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-405 of 2010, decided on 28th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/429/34---Attempt to commit qatl-e-amd, mischief by killing or maiming cattle---Pre-arrest bail, confirmation of---There being counter cases against each other of the same date, place and time, it was to be seen as to who was aggressor and who was aggressed upon---Story as narrated in the F.I.R., was not free from doubts and was full of discrepancies---Was not possible that despite indiscriminate firing from either side, which lasted for many minutes, that too with automatic weapons, only one person sustained injury; and that too on non-vital part of the body i.e. right leg; and there was no other loss---As to how many empties were recovered and recorded in the mashirnama was also not clear---No damage to the property was mentioned in the F.I.R.---Reasonable doubt having been created in the case; interim pre-arrest bail granted to accused was confirmed, in circumstances.

Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682 and Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391 rel.

Shahbaz Ali M. Brohi for Applicants with Applicants in person.

Rafique Ahmed Abro and Muhammad Afzal Jagirani for the Complainant.

Naimatullah Bhurgri, State Counsel.

Date of hearing; 28th July, 2010.

2012 Y L R 759

[Sindh]

Before Muhammad Tasnim, J

BASHIR AHMED alias BASHOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-631 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Possessing unlicensed arms---Bail, grant of---Further inquiry---Case of accused did not fall under prohibitory clause of S.497, Cr.P.C.---Challan of the case had been submitted---Accused, in the previous two criminal cases, had already been acquitted and in three other cases he had been enlarged on bail by the Trial Court---Absence of private witness at arrest and recovery, had made the case of prosecution doubtful and it was yet to be decided at the trial as to whether accused had been falsely implicated with the case, or the recovery had been effected from him or not---Case requiring further inquiry, accused was admitted to bail, in circumstances.

Ahsan Gul Dahri for Applicant.

Shahzado Saleem, A.P.-G. for the State.

Date of hearing: 4th November, 2011.

2012 Y L R 768

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-656 M.As. Nos.4101 and 3389 of 2011, decided on 5th September, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 103---Control of Narcotic Sub-stances Act (XXV of 1997), S.9(b) & (c)---Possessing and trafficking narcotics--Bail, grant of---Provisions of S.103, Cr.P.C. were not applicable, stricto sensu to offences falling within provisions of the Control of Narcotic Substances Act, 1997---Accused alleging harassment at the hands of Police, filed constitutional petition which was pending, thereafter accused filed an application under S.491, Cr.P.C., which was also pending---Such a situation had clearly shown existence of a grudge if not enmity on the part of the Police---Person who had been litigating against the Police, could not be ruled out to be a natural target of the Police for roping in on whatever pretext they could---F.I.R. had stated that Police party went patrolling in a private car and from where the said private car came, was not stated in the F.I.R. and prosecution was unable to make any statement in that regard, which had strengthened the doubt---Accused was admitted to bail, in circumstances.

Ali Khan Khalhoro v. The State 2010 PCr.LJ 1087; Gulab Hussain v. The State 2009 YLR 189 and Nadeem v. The State 2007 MLD 1092 distinguished.

Altaf Hussain Chandio for Applicant.

Zulfiqar Ali Jatoi, D.P.-G. for the State.

2012 Y L R 776

[Sindh]

Before Muhammad Tasnim, J

AYAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-787 of 2010, decided on 2nd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 504 & 34---Qatl-e-amd, attempt to commit qatl-e-amd and intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---Counsel for the accused had submitted that accused had falsely been implicated in the case for the reason that he was a prosecution witness in a case under Ss.302 & 506, P.P.C. registered against the complainant---Delay of more than 7 hours in lodging F.I.R. had not been plausibly explained by the prosecution---Case of the prosecution was that on the pointation of accused the weapon was recovered, but for such recovery, accused was charged under S.13(e) of West Pakistan Arms Ordinance, 1965 and was tried by the Judicial Magistrate, who acquitted him---Similar role was assigned to co-accused who took the plea of alibi before the Trial Court, their said plea was accepted and their interim pre-arrest bail was confirmed---Such fact itself created doubt in the case of prosecution, and prima facie accused was also entitled to bail---As many as 17 injuries were caused to the deceased, which normally could not be caused by one accused who was allegedly having one pistol---Such aspect of the matter also required probe---Case required further inquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Mian Taj Muhammad Keerio for Applicant.

Shahzado Saleem Nahyoon, A.P.-G. for Respondent.

Date of hearing; 2nd December, 2011.

2012 Y L R 788

[Sindh]

Before Sarmad Jalal Osmany, J

Dr. ABDUL JABBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1242 of 2009, decided on 8th October, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Interim bail, confirmation of---Further inquiry---Delay in lodging the F.I.R. of almost 15 hours, had not been explained---Such aspect of the matter appeared to be most crucial when examined in the light of the fact that as per F.I.R., enmity existed between the parties and prior to lodging of F.I.R. the complainant was in touch with his landlord---Mala fides and false implication of accused, in circumstances could not be ruled out---Prosecution witnesses in their Police statements had given different versions regarding the role of accused in the crime in question and in none of those versions, it was stated that accused used his weapon---Role of accused, in circumstances, was a matter of further enquiry---Interim bail granted to accused, was confirmed, in circumstances.

Nazar Gul v. Islam and others 1998 SCMR 1223; Omar Daraz v. The State 2004 SCMR 1019; Muhammad Ibrahim and another v. The State 2010 PCr.LJ 907; Bahadur v. Muhammad Latif and others 1987 SCMR 788; Riaz Ahmed v. The State 2009 SCMR 725; Rehmatullah and another v. The State PLD 2008 Kar. 170; Allah Bachayo and another v. The State 2009 PCr.LJ 503 and Allah Bachayo and others v. The State 2009 SCMR 1352 ref

A.Q. Halepota for Applicant.

Salahuddin Panhwar for the Complainant.

Imtiaz Ali, Addl. Prosecutor General, Sindh.

Date of hearing: 20th September, 2010.

2012 Y L R 802

[Sindh]

Before Syed Hasan Azhar Rizvi, J

RASHID BHUTTI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.255 of 2011, decided on 9th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Identification memo had shown that eye-witnesses had identified the accused during identification parade---Offence committed by accused was heinous one and fell within the prohibitory clause of S.497, Cr.P.C.---Bail was granted to co-accused on medical ground while case of accused was on different footing---Grounds taken by accused in the bail application and arguments advanced by his counsel before the High Court were absolutely different than that of the co-accused---Accused remained fugitive from law and was declared absconder---Accused though would not lose his right of bail on that ground, but the court considering bail application of an absconder, had to act with a much greater degree of circumspection---Bail application of accused was dismissed, in circumstances.

2007 PCr.LJ 1497; 2007 PCr.LJ 1631; NLR 1995 Criminal 421; 2008 PCr.LJ 135; 2004 PCr.LJ 35; 2001 PCr.LJ 577; PLJ 2008 Pesh. 509; 2009 PCr.LJ 1101; 1991 SCMR 322; 1992 SCRM 2088; 1978 PCr.LJ 176; 2007 MLD 242; 1994 PCr.LJ 508; 2003 YLR 1263; 1964 PLD W.P. 303 and 2007 MLD 444 distinguished.

Muhammad Yaqub v. The State 2011 PCr.LJ 996 ref.

Mushtaq Ahmed Jalalvi for Applicant.

Umer Awan for the Complainant.

Ms. Seemi Zaidi A.P.-G. for the State.

Date of hearing: 25th November, 2011.

2012 Y L R 825

[Sindh]

Before Muhammad Tasnim, J

TARIQ---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.223 of 2009 and M.A. No.3948 of 2011, decided on 15th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)---Penal Code (XLV of 1860), Ss.392/34 & 498---Robbery, house trespass---Suspension of sentence on ground of statutory delay---Accused was in custody for the last 31 months---Statutory period of two years had passed, but appeal of accused had not been disposed of---Delay in disposal of appeal was not attributable to accused---Accused was not a previous convict, hardened, desperate or a dangerous criminal---No act of terrorism punishable with death or imprisonment for life was assigned to the accused---Case of accused squarely fell within the provisions of S.426(1-A), Cr.P.C.---Sentence of accused was suspended and he was admitted to bail in circumstances.

Aamir Mansoob Qureshi for Appellant.

Abrar Ali Khichi, A.P.-G. for the State.

Date of hearing: 15th September, 2011.

2012 Y L R 858

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD SHAHBAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1123 of 2010, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302/147/148/149---Qatl-e-amd, rioting, rioting armed with deadly weapons---Ad interim pre-arrest bail, confirmation of---Further inquiry---Delay in lodging F.I.R.---Postmortem report---Accused and co-accused had allegedly caused lathi blows to complainant's father, which hit him on his chin and other parts of the body---Delay of five months in lodging of F.I.R. was not explained---F.I.R. alleged that accused and co-accused attacked deceased with lathies but in the post-mortem report only one injury over the chin of face was stated---Doctor, who had examined the deceased's body sent deceased's viscera for pathological examination to determine the cause of death but same did not render any positive result---Doubts in prosecution's story and case being that of further inquiry, pre-arrest bail granted to accused was confirmed, in circumstances.

Ahmed v The State 2007 PCr.LJ 987; Kouro v The State 2004 YLR 2434; Faqir Muhammad and 2 others v The State 2007 MLD 340; Haji Gulu Khan v The State 1995 SCMR 1765 and Riaz Ahmed v The State 2009 SCMR 725 ref

Qurban Ali Malano for Applicants

Zulfiqar Ali Jatoi, D.P.-G. for the State

2012 Y L R 873

[Sindh]

Before Shahid Anwar Bajwa, J

ALI GOHAR alias IGLOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-182 of 2011, decided on 28th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395, 324, 148 & 149---Dacoity, attempt to commit qatl-e-amd---Bail, grant of---Deceased had allegedly received an injury and died on the spot, but the Mashirnama of inspection of scene of crime did not disclose or state any blood stains on the ground---Accused was said to be armed with Kalashnikov, but no injury caused by Kalashnikov was stated in the post mortem report---Five empties were claimed to have been recovered from the spot, but the Kalashnikov statedly used by the accused, had not been recovered---Accused was admitted to bail, in circum-stances.

Aftab Ahmed Gorar for Applicant.

Shamasuddin Abbasi for the Complainant.

Naimatullah Bhurgri, State Counsel.

Date of haring: 28th July, 2011.

2012 Y L R 883

[Sindh]

Before Muhammad Tasnim, J

NOOR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-558 of 2011, decided on 4th November, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 504 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---Deceased died due to firing made by person other than accused and no injury whatsoever had been alleged to have been caused by accused to anyone---Recovery of pistol from accused was not effected at the time of his arrest, but same was alleged to have been recovered by Police on the pointation of accused after remaining in custody for about seven days---Statements of the prosecution witnesses under S.161, Cr.P.C. were recorded after delay of 16 days---All such facts had made the case of prosecution doubtful and false implication of accused could not be ruled out, which required further inquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Yaroo v. The State 2004 SCMR 864; Faraz Akram v. The State 1999 SCMR 1360; Shoukat Illahi v. Javed Iqbal and others 2010 SCMR 966 and Mulo Ahmed v. The State 2011 MLD 1171 ref.

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

----S. 497---Bail, grant of---Principles---Deeper appreciation of record could not be gone into at bail stage, but only a tentative assessment was to be made just to find out as to whether accused was, prima facie, connected with the commission of offence or not.

Badal Gahoti for Applicant.

Shahzada Saleem Nahyoon, A.P.-G. for the State.

Mrs. Razia Ali Zaman Khan for the Complainant.

Date of hearing: 4th November, 2011.

2012 Y L R 901

[Sindh]

Before Imam Bux Baloch, J GHULAM YASEEN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-319 and M.As Nos. 1311 and 1326 of 2011, decided on 13th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 114, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act---Bail, refusal of---F.I.R., in the case was lodged promptly, stating all the facts by the complainant---Two innocent persons lost their lives and two prosecution witnesses received injuries in the occurrence---Offence against accused fell within the prohibitory clause of S.497, Cr.P.C. and accused had failed to make out a case for bail---Bail application was dismissed, in circumstances.

Muhammad Afsar v The State 1994 SCMR 2051 and Muhammad Haroon v The State 1994 SCMR 2161 distinguished.

Inayat v The State 2002 SCMR 129; Mureed v The State 2003 SCMR 64; Muhammad Asghar v The State 2006 SCMR 966 and The State v. Khalid Sharif 2006 SCMR 1265 rel.

Asif Ali Abdul Razak Soomro for Applicants

Sardar Khan Lashari for the Complainant

Naimatullah Bhurgri, State counsel.

2012 Y L R 923

[Sindh]

Before Shahid Anwar Bajwa, J

GHULAM RASOOL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1061 of 2010, decided on 12th December, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.364, 392, 504, 506 & 149---Kidnapping or abducting in order to murder, robbery, intentional insult with intent to provoke breach of peace, criminal intimidation---Bail, refusal of---Accused, who were police constables, were alleged to have taken the abducted person with them from a picket, after which he never returned----Accused's contention was that there was an abnormal delay of fifteen days in lodging of F.I.R. and no motive had been alleged and even otherwise they were entitled to bail on statutory ground in terms of S. 497, Cr.P.C---Validity---In cases of abduction of a family member, it was always first attempt of the family to try to slocate the abducted person and to get him recovered and as such families do not rush to police stations the moment abduction takes place---Delay of fifteen days by family in lodging of F.I.R. was not anything out of the usual and it could not be held to have created any doubt---As to why the accused had kept the abducted person and whether there was an intention to murder or otherwise dispose him off was something that was yet to be proved through evidence but, prima facie, disappearance of the abductee for almost six months did give some indications---Accused were dangerous and hardened criminals since as police constables they had detained a boy of tender years at a picket and made his elder persons to go away and thereafter for six months nobody saw or heard of that boy---Accused were not entitled to bail even on statutory ground of delay---Bail application of accused was dismissed accordingly.

Shahzor and another v. The State 2006 YLR 3167; Nasir Khokhan v. The State 2006 YLR 3042; Zahir Ahmed Khan v. The State 2003 SCMR 919; Muhammad Hanif v. The State 1996 PCr.LJ 478; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Madiha Tabeen v. The State 2009 PCr.LJ 82 and Muhammad Zakari and another v. The State and another 2009 PCr.LJ 389 distinguished.

(b) Words and phrases---

---"Compulsion"---Definition and scope.

A.R. Faruq Pirzada for Applicants.

Zulfiqar Ali Sangi for the Complainant.

Zulfiqar Ali Jatoi, D.P.-G.

2012 Y L R 934

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ANWAR ALI alias KARRIRI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.868 of 2011, decided on 9th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd common intention--Bail, grant of---Further inquiry---Co-accused, who had inflicted fire shot injuries upon the deceased, had already been acquitted by the Trial Court---Bail could be granted, if an accused had a good case for bail on merits and mere absconsion of accused, would not come in the way while granting the bail---Role of accused, as to whether he had accompanied co-accused with common intention to commit the offence, could only be decided after the trial---Such important aspect had to be adjudged with due care and caution keeping in view the circumstances of prosecution case, where co-accused who had been attributed and assigned crucial role connecting them with the offence, had already been acquitted---Case of accused required further inquiry and in peculiar facts and circumstances of the case, was entitled to be released on bail---Bail was granted to accused, in circumstances.

Mitho Pitafi v. State 2009 SCMR 299; Rasool Muhammad v. Asal Muhammad and others 1995 SCMR 1373; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; State v. Mian Mukhtar Ahmed Awan 1991 SCMR 322; Muhammad Sadiq and another v. 1996 SCMR 1654 and Muhammad Yaqoob, Sub-Inspector v. State PLD 2001 SC 376 rel.

Muhammad Aslam Shahani for Applicant.

Syed Sardar Ali Shah, Assistant Prosecutor General for Respondent.

Date of hearing: 9th August, 2011.

2012 Y L R 943

[Sindh]

Before Imam Bux Baloch, J

IMTIAZ ALI RIND---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.564 of 2011, decided on 2nd January, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/397---Qatl-e-amd, attempt to commit qatl-e-amd, robbery or dacoity with attempt to cause death or grievous hurt---Bail, refusal of---Promptly lodged F.I.R.--Correct identification by complainant and witnesses---Complainant had lodged F.I.R. within one hour of the occurrence by mentioning the name of the accused as one of the culprits and the witnesses in their statements recorded under section 161 and 164 Cr.P.C, had supported the version of the complainant---Accused was identified at the time of incident by complainant and his witnesses---Contention of accused that case was doubtful, was to be decided by Trial Court after evaluating the evidence adduced by the prosecution---Post-mortem report also supported the ocular evidence--Non-recovery of firearm from the accused was not a valid ground for grant of bail as empty shells of the firearm were recovered during investigation---Case of accused did not call for further inquiry as contemplated under S. 497(2) Cr.P.C---Accused was denied bail, in circumstances.

Javed Iqbal v. The State 2008 PCr.LJ 1578; Anwar Zeb v. Muhammad Riaz and another 2009 PCr.LJ 1085; Abdul Sattar and another v. The State 2009 PCr.LJ 575 distinguished.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482 rel.

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

----S. 497---Bail---Assessment of evidence, extent of---Principle---For grant of bail, only tentative assessment of evidence is to be made whereas deeper appreciation is to be avoided.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482 rel.

Muneer Ahmed Bhambro for Applicant.

Haji Shamsuddin Rajper for the Complainant.

Syed Sardar Ali Shah Rizvi, A.P.-G. for the State.

2012 Y L R 964

[Sindh]

Before Shahid Anwar Bajwa, J

SHABIR and 6 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.D-595 of 2010, decided on 19th December, 2011.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.302/337-A(i)/ 337-A(ii)/337-F(i)/ 147/ 148/ 149--- Qatl-e-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah (damiyah), rioting, rioting armed with deadly weapons---Ad interim pre-arrest bail , confirmation of---Dispute over property---F.I.R. stated that accused and one of his co-accused caused injuries to the deceased by hitting his head with lathies but post mortem report indicated that there was only one injury---Said co-accused and another co-accused had already been granted bail by High court and on the rule of consistency accused was also entitled to bail---All other co-accused were not alleged to have caused any injury to the deceased---Accused and co-accused were armed with firearms but no firearm was used for causing any injury to any person---Pre-arrest bail granted to accused and co-accused (except one) was confirmed, in circumstances.

Mst. Qidrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 and Haji Muhammad Zaman v. The State 2011 MLD 93 distinguished.

Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss. 302/337-A(i)/337-A(ii)/337-F(i)/ 147/ 148/ 149--- Qatl-e-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah (damiyah), rioting, rioting armed with deadly weapons---Ad interim pre-arrest bail , refusal of---Absence of accused on the date of hearing of bail application---Excuse for absence---Accused (co-accused) had earlier been granted pre-arrest bail but sent an application for excusing his absence from the bail hearing as he had to go to another city for condolence purposes---Such excuse was not accept-able and pre-arrest application of accused was dismissed, in circumstances with order to issue notice to his surety.

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

----S. 497(2)--Bail on grounds of further inquiry---Scope---Guidelines---Case would only fall within the scope of further inquiry under S. 497(2), Cr.P.C., if the court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years---In the absence of a finding to such effect, there will be no occasion for the court to hold that the case is one of further inquiry---In order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non-bailable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the court, if the case is still at the stage of investigation will make a tentative assessment of the allegations against the accused person in the light of the material so far collected by the investi-gation agency to connect him with the offence---In case the trial has commenced, the court taking cognizance of the case may, in addition to the material collected by the police, also take into consideration the evidence produced before it.

Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 quoted.

Muhammad Iqbal Mahar for applicants except applicant No.7.

Alam Sher Bozdar for the Complainant.

Zulfiqar Ali Jatoi, D.P.G. for the State.

2012 Y L R 973

[Sindh]

Before Shahid Anwar Bajwa, J

ZULFIQAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-511 of 2011, decided on 23rd December, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148/149---Qatl-e-amd, rioting, rioting armed with deadly weapons common object---Bail, grant of---Only allegation against accused was that of 'Lalkara'---Accused had allegedly caused an injury on the deceased's back and medical report of deceased revealed that there were two injuries on the deceased's back, therefore, it was yet to be determined as to which of these injuries caused the deceased's death---Report of medical officer stated that death had been caused by the injury which according to the F.I.R. had allegedly been caused by the co-accused---Accused had been a fugitive from law for five years but thereafter he had been behind bars for eighteen months which did go some distance towards mitigating the rigors of his absconsion---Accused was admitted to bail in circumstances.

Akhtar Hussain v. The State 2005 YLR 1688; Muhammad Boota v. The State 2004 PCr.LJ 1857; Muhammad Khan v. The State 2001 PCr.LJ 180 and Muhammad Imran v. The State 2008 PCr.LJ 1555 distinguished.

Muhammad Sadique v. Sadique and others PLD 1985 SC 182 and Sher Ali alias Sheri v. The State 1998 SCMR 190 rel.

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

----S. 497---Bail---Absconsion, effect of---Absconder is not absolutely denuded of his right to bail but he does loose some of his normal rights both under procedural as well as substantive law.

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

Kashif Noor Khan Pathan for Applicant.

Irshad Ali R. Chandio for the Complainant.

Miss Shazia Surahio, State counsel.

Date of hearing: 23rd December, 2011.

2012 Y L R 983

[Sindh]

Before Syed Hasan Azhar Rizvi, J

IBRAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1326 of 2011, decided on 10th December,

2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, refusal of---Unlawful assembly---Common intention---Name of accused was mentioned in the F.I.R.---No specific role had been assigned to accused, nor plausible explanation was rendered to justify the presence of accused at the place of occurrence, which had led to a tentative view that accused shared common intention to commit murder of deceased---Reasonable grounds were available to believe that accused had shared the common intention with co-accused in the commission of murder---Nothing was available on record to show that complainant party had any motive or reason to falsely implicate accused in the case---Case was at preliminary stage and evidence of none of the prosecution witnesses had been recorded---Police had submitted the challan---Case of accused did not fall within the purview of further inquiry as he had formed an unlawful assembly in furtherance of their common intention, where two young innocent persons had lost their lives and accused was vicariously liable for the same---Bail plea of accused was rejected, in circumstances.

Muhammad Akram v. The State 1995 PCr.LJ 1037; Nisar Ahmed and another v. The State 2005 PCr.LJ 652; Muhammad Amin alias Irfan and another v. The State 2004 SCMR 1560; Akhtar Hussain and another v. The State 2005 MLD 1904; Muhammad Khalid v. The State 2007 YLR 1281; Syed Ali Shah alias Shahji v. The State 1993 PCr.LJ 1118; Hayatullah v. Lal Badshah and another PLD 2009 Pesh. 28; Ali Hasan v. The State 1997 PCr.LJ 767; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822; Ramzan and another v. The State 2011 MLD 1436; Khamiso and another v. The State 1999 PCr.LJ 9; Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 and Mulo Ahmed v. The State 2011 MLD 1171 ref.

Muhammad Nadeem for Applicant.

Raja Ali Asghar for the Complainant.

Abdullah Rajput, learned A.P.G. for Respondent.

Date of hearing: 7th December, 2011.

2012 Y L R 992

[Sindh]

Before Maqbool Baqar, J

AJEEB ALI SHAIKH and another---Petitioners

Versus

PROVINCE OF SINDH through the Home Secretary and 4 others---Respondents

Constitution Petition No.D-3324 of 2011, decided on 24th November, 2011.

Penal Code (XLV of 1860)---

---S. 365-B---Constitution of Pakistan, Art. 199---Kidnapping, abducting or inducing woman to compel her marriage etc.---Constitutional Petition---Quashing of F.I.R.---Contention of petitioner was that she had married the accused, who was the subject of the F.I.R., on her freewill before a Magistrate and the father of the petitioner had lodged the said F.I.R. concocting a false story, being annoyed with the marriage---Constitutional petition was disposed of by the High Court with the direction to the Investigating Officer to record the statement of the petitioner that was given before the High Court in the present petition and submit a report to the Trial Court accordingly, and that the matter should be disposed of the next date and till such time the accused in the F.I.R. should not be arrested.

Syed Amir Hyder Naqvi for Petitioners.

Adnan Karim, A.A.-G. I.O. Niaz Ahmed Mughal and SIP Zafarullah Bajwa for the State.

Respondent No.5 present in person.

2012 Y L R 1010

[Sindh]

Before Shahid Anwar Bajwa, J

GOHAR alias ALI GOHAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-886 and S-973 of 2010, decided on 16th January, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302/324/337-H (2)/147/148/149/114---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, abettor present when offence committed---Pre-arrest bail , confirmation of---Dispute over marriage---Accused and his co-accused had allegedly killed the complainant's wife and injured other family members when complainant refused to give his daughter's hand in marriage---Accused and co-accused were alleged to have fired after giving hatchet blows but whether they had intention to commit murder was questionable as it would have been much easier for them to do the same with their firearms---No statement existed to establish that accused had instigated his co-accused to commit murder---Case of accused and co-accused was distinguishable from the other co-accused (as accused was only alleged to have resorted to firing after the incident of hatchet blows and said co-accused had allegedly only knocked at the door of the complainant and asked him whether he was prepared to give his daughter's hand in marriage)---Said other co-accused appeared to be the leader of the gang and gave hakal and instigated others to commit murder---Pre-arrest bail granted to accused and co-accused was confirmed in circumstances.

Sultan Ahmed Siddique and 3 others v. The State PLD 2010 Kar. 110; Muhammad Hashim Khoso v. The State 2011 PCr.LJ 1580 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 distinguished.

Darya Khan and others v. The State 2006 MLD 1958; Manzoor Hussain and another v. The State 2010 UC 505; Umar Hayat and another v. The State 2009 PCr.LJ 1058 and Siraj v. State 2000 PCr.LJ 1220 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302/324/337-H(2)/147/148/149/114---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, abettor present when offence committed---Pre-arrest bail, refusal of---Dispute over marriage---Hakal/lalkara to instigate murder---Accused (co-accused) and his companions had allegedly killed the complainant's wife and injured other family members when complainant refused to give his daughter's hand in marriage---F.I.R. revealed that accused's father demanded complainant to give his daughter's hand in marriage and upon being refused accused got infuriated and made the same request later at the complainant's house, who refused again because of which accused instigated his companions to commit murder---Accused appeared to be the leader of the gang who gave hakal to instigate murder---Pre-arrest bail application of accused was refused in circumstances.

Sultan Ahmed Siddique and 3 others v. The State PLD 2010 Kar. 110; Muhammad Hashim Khoso v. The State 2011 PCr.LJ 1580 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 distinguished.

Darya Khan and others v. The State 2006 MLD 1958; Manzoor Hussain and another v. The State 2011 SCMR 902; Umar Hayat and another v. The State 2009 PCr.LJ 1058 and Siraj v. State 2000 PCr.LJ 1220 ref.

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

----Ss. 497/498--- Bail--- Grant/refusal/ confirmation---Raising of Hakal/ Lalkara---Where only Hakal/Lalkara is alleged, the court extends indulgence and grants bail on the ground that it is yet to be seen as to what was the intention behind such lalkara and the circumstances in which lalkara was given.

Manzoor Ahmed Junejo for Applicants.

Amanullah Malik for the Complainant.

Zulfiqar Ali Jaoti, D.P.G.

2012 Y L R 1018

[Sindh]

Before Syed Hasan Azhar Rizvi, J

SOHAIL AHMED alias ABU HURARA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1039 of 2011, decided on 27th October, 2011.

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

----Art.22---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd---Identification of accused---Unless role to each accused in crime is attributed at the very outset, his identification at identification parade or in court would be of no use.

Siraj-ul-Haq and another v. The State 2008 SCMR 302 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail---Assessment of evidence---Deeper appreciation of evidence is not desirable and only tenta-tive assessment thereof is to be made at the time of deciding bail application.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Accused was named in the F.I.R.---Eye-witness had identified the accused as a participant of the occurrence in the identification parade before Judicial Magistrate---Case of accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused, thus, was not entitled to grant of bail and the same was refused to him accordingly.

Sabir Ali Waseem and 3 others v. The State 2007 YLR 2142; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Muhammad Rafique v. The State 1997 SCMR 412 and Zulfiqar Ali v. The State 2011 YLR 2270 ref.

Muhammad Aslam Khan Durrani for Applicant.

Aqib Rajpar for the Complainant.

Shahid Ahmed Shaikh learned A.P.-G. for the State.

2012 Y L R 1035

[Sindh]

Before Faisal Arab, J

G.S. NOORWAL through L.Rs.---Petitioner

Versus

NAFEES AHMED and 4 others---Respondents

Constitutional Petition No.S-776 of 2010, decided on 5th October, 2011.

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

---Ss.18 & 15---Constitution of Pakistan, Art.199---Constitutional petition---Notice of change of ownership---Original tenant of the premises had died and his son (petitioner) had become the statutory tenant of the premises---Respondent (landlord) purchased the premises from the original owner and became the new landlord---Said new landlord dispatched notice under S.18 of the Sindh Rented Premises Ordinance, 1979 intimating change of ownership and upon not receiving rent under the statutory period of 30 days, filed an ejectment petition before the Rent Controller on ground of non-payment of rent by tenant(petitioner)---Said ejectment petition was allowed by Rent Controller---Validity--Point which needed to be examined was whether said notice was duly served upon the tenant, and whether any wilful default in the payment of rent was committed by the tenant---Said notice had been dispatched in the name of the deceased tenant and there was no acknowledgement receipt on record to show that the same was delivered on the date claimed by the landlord---Tenant had dispatched rent through pay order and upon refusal of landlord to receive the same had dispatched the rent through money order and upon the return of the money order had deposited the rent in court---Tenant at all material times, clearly, acted with necessary dispatch to tender the rent to the new owners---Even if it was assumed that the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was dispatched and received on the dates claimed by the landlord, the fact remained that the same was dispatched in the name of the deceased tenant and there was no documentary proof that it was delivered to the tenant on the purported date---Default, if any, was of a technical nature, and ought to have been condoned by the courts below---Rent was to be dispatched within 30 days of the receipt of notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 but there was no proof that such notice was received by the tenant---Under S. 15 of the Sindh Rented Premises Ordinance, 1979 benefit had been given to the tenant in case of commission of one default if there was no previous default---Such benefit, though, had not been provided under S. 18 of the Sindh Rented Premises Ordinance, 1979, could be extended under the law in peculiar circumstances of the case---Orders of courts below were set aside, and constitutional petition was allowed, accordingly.

1991 MLD 1088; 2008 CLC Kar. 1598; 1989 CLC Kar. 757 and 1992 SCMR 2400 ref.

Abdul Hameed Shaikh for Petitioner.

Hasin Ahmed for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

Nemo for Respondent No.5.

Date of hearing: 5th October, 2011.

2012 Y L R 1042

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

SHERAZAD PATHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-24 of 2010, decided on 24th November, 2011.

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

----S. 9(c)---Trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that Charas weighing 200 Kgs contained in 160 packets was recovered from the secret cavities of the truck driven by the accused---Charas was stated to have been wrapped in plastic pannes---No panne had been mentioned either in the F.I.R. or in the evidence of recovery witnesses---Quantity of charas taken out for sample was different from the quantity received in the office of Chemical Examiner---Weight of the recovered charas mentioned in the F.I.R. did not tally with the weight disclosed in recovery evidence---Weighing process had revealed difference in quantity of charas than the actual weight of the same alleged by the prosecution---Case of prosecution, thus, was replete with doubts and benefit of each doubt had to be given to accused---Accused was acquitted accordingly.

Abdul Baqi Jan Kakar for Appellant.

Ameer Ahmed Narejo for the State.

Date of hearing: 27th October, 2011.

2012 Y L R 1048

[Sindh]

Before Ahmed Ali M. Shaikh, J

WALI MUHAMMAD RAHMOON---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.806 of 2011, decided on 29th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 406 & 504---Cheating and dishonestly inducing delivery of property, criminal breach of trust, intentional insult---Bail, grant of---Partnership agreement between accused and complainant---Prosecution's entire case depended upon documentary evidence and all documents were in possession of the prosecution and there was no possibility of tampering with such evidence---Amount allegedly received by accused from the complainant could be recovered through a competent civil court---Terms and conditions of partnership agreement revealed that duration of project/business was one year, which ended in April, 2009 but F.I.R. was lodged in June, 2011 with an inordinate delay and complainant did not furnish any explanation in that regard---Offences alleged against accused not falling within the prohibitory clause of S.497(1) of Cr.P.C, he was admitted to bail.

Tariq Bashir v. State PLD 1995 SC 34 and Faisal Khawaja v. The State 2001 MLD 1237 rel.

Saeed Ahmed v. State 1996 SCMR 1132; Farhat Husain Shah v. State 2010 SCMR 1986; Ghulam Ali v. Javid 1989 PCr.LJ 507; Ubedullah v. State 2003 PCr.LJ 1921; Masood Baghpati v. State 1999 PCr.LJ 1648 and Shaikh Muhammad Taqi v. State 1991 PCr.LJ 963 ref.

Muhammad Yaqoob v. Senior Supdt. of Police PLD 2000 Lah. 421, Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442; Afzaal Ahmed v. State 2003 SCMR 573; Imtiaz Ahmed v. State PLD 1997 SC 545; Muhammad Khan v. Magistrate Section 30 PLD 2009 Lah. 401 and Muhammad Zaman v. State 2009 PCr.LJ 913 distinguished.

Salahuddin Panhwar for Applicant.

Abdul Rehman Kolachi, A.P.-G. for the State.

Zamir Ghumro for the Complainant.

2012 Y L R 1055

[Sindh]

Before Muhammad Tasnim, J

Syed MUHAMMAD HANIF---Applicant

Versus

THE STATE through Deputy Director (F.I.A.) and 2 others---Respondents

Criminal Bail Application No.1379 of 2011, decided on 3rd January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 420/ 468/ 471/ 473/ 489-F/ 34/ 109---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, dishonestly issuing a cheque, abetment---Bail, grant of---Further inquiry---Preparation, sale and use of forged National Identity Cards (NICs) and other relevant documents required for nationality and passports---Counterfeit currency notes---Federal Investigation Agency (FIA) had sent an undercover operative to the accused for preparation of fake Computerized National Identity Card (CNIC) and on appointed delivery date of said CNIC, FIA conducted a raid and allegedly recovered the fake CNIC and counterfeit currency notes from the accused---No private person from the vicinity was associated to act as mashir or as a witness at the time of arrest and recovery even though the raid was conducted on spy information by FIA---F.I.R. contained the allegation that FIA's undercover operative had allegedly made payment to co-accused for preparing fake CNIC but said operative was neither cited as prosecution witness in the challan nor his statement under S. 161 Cr.P.C., was recorded---Prosecution's case was based on documentary evidence but same had not placed all material/documents before the Trial Court as per challan---Prosecution had failed to point out any material which prima facie connected the accused with the commission of the offence---Principal accused and co-accused had already been admitted to bail and case of accused being similarly placed, required further inquiry in terms of S. 497(2) Cr.P.C.---Accused was admitted to bail accordingly.

Arshad H. Lodhi for Applicant.

Muhammad Qasim, Standing counsel.

2012 Y L R 1060

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.985 and M.As. Nos. 7871, 7872 of 2011, decided on 29th August, 2011.

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

----S. 497(1)---Bail---Prohibitory clause of S.497, Cr.P.C.---Lower side of the punishment is to be taken into consideration at bail stage.

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

----S. 103---Search to be made in presence of witnesses---Nature and scope---Requirement that two members of the public of the locality should be mashir to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of the case it was not possible to have two Mashirs from the public.

State v. Basher PLD 1997 SC 408; and Mushtaq Ahmed v. The State PLD 1996 SC 574 ref.

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

----S. 497---Bail---Press clipping---Credibility---Newspapers report about the event that is not rebutted is treated as reliable evidence.

Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. PLD 1976 SC 57 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

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

----S. 497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---First Information Report showed that one Kalashnikov and 1000 bullets were recovered from the accused, but the arms and ammunition recovered from the accused persons as mentioned by the Addl. I.G. Police in his press conference published in the daily newspaper, did not include any Kalashnikov, for which the present accused had been charged---Version in the F.I.R., was not in line with the contents of the said news item---Case against accused did not fall under prohibitory clause of S.497(1), Cr.P.C. and being doubtful, needed further inquiry into his guilt in terms of S.497(2), Cr.P.C.---Bail was allowed to accused, in circumstances.

State v. Basher PLD 1997 SC 408, Atta Muhammad alias Fauji v. The State 1995 SCMR 1409; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2011 Lah. 382; Mushtaq Ahmed v. The State PLD 1996 SC 574; Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. PLD 1976 SC 57 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

Muhammad Farooq for Applicant.

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

2012 Y L R 1066

[Sindh]

Before Shahid Anwar Bajwa, J

ALLAHYAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-380 of 2011, decided on 12th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/114/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, abettor present when offence is committed, rioting armed with deadly weapons---Bail , grant of---Local rivalry---Accused was alleged to have instigated his co-accused, upon which they fired, which resulted in the death of complainant's nephew---Contention of accused that he was only alleged to have raised proverbial hakal and according to F.I.R. he was empty-handed, therefore, there could be no question of even ineffective firing against him---Validity---Present case was of typical local rivalries and although accused had gone with the intention to commit a crime but he had not fired---Accused was released on bail, in circumstances.

Mumaras v. The State PLD 2009 SC 385 distinguished.

Abdul Rehman v. Javed and 2 others 2002 SCMR 1415 fol.

Manzoor Hussain Larik for Applicant.

Zulfiqar Ali Jatoi D.P.-G. for the State.

2012 Y L R 1071

[Sindh]

Before Shahid Anwar Bajwa, J

AZIZULLAH NIAZI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1049 of 2011, decided on 2nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302---Qatl-e-amd---Bail, grant of---Doubtful statements of witnesses---Previous grudge---F.I.R. stated that mother of deceased had informed the complainant (her other son) that deceased had been murdered by the accused and body of deceased had been taken to hospital, but she had not made any statement regarding presence of any person---Deceased's mother in her statement under S. 161 Cr.P.C stated that deceased went out after which she heard report of a fire shot on which father and two relatives of the deceased went outside and saw the accused holding pistols in his hand---Father and relatives of deceased were not mentioned by deceased's mother in the F.I.R. and no reason had been furnished as to why these names were not disclosed---No person from the locality was cited as witness---Mother of deceased had stated in her statement under S.161 Cr.P.C that accused in the past rented a shop from the complainant party from which he was evicted and for that he carried a grudge, therefore, bad blood between parties could not be denied---Doubt existed as to the veracity of the statements of witnesses---Accused was released on bail, in circumstances.

Shah Muhammad v. The State and another 1999 PCr.LJ 1105; Zahid Shah v. The State 2001 PCr.LJ 134; Mst. Parveen Akhtar v. The State and others 2002 SCMR 1886 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 distinguished.

Ms. Shamim Aolia for Applicant alongwith Syed Mujahid Hussain.

Amir Hyder Shah Naqvi for the Complainant.

M. Iqbal Awan, A.P.-G. for the State.

2012 Y L R 1076

[Sindh]

Before Shahid Anwar Bajwa, J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-380 of 2011, decided on 25th November, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/114---Qatl-e-amd, rioting armed with deadly weapons, abettor present when offence committed---Bail, refusal of---Absconsion of accused---Accused had been a fugitive from law for more than three years and clear role of firing at and injuring the deceased by him had been alleged in the F.I.R.---Accused not being entitled to concession of bail, his bail application was dismissed.

Muhammad Shakil v. Sakhi Zaman and 3 others 1999 SCMR 32 distinguished.

Sharbat and another v. The State 2003 MLD 1191 and Bashir Ahmed and another v. The State and another 2005 PCr.LJ 8 ref

Sher Ali alias Sheri v. The State 1998 SCMR 190 and Awal Gul v. Zawar Khan and others PLD 1985 SC 402 rel.

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

---S. 497---Bail---Absconsion, effect of---Principles---When on merits the accused has a good case, abscondence alone should not come in the way of grant of bail---Fugitive from law loses some of his rights, but he does not lose the right of bail forever.

Sharbat and another v. The State 2003 MLD 1191 quoted.

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

----S. 497---Bail---Absconsion, effect of---Principles---Fugitive from law and courts loses some of the normal rights granted by the procedural and also substantive law---Unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case, the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct)---Accused cannot then seek a reward for such a conduct (in becoming fugitive from law).

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

Ahsan Ahmed Qureshi for Applicant.

Altaf Hussain Surchio, State Counsel.

Date of hearing: 25th November, 2011.

2012 Y L R 1085

[Sindh]

Before Shahid Anwar Bajwa, J

NAZIR AHMED and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.632, 709 and 732 of 2011, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---Benefit of doubt---Accused were alleged to have stopped the car of the complainant party and took away money, wrist watch, driving licence and National Identification Card (NIC)---Evidence against accused was recovery of driving licence, NIC and wrist watch from their pocket but it was difficult to believe that one would keep for four months driving licence and NIC in his pocket which have no value for him---Money allegedly taken away by accused had not been recovered and it had not been brought in evidence as to how they disposed of the same, which created doubt and any single benefit of doubt had to go in favour of the accused---Bail application of accused was allowed and they were released on bail.

Muhammad Yaseen and another v. The State 1995 PCr.LJ 711 and Kirar v. The State 2004 MLD 659 ref.

Qurban Ali Malano for Applicant (in Criminal Bail Application No.732 of 2011).

Zulfiqar Ali Sangi for Applicants (in Criminal Bail Application No.709 and 632 of 2011).

Shayamlal A.P.-G.

2012 Y L R 1089

[Sindh]

Before Shahid Anwar Bajwa, J

FAISAL JAFFERY, A.S.-I.---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.160 of 2011, decided on 9th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K---Penal Code (XLV of 1860), Ss.302/365/109/34---Qatl-e-amd, kidnapping or abduction with intent secretly and wrongfully to confine person--Application for quashing of order---Applicant/accused in application under S.561-A, Cr.P.C. had sought quashing of order passed by Judicial Magistrate, whereby the Magistrate had declined to dispose of F.I.R. in 'B' class---After lodging F.I.R., Police after investigation, submitted report under S.173, Cr.P.C. with recommendation that F.I.R. be disposed of in 'B' class---Judicial Magistrate declined to accept said recommendation and ordered that the case be registered, formalities be completed and thereafter same be sent to Sessions Court for trial---Said order of the Judicial Magistrate had been challenged through application---Ipse dixit of the Police was not binding on the Magistrate scrutinizing report under S.173, Cr.P.C.---Magistrate could agree or disagree, and even remit the case for further investigation---In the present case, certain allegation had been levelled in the F.I.R.---Medical evidence had indicated 10 injuries on the person of the deceased---Question was whether it was a case of custodial killing or even if it was not a case of custodial killing; whether in the facts and circumstances, use of force by Police was justified or was it excessive--All said facts could be gone into only after evidence was recorded by the Trial Court--Judicial Magistrate had given reasons in the impugned order---Counsel for applicant/accused was not justified to contend that order passed by Judicial Magistrate was not speaking order---Order passed by the Judicial Magistrate was not a judicial order, but was an administrative order---To expect from the order of Judicial Magistrate a brick by brick reasoning, would not be a fair and justifiable expectation---If an order passed by the Judicial Magistrate would seem to be reasonable and appropriate in the circumstances, High Court could not, and should not, apply to it the tests judicially laid down for scrutinizing a judicial verdict of a court below---After the order was passed by the Judicial Magistrate, challan had been submitted and the matter was pending before the Trial Court---If applicant felt that there was no possibility of his being convicted, he had full remedy of making an application under S.265-K, Cr.P.C. before the Trial Court, which would consider such application in the light of all the material available to it, would apply all the due tests of judicial scrutiny on evaluation and thereafter decide such an application in accordance with the law---Application under S.561-A, Cr.P.C. was dismissed by High Court.

Ch. Muhammad Yaqoob and others v. The State and others, 1992 SCMR 1983; Mst. Malka Jan v. Inspector-General of Police N.-W.F.P., Peshawar and 2 others 2010 PCr.LJ 320; Amir Ullah v. The State and 2 others 2004 PCr.LJ 821; Munshi Singh Gautam (D) and others v. State of M.P., AIR 2005 SC 402; Sube Singh v. State of Haryana and others AIR 2006 SC 1117; SUO MOTU CASE NO., 10 of 2011: In the matter of (Brutal Killing of a Youngman by Rangers), PLD 2011 SC 799 and Bahadur and another v. The State and another PLD 1985 SC 62 rel.

Khawaja Naveed Ahmed for Applicant.

Mehmood A. Qureshi for the Complainant.

Ms. Rahat Ahsan D.P.-G. for Respondents.

Date of hearing: 2nd November, 2011.

2012 Y L R 1099

[Sindh]

Before Syed Hasan Azhar Rizvi, J

RASHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1316 of 2011, heard on 13th December, 2011.

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

----S. 497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Promptly lodged F.I.R.---Recovery of robbed articles from accused---Accused along with his co-accused had allegedly intercepted the complainant at a bridge and by showing weapons snatched away his cell phone and cash but was apprehended by police officials who were on patrolling duty in the area---F.I.R. had been promptly lodged after an hour of the occurrence and accused was arrested at the spot and robbed property was recovered from his possession---Offence with which accused was charged did not fall within prohibitory clause of section 497 Cr.P.C., but such fact simply did not justify the grant of bail, as deeper appreciation of evidence of material available on record could not be done while deciding bail application---Prima facie case had been made out against accused for commission of the alleged offence and accused having failed to make out a case for further inquiry, his bail application was dismissed.

Naveed Ahmed v. The State 2007 YLR 114 ref.

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

----S. 497---Bail---Prohibitory clause of section 497 Cr.P.C---Scope---Any offence not falling under the prohibitory clause of section 497 Cr.P.C, would simply not justify the grant of relief of bail, as deeper appreciation of evidence of material available on record could not be done while deciding bail application.

Patras Piyara for Applicant.

Abdul Rehman Kolachi, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 13th December, 2011.

2012 Y L R 1104

[Sindh]

Before Syed Hasan Azhar Rizvi, J

AMEER HAYAT and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail No.1401 of 2011, decided on 16th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010), S.8(1)---Encroachment---Selling encroached land---Bail, grant of---Further inquiry---Accused were allegedly going to sell out government land, by making plots and boundary wall---Accused were charged under S. 8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010, which provided minimum punishment of one year because of which case of accused did not fall within the prohibitory clause of S. 497 Cr.P.C, and there was an unexplained delay of fifteen days in lodging of F.I.R.---Prosecution story could not be treated free from doubt and matter required further inquiry---Accused were released on bail accordingly.

Muhammad Amin and another v. The State Criminal Application No.1240 of 2011 and Muhammad Hasan and another v. The State Criminal Bail Application No.1307 of 2011 ref.

Shehzore and another v. The State 2006 YLR 3167 fol.

Qadir Khan for Applicants.

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

2012 Y L R 1107

[Sindh]

Before Syed Hasan Azhar Rizvi, J

LIAQUAT KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1220 of 2011, heard on 30th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Bail sought on grounds of statutory delay---Occurrence within court premises---Accused was arrested from premises of city court in presence of witnesses and firearm was also recovered from him---Name of accused was mentioned in the F.I.R. with specific role---Case diary sheets showed that delay in conclusion of trial occurred because either accused was not produced by jail authorities or the Presiding Officer was on leave or counsel for accused was called absent and requests for adjournment were made on his behalf---Delay was also occasioned by applications for transfer of case filed by complainant and pending bail applications of co-accused before the High Court and Supreme Court because of which police papers were not available in Trial Court with the prosecutor---Delay was not only attributable to the prosecution side but accused persons were also liable for the same and if delay on the part of the accused was omitted from the total period of trial, then the accused was not entitled for concession of bail on the ground of statutory delay---Role assigned to both the co-accused was different from the role of the accused as allegedly both co-accused only caught hold of the deceased while the accused fired upon the deceased which resulted in his death---Bail application of accused was dismissed, in circumstances.

Taj Muhammad and another v. The State 2011 PCr.LJ 1910 and Irfan Yaqoob v. The State SBLR 2011 Sindh 1205 distinguished.

Muhammad Ashraf Qazi for Applicant.

Shahid Ahmed Shaikh A.P.-G. for the State.

Date of hearing: 30th November, 2011.

2012 Y L R 1112

[Sindh]

Before Syed Hasan Azhar Rizvi, J

KASHMALY KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.1076 and 1151 of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery, using as genuine a forged document---Bail, refusal of---Sections 420 & 471, P.P.C. whereunder F.I.R. was lodged, were bailable, while S.468, P.P.C. was not bailable and did not come within the prohibitory clause of S.497, Cr.P.C.---Crimes, which though did not come within the definition of heinous, were increasing day by day and the innocent persons had been deprived from their valuables and accused, while taking shelter of minor technicalities/lacunae, made by Law Enforcing Agencies, get relief from the courts and could not be punished due to flaw in the investigation---Offences against accused, though did not fall within the prohibitory clause of S.497, Cr.P.C. but accused had deprived the complainant from his property---Accused in circumstances did not deserve any leniency and/or discretionary relief, in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170; Muhammad Azeem v. The State 2011 SCMR 1533; Saeed Ahmed v. The State 1996 SCMR 1132 and Ghulam Qasim alias Muhammad Qasim v. The State 1991 PCr.LJ 2418 distinguished.

Muhammad Hanif Qureshi for Applicant.

Gul Muhammad Hajano for Applicant.

Abrar Ali Khichi Addl. Prosecutor General Sindh for the State.

Date of hearing: 20th October, 2011.

2012 Y L R 1116

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD HUSSAIN---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No.142 of 2011, decided on 10th December, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd and attempt to commit qatl-e-amd---Compromise between the parties---Failure to deposit Diyat amount for minors---After submission of challan by the Police in the court, due to intervention of respectable elders of the family, a compromise was arrived at between the parties outside the court and applications under Ss.345(2) and 345(6), Cr.P.C. were moved by the parties before the court---Statement of the complainant and also of the widow of the deceased, to the effect that they had forgiven accused in the name of Almighty Allah, were recorded---Trial Court vide impugned order allowed application filed under S.345(2), Cr.P.C., subject to deposit of Diyat amount for the minors of the deceased and application under S.345(6), Cr.P.C. for acquittal of applicant/accused was kept pending for Diyat amount---Accused moved application for recalling said order, contending that widow of the deceased being the Wali, had waived the right of the minors; and that she was not interested to take the Diyat amount---Said application of accused was dismissed by the Trial Court---Only after 3 days from passing of impugned order, another application under S.345(4), Cr.P.C., was filed on behalf of the widow of the deceased to be appointed as guardian of the minors which showed the ulterior motive of accused/the applicant, as widow was compelled to waive her right of Diyat and thereafter she was made to move the application under S.345(4), Cr.P.C.---Applicant by taking shelter of law tried to obtain an order for waiving the right of the minors---Trial Court, had rightly kept the application under S.345(6), Cr.P.C. pending for acquittal of the applicant till payment of Diyat amount to the minors of the deceased---All said exercise was tainted with mala fide to deprive the minors from their legitimate right over the Diyat amount, for which they were entitled under the law as well as the Sharia---Impugned order did not call for any interference by High Court in revision.

Muhammad Arif v. The State 2001 PCr.LJ 1804; Allauddin v. The State 2001 MLD 1757 and Muhammad Hanif v. The State 1993 PCr.LJ 166 distinguished.

Naeem Akhtar Khan Tanoli for Applicant.

Abdullah Rajpur, Assistant Prosecutor General, Sindh for Respondents.

Date of hearing: 7th December, 2011.

2012 Y L R 1127

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABDUL KAREEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-950 of 2011, decided on 1st February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/353/399/402/440---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation to commit dacoity, assembling for purpose of committing dacoity, acts of terrorism---Bail , refusal of---Name of accused was mentioned in the F.I.R. and a weapon had also been recovered from him at the time of his arrest---Contents of F.I.R. clearly mentioned that accused was found at the place of incident duly armed with weapons and also fired upon the police party due to which one police official lost his life---Case of accused was different from that of his co-accused, who had already been granted pre-arrest bail by the High Court on the grounds that their names were not mentioned in the F.I.R. and they were only implicated by prosecution witnesses in their statements recorded under S. 161, Cr.P.C---Accused contended that he had been falsely implicated in the case at the instance of local political persons, but failed to point out the identity of any political person in the bail application---No ground for false implication or previous enmity had been shown by the accused--- No reasonable grounds existed to believe that the accused had not committed a non-bailable offence and his case was not one of further inquiry---Bail application of accused was dismissed.

Qurban Ali Malano for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

Date of hearing; 1st February, 2012.

2012 Y L R 1138

[Sindh]

Before Salman Hamid, J

LIAQAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1169 of 2011, decided on 1st December, 2011.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic---Bail, refusal of---Chemical report was in positive---Contention of accused that there was violation of S.103, Cr.P.C, was not tenable as in terms of Ss. 20, 21 and 25, Control of Narcotic Substances Act, 1997, S.103, Cr.P.C was not applicable in narcotics cases---Contention of accused that only 10 grams out of the 1050 grams allegedly recovered had been sent for chemical analysis was not of much significance as it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis---Two previous cases of similar nature were pending against the accused which showed that he was a chronic offender---Accused had been granted bail in both the said previous cases but had abused concession of bail by being found in alleged possession of narcotic again which resulted in the present F.I.R.---Bail application of accused was dismissed, in circumstances.

Ismail v. The State 2010 SCMR 27; Muhammad Noor and others v. The State 2010 SCMR 927 and Afzaal Ahmed v. The State 2003 SCMR 573 fol.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic---Bail---Sending a sample of one gram out of the recovered quantity of narcotic for chemical analysis---Effect---Sending a sample of one gram from the quantity of allegedly recovered narcotic was not fatal to the prosecution case and it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis.

Afzaal Ahmed v. The State 2003 SCMR 573 ref.

Mushtaq Ahmed Jadoon for Applicant.

Saleem Akhter, A.P.-G. for the State.

Date of hearing: 1st December, 2011.

2012 Y L R 1141

[Sindh]

Before Salman Hamid, J

AURANGZAIB IQBAL---Applicant

Versus

THE STATE---Respondent

Bail Application No.1300 of 2011, decided on 22nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.161, 165A/ 170/ 419/ 420/ 109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, abetment, personating a public servant, cheating by personation, cheating and dishonestly inducing delivery of property, common intention, criminal misconduct---Bail, refusal of---Accused (police official) had allegedly impersonated himself as an official of Federal Investigation Agency and in such disguise attempted to extort money from complainant's son---Trial Court had dismissed bail application of the accused---Validity---Accused in his bail application had not disputed or denied that he did not impersonate himself as an official of Federal Investigation Agency---Mobile phone and large amounts of cash were recovered from the possession of the accused, which fact was hard to imagine in view of the position of the accused in the police force---Accused was caught red-handed by the Federal Investigation Agency team, which was not denied by him except for the contention that he had been falsely implicated---Accused had been charged with S.5(2) of the Prevention of Corruption Act, 1947, which fell within the prohibitory clause of S. 497, Cr.P.C---Bail application of accused was refused, in circumstances.

PLD 1995 SC 34; PLD 2006 Kar. 165; PLD 1963 (W.P.) Lah. 279; PLD 1995 Kar. 531; 2001 PCr.LJ 1948; PLD 1996 Criminal Cases (Lahore) 374 and PLD 1996 Kar. 253 distinguished.

Mehmood ul Hasan for Applicant.

Qasim Ali Standing Counsel for the State.

Date of hearing: 22nd November, 2011.

2012 Y L R 1146

[Sindh]

Before Muhammad Tasnim, J

GUL REHMAN alias GUL MUSLIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.882 of 2011, decided on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/395/34---Robbery, dacoity, common intention---Bail, grant of---Further inquiry---Neither the name of any accused person was mentioned in the F.I.R., nor descriptions of any accused had been shown therein---Contents of F.I.R. revealed that security guards were blindfolded and did not know in which vehicle accused persons had come and committed the offence---Case of accused required further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, accordingly.

Muhammad Jawaid Alam for Applicant.

Muhammad Iqbal Awan, A.P.-G.

Date of hearing: 16th August, 2011.

2012 Y L R 1161

[Sindh]

Before Salman Hamid, J

SAUD HUSSAIN---Applicant

Versus

THE STATE---Respondent

Bail Application No.1431 of 2011, decided on 22nd December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Allegation against accused was that he picked up the complainant (oil massager) from a canteen and tried to kill him with his weapon, but the bullet missed the complainant and passed through the open window of the car---Validity---F.I.R. stated that accused took out his weapon and loaded it, which was only possible either if the vehicle was moving extremely slowly or if it was stationary, at that time the complainant could have conveniently escaped from the vehicle, but he did not---During the time the accused was loading his pistol, complainant could have gotten hold of him, which complainant did not do---Keeping in view the fact that complainant was sitting beside the accused, same could have very conveniently poked the weapon in the complainant's body without aiming and ensured that he did not miss, but allegedly accused did miss which prima facie showed that accused never attempted to kill the complainant---Record also revealed that accused himself handed over the licence for the weapon to the police---Such circumstances created reasonable doubt and made the case one of further inquiry---Prosecution story being full of doubts, accused was enlarged on bail, accordingly.

Abid Ali alias Ali v. The State 2011 SCMR 161; Sharif v. The State 2000 PCr.LJ 562 and Abdul Qadir Moti Wala v. The State 2000 PCr.LJ 1734 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Principles and Scope---Bail cannot be withheld as a punishment and it is not to be stretched in favour of the prosecution and if a case of further inquiry is made out, the applicant is entitled to bail.

Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

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

----Art. 38---Confession before police---Validity---Such confession was in-admissible in evidence and should not be given any weight.

Sharif v. The State 2000 PCr.LJ 562 rel.

Jamshed Malik and Syed Suleman Badshah for Applicant.

Shahid Ahmed Shaikh, A.P.-G. for the State.

Date of hearing: 22nd December, 2011.

2012 Y L R 1172

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

LIAQUAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-53 of 2011, decided on 1st February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/353/148/149--- Pakistan Arms Ordinance (XX of 1965), S. 13-D---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons, possession of illegal weapons, acts of terrorism---Bail, refusal of---Police encounter---Three witnesses (police officials) had clearly identified the accused armed with a weapon and he along with his co-accused was engaged in firing upon the police officials---During the encounter, three co-accused died and a police official was injured---Complainant (police official) had consumed numerous bullets from his weapon during the occurrence, and empties and a motorcycle was recovered from the spot---Specific role had been attributed to the accused and nothing on record showed that he had been falsely implicated by the police---Contents of F.I.R. revealed that police officials in uniform warned the accused and his co-accused to surrender their weapons, but they instead of surrendering, started firing at the police officials with the intention to commit their murder, which involved serious coercion, intimidation and violence against public servants in order to prevent them from discharging their lawful duties---Availability of private or independent witness could not be expected during a police encounter as nobody from the public could be expected to put his life in danger by spectating a police encounter---Police officials were competent witnesses, like any other independent witnesses and their testimony could not be discarded merely for the reason that they were police employees---Bail application of accused was dismissed, in circumstances.

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

---Ss. 324/353/148/149---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Anti-Terrorism Act (XXVII of 1997), S. 7---Evidence of police officials---Competence---Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees.

Zulfiqar Ali Khan Jalbani for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

Date of hearing: 1st February, 2012.

2012 Y L R 1191

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

MUHAMMAD SIDDIQUE and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.869 and 870 and M.A. No.7174 of 2011, decided on 22nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/ 341/ 353/ 337-A(i)/ 435/ 440/ 147/ 148/149/109---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Attempt to commit qatl-e-amd, wrongful restraint, assault or criminal force to deter public servant from discharge of his duty, shajjah-i-khafifah, mischief by fire or explosive substance with intent to cause damage, mischief committed after preparation made for causing death or hurt, rioting, rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, grant of---Further inquiry---Allegation against accused persons of forming a mob and resorting to vandalism while protesting for the release of some criminals---Contentions of accused persons were that other accused persons nominated in a different F.I.R., which emanated from the present F.I.R., had been released on bail; that neither any specific role was assigned to them nor any weapons had been recovered from them, and that prosecution had no medical evidence to connect the accused persons with the crime---Validity---Allegations against accused persons were general in nature and no recovery of weapons had been made from them---No medical report had come on record---Prosecution did not contest the grounds raised by the accused in the present bail application---Case under section 497(2), Cr.P.C. had been made out and accused persons were enlarged on bail.

Amjad Ali for Applicants.

Zafar Ahmed Khan, Addl. Prosecutor-General for the State.

2012 Y L R 1199

[Sindh]

Before Shahid Anwar Bajwa and Ahmed Ali M. Shaikh, JJ

GHULAM SHABBIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.D-856 and D-857 of 2011, decided on 16th February, 2012.

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

----S. 497---Police Rules, 1934, R. 26.32---Qanun-e-Shahadat (10 of 1984), Art. 22---Penal Code (XLV of 1860), Ss. 302/324/ 353/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S 13(e)---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons, unlawful assembly, acts of terrorism, unlicensed possession of arms---Bail, grant of---Irregularities in conducting identification parade---Accused had been kept at police station for five days where the complainant (police official) and his witnesses were posted---Possibility of the complainant and the witnesses having seen the accused at the police station could not be ruled out---Statement on record did not mention as to how the witnesses and the accused reached the court---Memo of identification parade indicated that when accused was produced with a muffled face, the witnesses were directed to sit in the office, and the accused disclosed that the witnesses had seen him at the police station but the witnesses denied the same---Such denial appeared to have been made in the presence of the accused and even if his face was muffled, his clothes and shoes etc. must have been seen by the witnesses, which created doubt---Identification parade was conducted after a delay of five days for which the prosecution provided no explanation---No description of any of the dummies used during the identification parade had been provided---Conviction could not be based on the basis of perfunctory and hollow identification parade--Accused was admitted to bail, in circum-stances.

Muhammad Ali v. The State, 2002 PCr.LJ 1120 and Shafique Ahmed and 4 others v. The State 2002 PCr.LJ 518 rel.

Muhammad Ayaz and others v. The State 2011 SCMR 769; Amanullah alias Mithu v. The State 1998 SCMR 354; Muhammad Aslam v. The State 2010 PCr.LJ 914 and Muhammad Sadiq v. The State NLR 1995 Cr.LJ 621 distinguished.

(b) Police Rules, 1934---

----R. 26.32---Qanun-e-Shahadat (10 of 1984), Art. 22---Identification parade---Irregularities in conducting identification parade---Effect---Conviction could not be based on the basis of perfunctory and hollow identification parade.

Ghulam Murtaza Korai for Applicant.

Sardar Ali Shah, A.P.-G. for Respondent.

2012 Y L R 1206

[Sindh]

Before Muhammad Tasnim, J

Syed ALI QASIM GILLANI---Applicant

Versus

THE STATE---Respondent

Bail Application No.834 of 2011, decided on 11th August, 2011.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15/22---Bail, grant of---Further inquiry---Raw heroin weighing 214.5 Kilograms had been recovered from a consignment of cement exported in five containers---Deeper appreciation of record was not permissible at bail stage and prima facie connection of accused with the commission of offence had to be found through tentative assessment---No direct allegation was made against the accused in the F.I.R., statements recorded under S.161, Cr.P.C. or the challan---No recovery whatsoever had been made from the accused---Heroin, admittedly, was not recovered from the three containers exported through the accused---Report of Chemical Examiner was not available with the prosecution to confirm that the recovered substance was heroin---No seizure report had been brought on record---Prosecution had failed to successfully explain the delay of three months in lodging the F.I.R.---Out of nine accused persons five accused were absconders and three accused had been admitted to bail by Trial Court---Question as to whether the present accused had connived with other co-accused in exporting heroin along with cement to other country required evidence---Case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail in circum-stances.

Muhammad Ashiq v. The State and another 2001 YLR 569; Syed Abdul Qayyum v. The State 2000 MLD 842; Hadi Bux alias Hadoo v. The State 2000 PCr.LJ 714; Taj Akbar v. The State 2011 PCr.LJ 90; Rafaqat Ahmed and others v. The State and others 1999 YLR 2627; Ghulam Hussain and others v. The State 2011 PCr.LJ 72; Gul Hassan Dero v. The State 2000 PCr.LJ 657; The State/Anti-Narcotic v. Rafiq Ahmad Channa 2010 SCMR 580; Muhammad Aslam v. The State 2011 SCMR 820; The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2011 SCMR 14; Muhammad Ullah v. The State 2009 SCMR 954; Gul Zaman v. The State 1999 SCMR 1271; Mir Iftikhar Ahmed v. The State (Criminal Bail Application No.184 of 2011); Tariq Bashir v. The State PLD 1995 SC 34; Amir v. The State PLD 1972 SC 277; Khalid Saigol v. State PLD 1962 SC 495; Nadra v. Jamiat Khan and others PLD 1968 SC 310; Muhammad Ayub v. Muhammad Yaqub and The State PLD 1996 SC 1003 and State of Rajasthan v. Balachand AIR 1977 SC 2447 ref.

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

----S. 497---Bail---Guidelines for courts for disposal of bail matters, stated.

Gul Zaman v. The State 1999 SCMR 1271 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Benefit of doubt, extension of---For purposes of bail, law is not to be stretched in favour of prosecution and the benefit of doubt, if any, must go the accused.

Amir v. The State PLD 1972 SC 277 ref.

(d) Criminal trial---

----Benefit of doubt---Principle of---If any reasonable doubt is created in the case of the prosecution, then its benefit is to be extended to the accused party.

Muhammad Aslam v. The State 2011 SCMR 820 ref.

Nafees Siddiqui A. Siddiqi for applicant, along with Haroon Shah and Waleed Khanzada.

Syed Qamarul Hassan, Standing Counsel for the State, along with comp-lainant Saud Hassan Khan, Intelligence Officer of Customs Intelligence, Karachi, and I.O. Qassim Ali Alvi, Senior Intelligence Officer, Customs Intelligence, Karachi.

2012 Y L R 1228

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD NAEEM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.726 and M.A. No.7810 of 2011, decided on 26th August, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 489-B/489-C/34---Using as genuine, forged or counterfeit currency-notes or bank-notes, possession of forged or counterfeit currency-notes or bank-notes---Bail, grant of---Further inquiry---Allegation of selling and distributing fake currency notes---Person who had allegedly purchased the counterfeit currency from the accused was neither associated nor cited as prosecution witness or made mashir of arrest or recovery---F.I.R. also revealed the use of the word buyers, but name of such persons had not been disclosed therein---No private witness had been associated at the time of arrest or recovery, even though entire action was taken on basis of spy information and the place where occurrence took place was a thickly-populated area---Complainant of the case was also the Investigating Officer, and in such circumstances benefit had to be extended to the accused for enlarging them on bail---Requirements of S. 489-B, P.P.C were not fulfilled, and in circumstances, it could at best have been a case of S. 489-C, P.P.C. which did not fall within the prohibitory clause of S.497, Cr.P.C---Accused had made out a case of further inquiry in terms of S.497(2), Cr.P.C---Accused were admitted to bail.

Muhammad Ameen v. The State 1990 PCr.LJ 84; Muhammad Sajjad v. The State 1996 PCr.LJ 815; Muhammad Afzal v. The State 2004 YLR 2168 and Ghulam Dastagir v. The State 2005 PCr.LJ 405 rel.

State v. Bashir PLD 1997 SC 408 ref.

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

----S. 103---Penal Code (XLV of 1860), Ss.489-B/489-C/34---Search to be made in presence of witness---Scope---Requirement of S.103, Cr.P.C., namely that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public.

State v. Bashir PLD 1997 SC 408 quoted.

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

----S. 103---Penal Code (XLV of 1860), Ss.489-B/489-C/34---Search to be made in presence of witness---Necessary quail-fications of search witness---Scope---Witnesses of search should be respectable and of the locality and occupant of premises should also be present at the time of search, which are valuable safeguards---To be 'respectable' and 'of the locality' are necessary qualifications of search witnesses---Court should always be vigilant to know as to why the witness had trudged all the way from his place to place of search and why police could not have a search witness from the locality.

Muhammad Ameen v. The State 1990 PCr.LJ 84 quoted.

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

----S. 489-B---Using as genuine, forged or counterfeit currency-notes or bank-notes---Scope---Possession simpliciter of a counterfeit currency note does not constitute an offence under S.489-B, P.P.C., but said section deals with the sale, purchase, receipt or otherwise trafficking of a counterfeit coin/ currency note and the use of a counterfeit currency note as genuine.

Muhammad Sajjad v. The State 1996) PCr.LJ 815 quoted.

M. Arshad Mughal for Applicants.

Sadaqat Khan, Standing Counsel.

Date of hearing: 25th August, 2011.

2012 Y L R 1237

[Sindh]

Before Muhammad Tasnim, J

NAEEM AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1040 of 2011, decided on 29th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession and trafficking of narcotic---Bail, grant of---Further inquiry---Allegation against accused (customs official) of trying to smuggle narcotic through airport in connivance with co-accused passenger---Co-accused was intercepted at the departure lounge of the airport, and two mashirnamas were prepared with a gap of nine hours between them, but name of accused had not been mentioned in either of these mashirnamas---Name of accused was mentioned for the first time in the F.I.R., wherein accused had been implicated on the statement of the co-accused---No recovery was effected from the accused and prosecution had admitted that there was no material to create any relationship between the accused and his co-accused---No allegation was made regarding the accused helping the co-accused during his passage through the departure lounge of the airport---False implication of accused could not be ruled out, which required further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail.

Aamir Mansoob Qureshi for Applicant.

Mrs. Sheeraz Iqbal, Standing Counsel along with S.P.O/I.O. S. Azhar Mehdi.

Date of hearing: 29th September, 2011.

2012 Y L R 1245

[Sindh]

Before Salman Hamid, J

ABDUL LATEEF---Applicant

Versus

ASHFAQ and another---Respondents

Criminal Miscellaneous Application No.349 and M.A. No.8966 of 2011, decided on 2nd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5) & 561-A---Penal Code (XLV of 1860), Ss. 365-B/34-Kidnapping, abducting or inducing woman to compel for marriage etc., common intention---Application for cancellation of bail---Complainant had alleged that the accused abducted his daughter and married her---Daughter of complainant at first implicated six persons for the offence including the accused, but later in her statement recorded under S.164, Cr.P.C, she implicated only the accused and his parents---Inconsistencies existed in the F.I.R. and the statements recorded by the complainant's daughter under Ss.161 & 164, Cr.P.C---Fact that complainant's daughter got married with the accused after executing a freewill affidavit before the court, it was difficult to believe the contention of the complainant that his daughter executed the freewill affidavit in a state of intoxication---Nothing was brought on record to substantiate the allegation of intimidation by the accused---Bail granted to accused required no interference, therefore application for cancellation of bail was dismissed.

Nazar Masih v. Yaqoob Masih and others 2002 PCr.LJ 662 distinguished.

Aamir Jamil for Applicant.

2012 Y L R 1251

[Sindh]

Before Muhammad Ali Mazhar, J

PANDHI KHAN---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1086 of 2011, decided on 23rd February, 2012.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Possession of narcotic, possession of illegal weapons---Bail, refusal of---Report of chemical examiner was positive---Contention of accused that police officials tried to snatch his foreign made weapons and foisted upon him 2 kgs of narcotic, which was lying in the police station, was not believable---Accused had contended that he held licences for the weapons recovered from him, but failed to mention that any such licence was shown by him to the police---Section 25 of the Control of Narcotic Substances, 1997, had excluded the applicability of S.103,Cr.P.C, because of which evidence of police officials was as good as the evidence of any other independent witness---Reasonable grounds existed for believing that accused was connected with the commission of the offence, as a result of which his bail application was dismissed.

Tariq Pervez v. The State 1995 SCMR 1345 distinguished.

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

---S. 497---Bail---Benefit of doubt---Scope---For giving benefit of doubt to an accused it was not necessary that there should be many circumstances creating doubts---Where a simple circumstance created reasonable doubt in a prudent mind about the guilt of the accused then he would be entitled to such benefit not as a matter of grace and concession but as matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Ghulam Shabir Dayo for Applicant.

Sardar Ali Shah Rizvi A.P.-G. for the State.

Date of hearing: 9th February, 2012.

2012 Y L R 1260

[Sindh]

Before Shahid Anwar Bajwa, J

RIAZ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-590 and M.A. 3020 of 2011, decided on 23rd January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365, 324, 353 & 368---Kidnapping or abducting with intent secretly and wrongfully to confine person, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharging his duty, wrongfully concealing or keeping in confinement, kidnapped or abducted person---Bail, grant of---Further inquiry---Accused had been identified by the abductee and co-accused, but he was still entitled to bail because, firstly, it was claimed that encounter took place for twenty five minutes but neither anyone was injured nor any bullet even grazed the police vehicles present at the spot; secondly Ss. 365, 368 & 353 P.P.C with which accused was charged , did not fall within the prohibitory degree and with respect to charge of S. 324 P.P.C, no one had been injured, therefore, it was a subject of further inquiry whether there was any intention to commit qatl-e-amd or not---Accused was allowed bail accordingly.

Gulom Khan v. The State 2002 MLD 739 ref.

Muhammad Ali Ruk for Applicant.

Syed Sardar Ali Rizvi, A.P.-G. for the State.

2012 Y L R 1268

[Sindh]

Before Salman Hamid, J

MICHAEL and another---Applicants

Versus

THE STATE---Respondent

Bail Application No.1460 of 2011, decided on 23rd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/34---Police Rules, 1934, Ch. 25---Robbery, common intention, investigation---Bail, grant of---Further inquiry---Accused persons were apprehended in a very short span of time from an altogether different and faraway place than from the place of incident---Question as to how police promptly went to get hold of the accused persons and found from their possession all the snatched articles, was not clear---Police, in order to show their efficiency seemed to have picked up random persons from a random place and made them scapegoats in the F.I.R.---No independent musheer had been taken, which was a violation of S. 103, Cr.P.C---Prosecution had admitted that there was violation of law when it came to the sealing of items recovered from the place where accused persons were arrested and their de-sealing at the police station---Possibility of foisting such articles on the accused persons could not be ruled out---Identification parade had not been conducted before the Magistrate and instead same was conducted in the police station, which was of no significance and created doubt---Case of accused required further probe and accordingly, they were enlarged on bail.

Khawaja Muhammad Azeem for Applicants.

Abdul Rehman Kolachi A.P.-G. for the State.

Date of hearing: 23rd December, 2011.

2012 Y L R 1271

[Sindh]

Before Arshad Noor Khan, J

AMEER BUKHSH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-524 and M.A. 2177 of 2008, decided on 1st September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, dishonestly receiving property stolen in the commission of a dacoity, haraabah---Bail, grant of---Further inquiry---Incident was admittedly committed by some unknown persons but name of accused had been mentioned in the F.I.R., creating the presumption that accused was known to the complainant party prior to the registration of the case, and complainant had some motive against him on account of which he was specifically named in the F.I.R.---At the time of recovery of snatched tractor, accused was allegedly sitting on it, but accused could not have been using the tractor in the same vicinity from where it was snatched---Apart from recovery of tractor, no other person responsible as alleged in the F.I.R. were placed in the F.I.R. under the complaint---Case of further inquiry had been made out to enlarge the accused on bail---Bail application of accused was allowed and he was released on bail.

Muhammad Sulleman Dahri for Applicant.

Mukhtiar Ahmed Khanzada for the State.

2012 Y L R 1291

[Sindh]

Before Salman Hamid, J

GHULAM MUHAMAMD---Appellant

Versus

Mrs. MUSTAFA KAZMIE---Respondent

First Rent Appeal No.41 and C.M.A. No.4914 of 2010, decided on 23rd November, 2011.

Cantonments Rent Restriction Act (XI of 1963)---

----Ss.17 & 24---Eviction of tenant on ground of default in payment of rent---Tenant (appellant) challenged order of Rent Controller whereby his eviction from the premises was ordered for failure to comply with the order to deposit the monthly rent---Validity---Order of the Rent Controller was violated and rent was deposited after the due date set by Rent Controller---Such blatant violation came within the meaning of wilful default and could not be treated as a technical default as claimed by the tenant---Default had been amply proved by the landlord and even the tenant himself by the production of receipts that were on record---High Court while dismissing the tenant's appeal, directed the tenant to hand over possession of the premises to the landlord within a period of 45 days.

Sohail Muzaffar for Appellant.

Muhammad Ameen for Respondent.

Date of hearing: 23rd November, 2011.

2012 Y L R 1294

[Sindh]

Before Salman Hamid, J

Syed QASIM HASSAN---Applicant

Versus

Syed MEHDI HASSAN and another---Respondents

Civil Revision Application No.215 C.M.As. Nos. 5336, 4997 and 4998 of 2011, decided on 17th November, 2011.

Limitation Act (IX of 1908)---

----S. 5---Extention of period---Trial Court, despite legal objection of defendant on limitation of the plaintiff's suit and plaintiff's application under S. 5 of the Limitation Act, 1908, for condonation of delay; did not frame the issue of limitation---Suit of plaintiff was subsequently decreed by Trial Court, and Appellate Court found that the issue of limitation was crucial and framed said issue of limitation; and remanded the case to the Trial Court---Validity---Patent wrong was found by the Appellate Court which went to the root of the case, and that patent wrong was the issue of limitation---Appellate Court rightly framed the issue of limitation for decision afresh and there was no misreading or non-reading of fact and evidence---Revision was dismissed.

Syed Muhammad Akbar for Applicant.

Date of hearing: 17th November, 2011.

2012 Y L R 1302

[Sindh]

Before Shahid Anwar Bajwa, J

NAZEER and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.51 of 2012, decided on 20th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.458/395/397/337-A(i)/337-F(i)--- Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, dacoity, robbery or dacoity, with attempt to cause death or grievous hurt, shajjah-i-khafifah, ghayr jaifah damiyah---Bail, grant of---F.I.R. was registered two days and eighteen hours after the occurrence and only explanation for such delay was that the complainant went to the hospital for urgent treatment---Injuries to complainant were classified as shajjah-i-khafifah and ghayr-jaifah damiyah, which did not appear to be sufficient reason for the delay in lodging the F.I.R., when the police station was situated at a distance of two furlongs from the place of incident---No explanation was provided as to why one of the prosecution witnesses, who was also the neighbour of the complainant, recorded his statement twenty days after lodging of the FIR, and why it took a delay of seven days to record the statement of the other prosecution witness---Bail application of accused persons was allowed and they were admitted to bail.

Zulfiqar Ali Sangi for Applicants.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

2012 Y L R 1306

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1169 of 2010, decided on 20th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/115/504/34---Qatl-e-amd, abetment, intentional insult with intent to provoke breach of the peace, common intention---Bail, grant of---Further inquiry---Contention of accused that post-mortem report mentioned blackening around each entry wound, suggesting that shot had been fired from close range, but F.I.R. did not mention whether shot was fired from close range, and that mashirnama of place of incident indicated that occurrence took place at a distance of three furlongs from the house of the accused, whereas F.I.R. mentioned that it was near his house---Validity---Contentions raised by accused were not relevant at bail stage as they needed deeper appreciation of evidence, which exercise could not be undertaken at bail stage---F.I.R. revealed that injury was on the back of the deceased, whereas postmortem report stated it to be on the front, but such discrepancy was immaterial as in any case an injury had been caused to the deceased---Only one empty was recovered from the place of incident, but according to the F.I.R. three persons were alleged to have fired at the deceased, therefore, it was a question of further inquiry as to how many persons fired and who actually fired the fatal shot---Bail application of accused was allowed and he was admitted to bail.

Sardar Akbar F. Ujjan for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

2012 Y L R 1314

[Sindh]

Before Salman Hamid, J

JAVED IQBAL---Applicant

Versus

THE STATE---Respondent

Bail Application No.1364 of 2011, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.395/34---Dacoity, common intention---Bail, refusal of---Sister of complainant being a natural witness of the incident had correctly identified the accused during the identification parade---No evidence of enmity, grudge or falsity in implicating the accused had been brought on record---Stolen/robbed mobile phone had also been recovered from the accused---Accused had been charged with S. 395, P.P.C, which fell within the prohibitory clause of S.497, Cr.P.C---Sufficient material was available against the accused to connect him with the offences for which he was charged---Bail application of accused was dismissed.

S. Samiullah Shah for Applicant.

Muntazir Ali Mehdi, A.P.-G. for Respondents.

Date of hearing: 19th December, 2011.

2012 Y L R 1316

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

BACHA MIR and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.72 and Special Criminal Appeal No.78 of 2010, decided on 20th January, 2012.

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

----Ss. 6, 8, 9(c) & 25---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Plea of counsel for accused was that no private Mashir or passenger from the Bus in question was associated or made witness---Provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly provided that for the purposes of search and arrest in the narcotic cases, the provisions of S.103, Cr.P.C. was not applicable---Even otherwise, Police employees were the competent witnesses like any other independent witness; and their testimony could not be discarded merely on the ground that they were Police employees---Statements of prosecution witnesses remained constant on all material particulars, despite lengthy cross-examination to which they were subjected---Nothing came out from the defence witness which might help accused---Accused was driver of the bus in question, while co-accused was its cleaner and charas was also recovered from the secret cavities of the bus---No doubt existed regarding the conscious possession and knowledge of contraband in the case---According to prosecution story, 110 Kg slabs of one Kg, were recovered from the secret cavities, and each slab of one Kg, was separated from each bag for sending to the Chemical Examiner, which had shown that only six Kg charas was sent for chemical examination---Report of Chemical Examiner, though was positive, but according to description of articles contained in parcel, six printed plastic Pani Packets, each containing one Kg black brown colour slab wrapped in plastic Pani was sent---Undoubtedly only six slabs of charas of one Kg each out of 110 slabs were sent for chemical examination and it was not ascertained that recovery of remaining slabs were of charas or some other commodity---Conviction of accused did not call for any interference, but nothing was brought on record by the prosecution that accused were previously convicted or found previously involved in any narcotic cases---Life imprisonment to both the accused was reduced to 8 years, without any modification into quantum of fine.

Nek Muhammad v. The State PLD 1995 SC 516 and Zahoor Ahmad Awan v. The State 1997 SCMR 543 distinguished.

Niaz-ud-din v. The State 2007 SCMR 206; Abdul Rehman v. The State 2011 SCMR 965 and Saeed Khan and another v. The State Criminal Jail Appeal No.D-75 of 2010 ref.

2008 SCMR 1254; Muhammad Hashim v. State PLJ 2004 SC 883; Ghulam Murtaza v. State PLD 2009 Lah. 362 and 2011 SCMR 965 rel.

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

----S. 29---Presumption from possession of illicit articles---Primary duty of the prosecution was to prove the case against accused beyond reasonable doubt, but after discharging its burden, if accused would take plea in defence, it was statutory burden upon the accused under S.29 of the Control of Narcotic Substances Act, 1997 to discharge the same through cogent evidence---Prosecution was supposed to establish that accused had some direct relationship with the narcotic drugs, or had otherwise dealt with the same---If the prosecution proved the detention of the article or physical custody of it, then the burden of proving that accused was not knowingly in possession of the articles was upon him---Practical difficulty of the prosecution to prove something within the exclusive knowledge of accused must have made the legislature think that if the onus was placed on the prosecution, the object of the said Act would be frustrated---By virtue of S.29 of Control of Narcotic Substances Act, 1997, prosecution had only to show by evidence that accused had dealt with the narcotic substances or had physical custody of it, or directly concerned with it, unless accused proved by preponderance of probability that he did not knowingly or consciously possessed the article---Without such proof, accused would be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.

Muhammad Noor v. State 2010 SCMR 927 and Inder Sain v. State Punjab AIR 1973 SC 2309 rel.

Abdul Baqi Jan for Appellants with Appellants/respondent in jail custody.

Naimatullah Bughio for the State.

Date of hearing: 20th October, 2011.

2012 Y L R 1336

[Sindh]

Before Salman Hamid, J

HAYAT GHANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1158 of 2011, decided on 9th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 147/ 148/ 149--- Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---All accused persons had formed an unlawful assembly and fired indiscriminately while armed with weapons, which resulted in the death of the deceased and injuries were caused to four persons---Weapons were recovered from the possession of the accused which was not disputed or denied by him except for the contention that recovery had not been made in accordance with the law---Report of the Forensic Science Laboratory, revealed that empties recovered from the possession of the accused had been fired from the weapons recovered from his possession---Sufficient material was available with the prosecution to connect him with the offence for which he was charged---Bail application of accused was dismissed, accordingly.

Ahmed Hassan Rana for Applicant.

M. Iqbal Awan, A.P.-G. for the State.

Altaf Hussain Khoso for the Complainant.

Date of hearing: 9th December, 2011.

2012 Y L R 1340

[Sindh]

Before Salman Hamid, J

ABDUL HAFEEZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1329 of 2011, decided on 28th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380/ 457/ 436/ 34---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, mischief by fire or explosive substance with intent to destroy house, common intention---Bail, grant of---Further inquiry---Two eye-witnesses of the incident were not shown in the challan and they had also not deposed or corroborated the allegations, as mentioned in the F.I.R.---F.I.R. was silent with regard to the allegations of taking away entire house hold items and it was also not clear as to how the said items were shifted from the house to another place---No recovery of any item had been made from the accused---Record revealed that an F.I.R. had been lodged in the past in which complainant of present F.I.R. was shown as an accused and present accused was one of the witnesses of that F.I.R.---Was yet to come on record as to what happened with the large number of stolen articles/ goods---Case of further inquiry was made out in terms of S.497(2), Cr.P.C.---Accused was admitted to bail, accordingly.

Ghulam Mustafa Memon for Applicant.

Abdul Rehman Kolachi, A.P.-G. for the State.

S. Ahmed Ali Shah for the Complainant.

Date of hearing: 28th November, 2011.

2012 Y L R 1344

[Sindh]

Before Salman Hamid, J

AKMAL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1044, and M.A. 8204 of 2011, decided on 24th November, 2011.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Qatl-e-amd, common intention possession of illegal weapon---Bail, grant of---Further inquiry---Ballistic report showed that the two empties allegedly recovered were released from the weapon of the accused---Weapon recovered from the accused was licensed and case under S. 13-D of West Pakistan Arms Ordinance, 1965 was pending against him for which F.I.R. had been registered---Mere recovery of motor cycle from accused, which was allegedly used for the commission of the offence, was not enough to show that the accused was present at the time of the incident and that he killed the deceased---Case of accused required further inquiry in terms of S.497(2), Cr.P.C--Accused was enlarged on bail, accordingly.

Ahmed Nawaz and Zahid Hussain Shah for Applicant.

Saleem Akhtar Addl. P.G. for the State.

Date of hearing: 24th November, 2011.

2012 Y L R 1353

[Sindh]

Before Salman Hamid, J

ATTA MUHAMMAD---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1030 and M.A. 8151 of 2011, decided on 23rd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/114/504/147/148/149---Qatl-e-amd, abettor present when offence is committed, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Dispute over watercourse---Case of cross-version F.I.Rs.---Medical report of deceased revealed that blows administered by the accused caused lacerated wound on the deceased's head, exposing left posterior of his head, which caused a haemorrhage and resultantly deceased died---Accused was attributed with the direct cause of deceased's death, therefore, he failed to make out a case for bail---Accused was denied bail, in circumstances.

Abdul Shakoor A. Abbasi for Applicant.

Khadim Hussain, A.P.-G. for the State.

Date of hearing: 23rd November, 2011.

2012 Y L R 1365

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD AZAM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-970 and M.A. 6046 of 2011, decided on 23d January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997) S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Quantity of narcotic recovered from accused was allegedly 1100 grams, which was border line quantity---Narcotic was recovered from accused while he was walking on the road and there was no evidence that he was either buying or selling the narcotic and police reached him just by chance----Bail application of accused was allowed in circumstances and he was released on bail.

Gul Hassan Dero v. The Stat 2000 PCr.LJ 657; Gul Said v. The State 2002 PCr.LJ 1680 and Rana Waris Ali v. The State 2006 PCr.LJ 1745 ref.

Sheering Muhammad v. The State 2006 PCr.LJ 726 ref.

Abdul Haq Odho for Applicant.

Syed Sardar Ali Rizvi, A.P.-G. for Respondent.

2012 Y L R 1372

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

SAEED KHAN and another---Appellants

versus

THE STATE---Respondent

Criminal Jail Appeal No.D-75 of 2010, decided on 4th October, 2011.

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

----Ss. 9(c) & 29---Possessing and trafficking the narcotic---Appreciation of evidence---Sentence, reduction in---Two hundred and forty packets of charas, each weighing one Kg of charas were recovered from the secret cavities of truck in question---Said packets were then put in plastic bags in such a way that there were forty packets in each plastic bag; and from each plastic bag, one packet was separated and sealed and sent for chemical examination---Six Kgs of charas was sent for examination---No evidence whatsoever was available that the remaining quantity was also charas---Burden of proof, in circumstances, was on the prosecution---Evidence produced thus showed that prosecution could prove six Kgs. of charas and nothing more---No discrepancy was found in the number of samples received or the weight---Section 29 of Control of Narcotic Substances Act, 1997, created presumption, which presumption could be rebutted by satisfactorily explaining it away---No such explanation was given by accused, the driver, as to whom did the vehicle in question belong; and how did he come about it---Quantity proved to have been recovered from accused being six Kgs. with additional mitigating factor regarding existence of secret cavity, ends of justice would be served if while conviction of accused was maintained, the punishment was modified from life to imprisonment for eight years---Sentence of fine, was maintained and benefit of S.382-B, Cr.P.C. was also given to accused---Prosecution had failed to prove that co-accused was in any way in possession, actual or constructive of the narcotic substance or had any link with the vehicle---Co-accused was acquitted of the charge, and was ordered to be released, in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856; Ismail and another v. The State 2004 YLR 894; Zareef Khan v. The State 2005 MLD 501; Ghulam Murtaza and another v. The State PLD 2009 SC 362 and Zahoor Ahmed Awan v. The State 1997 SCMR 543 rel.

Ali Muhammad and another v. The State 2003 SCMR 54 disgintuished.

Gul Badshah v. The State 2011 SMCR 984 and Surraya Bibi v. The State 2008 SCMR 825 ref.

Abdul Baqi Jan Kakar for Appellants.

Zulfiqar Ali Jatoi D.P.-G. for the State.

Date of hearing: 7th September, 2011.

2012 Y L R 1383

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

SHEROO and others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application Nos.D-873 and D-891 of 2011, decided on 8th February, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 224, 225, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, resistance or obstruction by a person to his lawful apprehension, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Bail, grant of---Further inquiry---Benefit of doubt---Complainant in the F.I.R. had mentioned names of 25 persons including accused with their parentage and even with the names of some accused, complainant had also mentioned their caste---Common prudence did not accept that in the case of encounter in which firing was alleged from both sides, names of 25 persons along with their parentage, caste and kind of weapons could be memorized by a person and mentioned it in the F.I.R. without proper consultation and deliberation---No specific or exact allegation had been made against accused in the F.I.R. except that he along with other 24 accused persons came to the rescue of co-accused---Even allegation for causing hatchet and lathi blows was against other accused persons and not against accused---Vague allegation that armed persons made straight fires upon Police party was mentioned in the F.I.R. which was a general allegation in which no role of the accused could be assumed warranting him guilty for rejection of bail---Both co-accused were found empty-handed while sitting in the otaq and no allegation had been levelled against them which could suffice to hold that they were guilty of causing any lathi or hatchet blows or fire arm injury to any Police Official---Names of persons who had caused injuries to Police Official were mentioned in the F.I.R., but no injury had been caused by the co-accused---Offences with which co-accused were charged, were bailable---No reasonable grounds existed to hold that co-accused had committed any offence under S.324, P.P.C.---No definite conclusion could be arrived at bail stage, whether co-accused were vicariously liable or not---Question of common intention was to be decided by the Trial Court for which deeper appreciation of evidence was required---Even at the stage of bail, benefit of doubt could be extended to accused---Case of co-accused fell within the phrase of further inquiry and reasonable grounds were available to believe that co-accused were not guilty of offence punishable with death or imprisonment for life or imprisonment for ten years---Accused were granted bail, in circumstances.

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

----S. 497(2)---Bail, grant of---Essential pre requisite for grant of bail by virtue of subsection (2) of S.497, Cr.P.C. was that court must be satisfied on the basis of opinion expressed by Police; or the material placed before it that reasonable grounds were available to believe that accused was not guilty of offence punishable with death, imprisonment for life or imprisonment for ten years.

Mushtaque Ahmed Shahani for Applicant (in Criminal Bail Application No.D-873 of 2011).

Qurban Ali Malano for Applicants (in Criminal Bail Application No.D-891 of 2011).

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

Date of hearing: 8th February, 2012.

2012 Y L R 1391

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHAMMAD IBRAHIM TONIO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-708 of 2011, decided on 24th January, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-A, 302, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction for extorting property, valuable security, qatl-e-amd rioting armed with deadly weapons, unlawful assembly, act of terrorism---Bail, grant of---Further inquiry---F.I.R. was lodged with unexplained delay of 35 days---Mere delay in lodging of the F.I.R., though was not only sufficient criteria for enlarging the person on bail, but while lodging the F.I.R. with an inordinate delay, there must be some explanation in the F.I.R. in that respect, which lacked in the present case---Twelve names with parentage, were mentioned in the F.I.R., besides four unidentified accused with Kalashnikovs which had created doubt as to how the complainant in the night time merely with the support of headlight of vehicle, not only seen and identified 12 persons and also mentioned their parentage along with weapon---No specific allegation was mentioned against accused, except that he was present along with 15 others---Co-accused was granted pre-arrest bail by the Trial Court which was confirmed---No overt act was attributed to accused, but general allegations were levelled against him---Main allegation for murdering the alleged abductees was against co-accused, who made straight fires on the deceased abductees---Name of accused was not mentioned in the F.I.R., and it was also not clear as to whether accused was partner in crime with the main accused---Case of accused would fall within the phrase "further inquiry" and no reasonable grounds were available to believe that accused was guilty of a non-bailable offence or offence punishable with death or life imprisonment---Mere absconsion would not be sufficient to dismiss the bail application, if accused was otherwise entitled to be enlarged on bail on merits of the case---Even at bail stage, the court could extend benefit of doubt to accused---Bail was granted to the accused.

Mitho Pitafi v. State 2009 SCMR 299; Muhammad Daud v. State 2008 SCMR 173; Bhutta v. State 2010 YLR 2108; Muhamamd Fazal alias Bodi v. The State 1979 SCMR 9; Muhammad Yaqoob v. State 2011 PCr.LJ 966; Haji Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765 and Allah Bachayo v. State 2009 SCMR 1352 ref.

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

----S. 497(2)---Further inquiry---Scope---Every hypothetical question which could be impugned, would not make it a case of "further inquiry", simply for the reason that it could be answered by the Trial Court subsequently after evaluation of evidence---Condition laid down in clause (2) of S.497, Cr.P.C. was that sufficient grounds were available for further inquiry into the guilt, which would mean that question should be such which had nexus with the result of the case and could show or tend to show that accused was not guilty of the offence with which he was charged.

PLD 1994 SC 65 and 1996 SCMR 1765 rel.

Irshad Hussain Dharejo for Applicant.

Syed Sardar Ali Shah Rizvi, Assistant Prosecutor General for the State.

Date of hearing: 18th January, 2012.

2012 Y L R 1403

[Sindh]

Before Muhammad Tasnim, J

SHAH MEHMOOD alias SHAHU---Appellant

versus

THE STATE---Respondent

Criminal Bail Application No.794 and M.As. Nos. 7641 and 5083 of 2011, decided on 18th August, 2011.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)---Possession of narcotic---Bail, grant of---Further inquiry---Contents of F.I.R. revealed that allegedly recovered narcotic had been shown to be approximately one and a half kilograms---Prosecution had confirmed that alleged recovered substance was never weighed at the time of the preparation of the Mashirnama---Delay of eleven days in sending samples for analysis had not been explained---Question as to whether the quantity of 500 grams marginally exceeded the upper limit of 1000 grams was yet to be determined---Case of accused was a border line case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997 and required further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Hamza v. The State 2000 PCr.LJ 1360 and Hakeem Jamali v. The State 2009 PCr.LJ 695 rel.

Muhammad Iqbal for Applicant.

Saleem Akhtar, A.P.-G. for the State.

2012 Y L R 1412

[Sindh]

Before Muhammad Tasnim, J

SABIR BAIG---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.784 of 2011, decided on 17th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/201/34---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Bail, grant of---Further inquiry---Occurrence took place on an unknown date and time and it was an unseen incident---No recovery had been effected from the accused---No private witness had been associated at the time of recovery and the mashirs were police officials---F.I.R. had been lodged after a delay of nineteen days and during this period the complainant might have deliberated and discussed the matter with family members before lodging the F.I.R.---No direct evidence was available against the accused, which made the case one of further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, accordingly.

Nazir Ahmad v. The State 2009 PCr.LJ 700 rel.

Mumtaz Ali Khan Deshmukh for Applicant.

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

2012 Y L R 1417

[Sindh]

Before Muhammad Tasnim, J

SAQIB---Applicant

versus

THE STATE---Respondent

Bail Application No.1054 and M.A. No.8227of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392/34---Robbery---Bail, grant of---Further inquiry---Previous enmity---Tentative assessment of record revealed that there was previous enmity between the parties---Accused was arrested after ten months of lodging of F.I.R.---Neither the allegedly robbed money and motorcycle nor any mobile phone or weapon was recovered from the accused---False implication of the accused in the crime could not be ruled out---Case of accused required further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, accordingly.

Shah Imroz for Applicant.

Shahid Ahmed Sheikh, A.P.-G. for Respondent.

2012 Y L R 1421

[Sindh]

Before Muhammad Tasnim, J

ZULFIQAR alias BADNA---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-407 of 2011, decided on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Previous enmity---False implication---Neither any overt act had been assigned to the accused nor any recovery had been effected from him---Deceased, in the past had lodged an F.I.R. in which co-accused was implicated as accused and, in circumstances, false implication of the accused could not be ruled out---Accused in the present case had been implicated under section 34 P.P.C and without recording of evidence it could not be decided whether he had any common intention to commit the offence with the co-accused---Accused had successfully made out a case for further inquiry in terms of section 497(2) Cr.P.C, and accordingly was admitted to bail.

Ghulamullah Chang for Applicant.

Shahzada Saleem Nahyoon, A.P.-G. for the State.

2012 Y L R 1432

[Sindh]

Before Imam Bux Baloch, J

ABDUL RAZAK---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-48 of 2010, decided on 9th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 337-A(ii), 337-F(ii), 504, 109 & 34---Qatl-e-amd, causing Shajjah-i-Khafifa and badiah, intentional insult with intent to provoke breach of the peace---Pre-arrest bail, refusal of---F.I.R. was promptly lodged by the complainant narrating the facts as occurred at the time of incident---Specific role was attributed to accused in the F.I.R.---Postmortem report of deceased was in conformity with the F.I.R.---Element of mala fide, which was a condition precedent for grant of bail before arrest, was missing, in the case---Four persons had received injuries in the attack, out of whom one lost his life and three were injured at the hands of accused party---Postmortem report clearly showed injury attributed to accused---Ocular evidence was in conformity with the medical evidence---Complainant had promptly lodged the F.I.R., without loss of time and specific role was attributed to accused by the complainant---No mala fide or ulterior motive or enmity was proved by accused---No merit was available in confirming the pre-arrest bail granted to accused---Pre-arrest bail application was dismissed, in circumstances.

Muhammad Siddique and another v. The State 2004 PCr.LJ 450; Malik Ejaz Ali v. The State 2005 MLD 997; Rafique Ahmed v. The Sate 2000 PCr.LJ 994; Lal Muhammad Kalharo and others v. The State 2007 SCMR 843 and Kabeer Abid and another v. The State 2008 MLD 1293 distinguished.

Zia-ul-Hassan v. The State PLD 1984 SC 192; Masood Ahmed v. The State 2006 SCMR 933 and Ch. Waris Ali v. The State 2007 SCMR 1067 rel.

Habibullah G. Ghouri for Applicant.

Rashid Mustafa Solangi for the Complainant.

Mosab Ali Dhamrah, State Counsel.

2012 Y L R 1469

[Sindh]

Before Salman Hamid, J

MUHAMMAD ALI---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.133 of 2011, decided on 7th December, 2011.

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

----Ss. 392/34---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Robbery, common intention, possession of illegal weapons---Evidence of one of the prosecution witnesses (police official) was fully corroborated by the other three prosecution witnesses, out of which two were independent witnesses---Cross-examination of the accused conclusively established that he was in possession of the weapon, as he only suggested that he did not fire from the same---Contention of accused that he did not beat and tie up the family members of the complainant during the course of stealing suggested that accused was present at the time of incident as such fact was never disputed by him---Accused in his appeal before the Court below, contended for the first time that he had some dealings with the complainant and had failed to pay an outstanding amount, because of which he had been implicated in the offence---Such belated defence by itself showed that complainant could not have achieved anything by putting the accused behind bars, thereby jeopardizing recovery of his outstanding amount---Present case did not involve any firing or killing of a person but was only a case of possession of unlicensed weapon, therefore not sending the weapon for expert report, was of no significance---Accused was apprehended on the spot in possession of an unlicensed weapon, and such fact had become an admitted position because of non-action, non-denial and non-cross-examination of certain facts by the accused---Courts below had rightly come to the conclusion that accused was found on the spot and from him an unlicensed weapon was recovered, from him, for which he had no plausible defence---Revision application of accused was dismissed, in circumstances.

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

----Art. 133---Examination and cross-examination---If any piece of evidence was not challenged in cross-examination, then it would be presumed to be accepted to be true.

Anwar Ali Shah for Applicant.

Saleem Akhtar, Addl. P.G. for Respondent.

2012 Y L R 1496

[Sindh]

Before Muhammad Tasnim, J

Syed HASNAIN RAZA ZAIDI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.565 of 2011, decided on 2nd June, 2011.

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

----S. 497 [as amended by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), S.365---Abduction---Bail, grant of---Incident was unseen and dead body of deceased abductee was not recovered on the pointation of accused---Medical report did not support the case of prosecution---Dead body was found on the street in a drum and post-mortem was conducted about 5-1/2 months prior to the arrest of accused---Prior to arrest of accused no one had asked any question to accused about deceased son of complainant---Cause of death was unknown---During the entire period of detention, accused had sought adjournment only four times and more than three years had passed, but the trial had not concluded---Delay in trial was not solely attributed to accused---Accused was neither previously convicted offender for the offence punishable with death or imprisonment for life or was hardened, desperate or dangerous criminal or was accused of an act of terrorism, punishable with death---Case of accused was fully covered under the amended S.497, Cr.P.C. and he was entitled to bail on that ground alone---Accused was admitted to bail, in circumstances.

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

----S. 497[as amended by Code of Criminal Procedure (Amendment) Act, (VIII of 2011)]---Grant of bail to an accused of an offence punishable with death on statutory ground of delay in trial---Principles---Where court was of the opinion that delay in trial of accused had not been occasioned by an act or omission of accused or any person acting on his behalf, court could direct that such accused be released on bail, who was accused of an offence punishable with death, had been detained for such offence for continuous period exceeding two years; and trial had not concluded, provided that above benefit would not be available to a previously convicted offender for an offence punishable with death or imprisonment for life; or to a person, who in the opinion of the court, was hardened, desperate or dangerous criminal; or was accused of an act of terrorism, punishable with death or imprisonment for life.

Gul Beg alias Nangi v. The State 2005 PCr.LJ 147; Aarab alias Katoo v. The State 2005 PCr.LJ 555; Abdul Hameed and others v. The State 2003 MLD 19 and Abdul Hameed and others v. The State 2003 MLD 19 rel.

Fida Hussain v. The State and others PLD 2002 SC 46; Zar Wali v. The State 2003 PCr.LJ 1446; Muhammad Akbar Tariq v. The State 1977 PCr.LJ 540; Amir Ali v. The State PLD 1960 (W.P) Kar. 753; Khadim Hussain and another v. The State 1989 PCr.LJ 2432; Lalu alias Badaruddin v. The State 2011 MLD 186 and Muhammad Nawaz v. The State 2002 SCMR 1381 ref.

Muhammad Ashraf Kazi for Applicant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

Ilyas Khan and Muhammad Farooq for the Complainant.

2012 Y L R 1543

[Sindh]

Before Nisar Muhammad Shaikh, J

Mst. KULSOOM FATIMA---Applicant

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-543 of 2011, decided on 11th March, 2011.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.365/511/337-L(2)/ 506/ 147/ 448--- Kid-napping or abducting with intent secretly and wrongfully to confine person, offences punishable with imprisonment for life or for a shorter term, other hurt, criminal intimidation, rioting, house-trespass---Application for quashing of order---Family dispute over property---Complainant (applicant) had lodged an F.I.R. against accused persons and after completing investigation of the case, police recommended the cancellation of the F.I.R. in 'B' class, which recommendation was accepted by the Magistrate---Validity---Impugned order of Magistrate clearly indicated that both the independent witnesses, who had allegedly saved the complainant from the accused persons, did not support the version of the complainant in their statements recorded under S. 161, Cr.P.C---No documentary evidence was available with the complainant in support of her version contained in the F.I.R.---Magistrate after discussing the relevant aspects of the case rightly accepted the recommendation of the Investigating Officer for cancellation of the F.I.R. in 'B' class---Application for quashing of order was dismissed, in circumstances.

Muhammad Akbar v. State and another 1972 SCMR 335; Malik Dil Nawaz v. State 2009 YLR 1604 and Criminal Miscellaneous No.S-245 of 2008) distinguished.

Syed Hussain Tariq for Applicant.

2012 Y L R 1557

[Sindh]

Before Shahid Anwar Bajwa, J

REHMATULLAH

and 5 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-17 and S-45 of 2012, decided on 9th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/452/337-H/148/149--- Attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful confinement, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Allegation against accused persons was of ineffective aerial firing---Medical certificate revealed that co-accused persons had caused injuries on non-vital parts of the injured's body---Accused persons were admitted to bail, in circumstances.

Murad Khan v. Fazal Subhan PLD 1983 SC 82 ref.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss.324/452/337-H/148/149--- Attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful confinement, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, confirmation of---Merits of a case could be considered in a pre-arrest bail proceedings---Allegation against accused persons was of aerial firing---Medical certificate revealed that accused persons had caused injuries on non-vital parts of the injured's body---Pre-arrest bail granted to accused persons was confirmed, in circumstances.

Murad Khan v. Fazal Subhan PLD 1983 SC 82 ref.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

Ahmed Hussain Khoso for Applicants (in both applications) .

Rasool Bux Soomro for the Complainant.

Ali Raza Pathan, State counsel.

2012 Y L R 1568

[Sindh]

Before Shahid Anwar Bajwa, J

DILDAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-564 and M.A. No.2231 of 2011, decided on 1st March, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/337-H(2)/148/149/114--- Qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Bail, grant of---Further inquiry---Allegation against accused persons was of committing the alleged offence after they were refused the hand of a minor girl in marriage---Contention of accused persons that there was no allegation against them of firing or injuring anyone and all that was alleged was that after the incident they resorted to aerial firing---Validity---Only allegation against accused persons was of aerial firing---Question as to whether there was any common intention or not was almost always a question of further inquiry---Bail application of accused persons was allowed and they were admitted to bail.

Muhammad Hashim Khoso v. The State 2011 PCr.LJ 1580 ref.

Allah Nawaz v. The State 2004 SCMR 1175 fol.

Abdul Rabb v. The State Criminal Application No.819 of 2011 and Rana Muhammad Safdar v. Gulzar alias Papu 1999 PCr.LJ 1 distinguished.

Aftab Ahmed Gorar for Applicants.

Altaf Hussain Surahio, State Counsel.

Zahid Hussain Chandio for the Complainant.

2012 Y L R 1588

[Sindh]

Before Faisal Arab, J

INSAAF and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.S-64 of 2009 and M.A. 2016 of 2011, decided on 13th February, 2012.

Criminal Procedure Code (V of 1898)---

---S.426(1-A)(c)---Suspension of sentence--Scope---Statutory delay in disposal of appeal---More than two and a half years had elapsed since accused and co-accused had filed their appeals and their contention was that delay was not attributable to them---Validity---Prosecution had conceded that there was no delay on the part of the accused and co-accused---Report from jail authorities stated that accused and co-accused had not been previously convicted in any other case and during their confinement in prison, their conduct was satisfactory---Right of accused under S. 426(1-A)(c), Cr.P.C, was independent of his right to seek suspension of his sentence by Appellate Court on merits, therefore such right could be exercised by the accused, notwithstanding the fact that Appellate Court in exercise of its discretion had earlier declined bail on merits under S. 426, Cr.P.C---Sentence of accused and co-accused was suspended, in circumstances.

Naveed alias Naveedi v. The State 2011 PCr.LJ 1971 and Liaqat and another v. The State 1995 SCMR 1819 ref.

Syed Madad Ali Shah for Appellants.

2012 Y L R 1615

[Sindh]

Before Ghulam Sarwar Korai, J

DHANI BUX alias DINO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-442 of 2010, decided on 30th August, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss. 324/149/504/114/337-H(2)/403/ 147/148---Attempt to commit qatl-e-amd, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor presented when offence committed, hurt by rash or negligent act, dishonest misappropriation of property, rioting, rioting armed with deadly weapons---Interim pre-arrest bail, confirmation of---F.I.R. was registered with a delay of about 14 days which created doubt in the prosecution case---Accused was allegedly armed with a gun and he fired one shot which allegedly hit the injured on his arm and though other co-accused were armed with weapons but nothing was done by them except aerial firing---Witnesses were relatives of the complainant, therefore, there was no likelihood of tampering with the evidence by the accused---Remanding accused to jail would have served no purpose to the prosecution---Accused had been cooperative with the investigation since he was granted interim pre-arrest bail---Interim pre-arrest bail allowed to accused was confirmed, in circumstances.

Nisar Ahmed G. Abro for Applicant.

2012 Y L R 1630

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

MUHAMMAD ARSHAD HUSSAIN alias GUL KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.173 of 2011, decided on 29th August, 2011.

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

----Ss. 9(c) & 48---Possession of narcotics---Appreciation of evidence----Reduction in sentence---Trial court had convicted the accused (appellant) under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to seven years' imprisonment and imposed a fine of Rs. 100,000---Contention of accused was that his sentence be reduced to that already undergone by him since quantity of narcotic recovered from him was less than 1100 grams and that he had no previous criminal record and was the only bread winner of his family---Validity---Substantial part of sentence had already been undergone by the accused---Prosecution had contended that F.I.Rs. and criminal cases were pending against the accused but neither anything was brought on record to substantiate the same nor F.I.R. or impugned judgment of Trial Court reflected such fact---Sentence of accused was reduced from seven years to the one already undergone by him (four years, nine months and two days), and resultantly directions were given to release him---Fine imposed by Trial Court was not changed.

Raees Khan Jadoon v. The State 2010 YLR 3240; Niazuddin v. The State 2007 SCMR 206; Muhammad Iqbal v. The Province of Sindh PLD 2011 Kar. 32 and Sajid Hussain v. The State 2010 YLR 2170 rel.

Shaukat Hayat for Appellant.

Khadim Hussain Deputy Prosecutor for the State.

2012 Y L R 1638

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

WAHID BUX alias BADSHAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-1037 and M.A. No.6412 of 2011, decided on 29th February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.395/353/324/302/114---Dacoity, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd, qatl-e-amd, abettor present when offence is committed---Bail, grant of---Complainant (police official) had alleged that he along with the deceased (police official), were standing at a naka (checkpoint), and when complainant went away to urinate, he heard cries of the deceased and saw the accused along with his co-accused persons, and on hakal (instigation) of accused, one of the co-accused persons fired upon the deceased---Validity---No explanation was provided as to why two (2) days were taken in registration of F.I.R. for a case in which a police official had been done to death---When complainant was busy in urinating, question was as to how he could have seen the person instigating (hakal), and if complainant had heard someone instigating then his attention should have been attracted by the sound of the instigation (hakal) rather than the cries of the deceased which followed, and if the sound of the instigation (hakal) had not attracted complainant's attention, then how could he have stated as to who instigated---Accused was stated to be empty-handed and it was alleged that he had caused no injury to anyone---Accused had earlier been recovered by a raid Commissioner , when an application for his illegal detention had been filed before the High Court---Upon inquiry of such illegal detention of accused , four police officers had issued statements of allegations in respect of the alleged illegal detention---Case against accused was doubtful and, in circumstances, he was admitted to bail.

Tariq Zia v. The State 2003 SCMR 958 and Yaroo v. The State 2004 SCMR 864 ref.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 distinguished.

Alam Sher Bozdar for Applicant.

2012 Y L R 1651

[Sindh]

Before Aqeel Ahmed Abbasi, J

Mrs. GHAZALA PARVEEN---Applicant

versus

SADIQ DANIEL and 18 others---Respondents

Criminal Revision Applications Nos. 144, 145 of 2009 and 48 of 2010, decided on 8th December, 2011.

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

----Ss. 497, 497(5) & 498---Bail, grant and cancellation of---Parameters---Parameters for grant of bail and cancellation of bail were different---Once an accused was granted bail on merits and bail granting order was not arbitrary or perverse, in such a case the bail should not be cancelled---Cancellation of bail could only be done on exceptional grounds such as, where accused on bail repeated the offence, hampered investigation, made efforts to suborn evidence, had committed act of violation against prosecution witness or tried to run away from the jurisdiction of the court and the control of sureties.

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

----S.498---Bail before arrest---Accused seeking pre-arrest bail had to show that the prosecution had falsely implicated him in the alleged crime in order to cause harm and injury to his reputation and that no material was available with the prosecution to implicate and connect accused with alleged crime.

Muhammad Safdar v. The State 1983 SCMR 645; Muhammad Azam v. The State 1996 SCMR 71 and Rana Muhammad Irshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

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

----Ss. 497(2)(5) & 498---Penal Code (XLV of 1860), Ss.354 & 354-A---Assault or using of criminal force to woman with intent to outrage her modesty and stripping off her clothes---Bail, grant of---Further inquiry---Sufficient material was available on record which had connected some of accused persons with the alleged crime falling under S.354-A, P.P.C.---Since there were number of accused persons who had been nominated in the F.I.R. with different roles, their cases could be dealt with in accordance with the roles assigned to them; and on the basis of material and evidence available against them---No overt act or any direct role was attributed to certain accused in relation to allegation of having committed an offence falling under S.354-A, P.P.C.---To examine as to whether common intention of those accused persons to commit an offence falling under S.354-A, P.P.C., required further inquiry---Matter had not proceeded any further, since registration of F.I.R. and submission of final challan, as no prosecution witness including the complainant, had been examined; hardly any material existed which could connect said accused persons with the alleged crime---No useful purpose would be served by recalling the bail granted to said accused persons by the Trial Court---Bail granted to those accused were confirmed and bail application of other accused only was cancelled in an earlier round of proceedings---Bail granted to said accused persons by the Trial Court, would not require any interference by High Court in circumstances.

Sarfraz Khan v. The State and 2 others PLD 1988 SC 726; Mst.Zaitoon v. M. Riaz and 3 others PLD 1996 (Peshawar) 30; Allah Ditta v. The State 2003 MLD 1848; Naveed v. The State 2004 YLR 2392; Mst. Qudrat Bibi v. Muhammad Iqbal and others 2003 SCMR 68; Gul Zaman v. The State 2004 YLR 3335; Muhammad Safdar v. The State 1983 SCMR 645; Muhammad Azam v. The State 1996 SCMR 71; Arif Matin Bhutta v. The State PLJ 1984 Cr.C. (Lahore) 372; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and Faqir Muhammad and 2 others v. The State 2010 YLR 457 ref.

Tariq Bashsir and others v. The State PLD 1995 SC 34; Mir Ahmad Gul and 2 others v. The State 1996 SCMR 979; Samina Shafi v. The State 2002 YLR 899; Qabil v. The State 2011 PCr.LJ 232; Mst. Mumtaz Bibi and others v. The State 2011 SCMR 355; Tahir Abbas v. The State 2003 SCMR 426; Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682; Fazal Muhammad v. Ali Ahmed and 3 others 1976 SCMR 391; Ghulam Hussain v. Muhammad Saleh 1983 SCMR 357; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Shukar Din v. Zafra hayat and others 2002 SCMR 201; Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Muhammad Saleh and another v. The State 2011 PCr.LJ 120; Asmatullah v. The State PLD 2011 178; Muhammad Salman Shafique v. The State 2011 SCMR 165; Muhammad Akbar v. Muhammad Akhtar 2006 YLR 3123; Zakaullah v. The State 1976 SCMR 352; Shahnaz Bibi v. Gul Khan alias Haji Khan1999 PCr.LJ 868; Ayaz Ahmad Khan v. The State PLD 2011 SC 171; Muzaffar Iqbal v. Muhammad Imran 2004 SCMR 231; Muhammad Saeed v. Muhammad Bakhsh and 4 others PLJ 2003 Crl. Case 871; Abid Ali alias Ali v. The State 2011 SCMR 161; Asif Jameel and others v. The State 2003 MLD 676; Rukhsar Ahmad and 3 others v. The State and another 2005 PCr.LJ 988; Muhammad Bashir Guraya v.Raja Muhammad Irshad and another 2005 YLR 1220; Sajjad Hussain v. The State PLD 1996 Lah. 286 and Khalil Ahmad and another v. The State 2003 PCr.LJ 1754 distinguished.

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

----Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), Ss.354 & 354-A---Assault or using of criminal force to woman with intent to outrage her modesty and stripping off her clothes---Bail, grant of---Further inquiry---Record had shown that certain accused persons had not been implicated directly for having committed the offence which could attract the provisions of S.354-A, P.P.C., whereas the allegation regarding their common intention to commit offence under said section required further inquiry, which could only be established after recording of evidence---Said accused could be treated on bail under S.354-A, P.P.C. till recording of evidence of the complainant and at least six prosecution witnesses---If at all, after recording of the evidence of those witnesses, some material was brought on record which could connect the accused persons with an offence falling under S.354-A, P.P.C., complainant would be at liberty to move an application to the court for cancellation of bail, which would be disposed of on the basis of evidence and the material, strictly in accordance with law.

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

----S. 498---Penal Code (XLV of 1860), Ss.354 & 354-A---Assault or criminal force to woman with intent to outrage her modesty and stripping off her clothes---Pre-arrest bail, refusal of---Victim had alleged that one accused took her shirt upwards and the other pulled down her shalwar---Eye-witnesses supported the version of the complainant in that regard---Two inquiry reports, conducted by Superior Police Officials suggested that on the fateful date the incident took place and F.I.R. was required to be registered---Despite the fact that F.I.R. contained the offence under S.354-A, P.P.C., none of the accused nominated therein was arrested---Sufficient material was available against said two accused persons, which connected them with the commission of alleged offence falling under S.354-A, P.P.C.---Trial Court, while confirming bail to the said accused, had misdirected itself that S.354-A, P.P.C., had been substituted by S.354, P.P.C.---Said two accused, were not entitled to concession of pre-arrest bail, impugned order rejecting the application of the complainant seeking cancellation of bail, was set aside, in circumstances.

Mrs. Benysh Qureshi for Applicant.

Farogh Naseem and Khurram Iqbal for Respondents.

Muntazir Mehdi, A.P.-G. for Respondent No.19.

2012 Y L R 1674

[Sindh]

Before Salman Talibuddin, J

MUHAMMAD HASSAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.189 of 2009, decided on 17th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 6, 7(b) & 17(4)---Penal Code (XLV of 1860), Ss. 337-A(i) & 337-A(ii)---Haraabah, shajjah-i-khafifah, shajjah-i-mudihah and haraaba---Bail, grant of---Questions as to who amongst the accused and his co-accused actually caused the injuries inflicted on the complainant and which of the two allegedly committed the alleged robbery, were yet to be determined--Condition precedent to the application of S.17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 as set out in Ss. 6 & 7(b) thereof did not appear to have been met in the present case---High Court did not see any reason to deny bail to accused, and therefore, admitted him to bail.

Arib and 3 others v. The State 1988 PCr.LJ 1766; Karim Haider v. The State 1986 SCMR 938; Ali Muhammad v. The State PLJ 1975 Cr.C (BJ) 27; Mhanda v. The State 1994 PCr.LJ 86; Abdul Hameed Khan v. The State 1978 PCr.LJ 150; Shah Ali and 2 others v. The State 1976 PCr.LJ 1021; and Muhammad Ramzan v. The State 2008 MLD 397; Muhammad Asif v. The State 2007 PCr.LJ 1292; Muhammad Abbas v. The State PLD 1988 SC (AJ&K) 14; Amir v. The State PLD 1972 SC 277; Syed Amanullah Shah v. The State PLD 1996 SC 241; and Nooruddin v. The State 2005 MLD 1267 ref.

Sajjad Ahmed Chandio for Applicant.

2012 Y L R 1696

[Sindh]

Before Ghulam Sarwar Korai, J

AHMED DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.98 of 2006, decided on 24th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/353---Qanun-e-Shahadat (10 of 1984), Art.38---Qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty---Confession before Police Officer---Appreciation of evidence--Benefit of doubt---Magistrate recorded statement under S.164, Cr.P.C. of the witnesses, but no identification parade was held---Mere recovery of any unlicensed T.T. Pistol from accused, without anything more could not throw light on the identity of accused in the case---No description of accused was given by the police party---Firing was alleged against 4/5 persons---No specific role was assigned to accused by the Police and he was implicated in the case without any material---Extra-judicial confession about commission of offence before Police Officials had no value in the eyes of law---Single circumstance was sufficient to give benefit of doubt to accused, but in the present case, there were number of circumstances to believe that implication of accused was baseless and without any material---Prosecution having failed to establish its case against accused beyond reasonable doubt, he was acquitted, in circumstances.

Muhammad Munir Ahmed for Appellant.

Abdullah Rajput Assistant Prosecutor-General for Respondent.

Date of hearing: 24th January, 2011.

2012 Y L R 1713

[Sindh]

Before Faisal Arab, J

AZMAT ZAMIR KHAN---Petitioner

Versus

Mst. ANEES JAMAL alias RUQIYA BEGUM and another---Respondents

Constitution Petition No.S-49 of 2011, decided on 20th February, 2012.

Sindh Rented Premises Ordinance (XVII OF 1979)---

----Ss.16 & 18---Constitution of Pakistan, Art.199---Constitutional Petition---Tenant (petitioner) assailed orders of Rent Controller whereby he was directed to deposit the arrears of the rent in court---Contention of the tenant was that since he had disputed the relationship of landlord and tenant, therefore, the Rent Controller had no jurisdiction to pass the order for deposit of rent---Validity---Rent order was passed on tentative assessment as rent agreement had been produced and admittedly the landlord was owner to the extent of 89% of the property and said rent agreement was executed by the tenant---Landlord had given legal notice to the tenant under S. 18 of the Sindh Rented Premises Ordinance, 1979---Order of Rent Controller required no interference---Constitutional Petition was dismissed accordingly.

Abdul Jabbar Shaikh for Petitioner.

S. Kamran Ali, for Respondent No.1.

2012 Y L R 1719

[Sindh]

Before Shahid Anwar Bajwa, J

IMDAD ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-976 of 2010, heard on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 148, 149 & 109---Qatl-e-amd, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---F.I.R. in the case was lodged five days after alleged abduction---In cases of abduction, whether a female or a male, the family's first priority was to try to locate the abductee---Stricto sensu, the delay in lodging of such F.I.R. was rarely material, at least at the bail stage---Accused persons though had been arrested for a long time, but no recovery had taken place from them---Entire incident was an unseen incident---Deceased was alleged to have illicit relations with the wife of one of the community member of one co-accused---Incident seemed a bit unnatural, in the presence of such allegations and bad blood, which had created doubt---No crime weapon having been recovered, it was a case of further enquiry---Accused were admitted to bail, in circumstances.

Miandad and another v. The State 2010 MLD 956; Shahnawaz v. The State 2009 YLR 2300; Muhammad Ilyas v. The State 2009 YLR 2311; Muhammad Shabbir v. The State 2010 YLR 1379 and Muhammad Sadiq and another v. The State 1998 SCMR 526 ref.

Bagh Ali Shar for Applicants.

Illahi Bux Jamali for the Complainant.

Shyam Lal A.P.-G. for the State.

Date of hearing: 17th October, 2011.

2012 Y L R 1734

[Sindh]

Before Salman Hamid, J

Messrs CAPTAIN PQ CHEMICAL INDUSTRIES (PVT.) LTD. Through Authorized Person---Petitioner

Versus

VITH ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI and 4 others---Respondents

C.P. No.335 of 2011, decided on 19th January, 2012.

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

----Ss. 19 & 15---Civil Procedure Code (V of 1908) O.II, R. 2---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need of landlord---Eviction of tenant (petitioner) was allowed concurrently by the courts below---Contention of the tenant (petitioner) was , inter alia, that two separate rent agreements, which were a decade apart and independent of each other, had been executed , for the main building and the annexe, and therefore, two separate causes of actions could not have been joined together and filed before the Rent Controller---Validity---One of the landlords had asserted her bona fide need which was enough evidence to show the bona fide personal need of the landlord which could not be shattered by the tenant in the courts below---Contention of the tenant that findings on all issues ought to have been given by the courts below was not correct inasmuch as in the terms of S.19(5) of the Sindh Rented Premises Ordinance, 1979; substantial issues which were before such court had been framed, and findings on such issues were available, and since issue of joining of causes of action was not a material issue, which was raised by the tenant, question of deciding the same never arose inasmuch as it was permissible under the law that several causes of action could be joined or brought in a single suit which in the present case was brought before the Rent Controller---Order II, R. 2, C.P.C. did not bar filing of a suit on joinder of two causes of a case, and in the present case, said benefit of Order II , R. 2, C.P.C. had been availed by the landlords---Constitutional petition was dismissed.

Noor Ali v. Salim 1996 MLD (Kar.) 71; Hafiz Ferozuddin and 2 others v. Arshad Begum and others 2010 CLC 365; Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787; Arshad Butt v. Manzoor Ahmed 1992 CLC 723; Muhammad Yousuf through special attorney v. Mst. Anwar Begum and 7 others 2010 MLD 147; Adamjee Jute Mills v. Province of East Pakistan and others PLD 1959 SC Pak 272; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Muhammad Ayub Khan and 4 others v. Chairman Inspection Team Chief Executive Secretariat Muzaffarabad and others 1989 CLC 870 SC AJ&K; AH Alvi v. Muhammad Tariq PLD 2001 Kar. 389; Mirza Shamsul Arfin v. Mst. Abida Khatoon 1989 CLC 1926; K.C.A Mamoo v. Mrs. Badrunnisa 1985 CLC 332; Chaudhary Tufail Muhammad v. Syed Burhanuddin 1989 MLD 3559; Muridke Refine Oil Mills (Pvt.) Ltd. v. Secretary Revenue Division Islamabad 2009 PTD 910; Haji Muhammad Iqbal and 7 others v. Collector of Customs (Appraisement) Dry Port Mughalpura Lahore and another 2005 PTD 1189 and Messrs A.C.E. Enterprises v. Additional District Judge, Lahore and others 1987 SCMR 1174 ref.

Lal Din Masih v. Mst. Sakina Jan 1985 SCMR 1972; Messrs Imperial Builders v. Lines (Pvt.) Ltd. PLD 2006 Kar. 593; Arshad Butt v. Manzoor Ahmad 1992 CLC 723 and Ghulam Muhammad v. Zahir Ahmad Khan 1986 CLC 681 rel.

Haider Waheed for Petitioner.

Abdul Rehman for Respondents Nos. 3 to 5.

Date of hearing: 11th January, 2012.

2012 Y L R 1752

[Sindh]

Before Mrs. Qaiser Iqbal, J

ESTATE AND ASSETS OF LATE ABDUL GHANI: In the matter of

S.M.A. No.42 and C.M.A. No.936 of 2008, decided on 11th May, 2009.

Succession Act (XXXIX of 1925)---

----S.372---Application for succession certificate---After succession miscellaneous application was granted, the amount was distributed amongst the petitioner (wife) and two legal heirs; son and daughter---Contention of the applicant was that the son was allegedly not the real son of the deceased as his name was not mentioned in the affidavit of the petitioner-wife of the deceased before the Official Assignee----Validity---High Court directed the son to appear before the Hospital along with the petitioner for the purpose of DNA test to ascertain whether or not he was real son of the petitioner and was entitled to the succession amount; and the expenses for said test were to be paid by the applicant.

Shahida Bano Kasmani for Petitioner.

Parveen Ghani, Legal Heirs Pervez Ghani and Aaisha Ali present in person.

Ms. Naheed A. Shahid, and Ghulam Yasir, for Applicants.

Qadir Bux Umrani, Official Assignee present in person.

Abdul Hameed, Abdul Rahman and Ali Muhammad in person.

2012 Y L R 1780

[Sindh]

Before Shahid Anwar Bajwa, J

PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant

Versus

ANWAR TEXTILE MILLS LTD. through Chief Executive Officer and 3 others---Respondents

Second Appeal No.35 of 2010, decided on 18th April, 2012.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Civil Procedure Code (V of 1908), O.VI, R.1---Suit for declaration, recovery of possession and damages---Written statement---Failure to produce witness---Suit filed by plaintiff was decreed by Trial Court and Lower Appellate Court concurrently in favour of plaintiff---Defendant-company contended that suit filed by plaintiff was barred by limitation---Plea raised by plaintiff was that defendant-company did not produce any evidence, therefore, its defence had been struck of---Validity---Party which filed written statement, if had not brought forth any witness in support of the same, that party could not rely on contents of such written statement, which had to be taken out of consideration---Such defendant had no right to put up his defence, it was written statement which was taken out of consideration and not defence of defendant-company was struck of---Defendant-company could be able to put up defence through cross-examining witnesses of plaintiff and by relying upon evidence adduced by plaintiff---As suit of plaintiff was barred by time and limitation had barred the remedy, therefore, High Court declined to go into the merits of the suit---High Court in exercise of appellate jurisdiction set aside concurrent judgments passed in favour of plaintiff and suit was dismissed---Second appeal was allowed in circumstances.

Allah Baksh and 4 others v. Dr. Abdul Waheed and. another PLD 1996 Karachi 458, Niamat Ali and 4 others v. Diwan Jairam Dass and another PLD 1983 SC 5, Kazim Imam Jan v. Muhammad Jawaid and 4 others, 2003 CLC 200 and Mst. Sarwat Ara and 3 others v. Mst. Sabra Khatoon, 1993 CLC 1682; Nooruddin and others v. Pakistan and others 1997 CLC 1971 ref.

Wali Muhammad Khokhar v. Government of Sindh and others 2001 SCMR 912 and Collector Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan and others v. Ghulam Sidiq and others 2002 SCMR 677 rel.

Aijaz Ahmed for Appellant.

Naeem Iqbal and Muhammad Qasim, Standing Counsel for Respondents.

Date of hearing: 29th March, 2012.

2012 Y L R 1801

[Sindh]

Before Munib Akhtar and Syed Hasan Azhar Rizvi, JJ

Miss RABIA KHAN and 3 others---Petitioners

Versus

PROVINCE OF SINDH and 3 others---Respondents

C.Ps. Nos.D-455, 1970, 1987 to 1991, 1954, 1955, 1951, 2006 to 2010, 1900, 1860 to 1863 and 1995 of 2011, decided on 6th April, 2012.

(a) Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009 (XX of 2010)---

----S. 2---'Constituent' and 'affiliated college'--- Distinction--- "Constituent college" is both owned and run by University itself, whereas "affiliated college" is neither owned nor run by it---Later type of college may be owned, e.g. by a trust, an individual, a company or government or it may even be a corporate body in its own right---"Affiliated college" may also be formally owned by one body or person while being maintained by another---Degree to be awarded to students at "affiliated college", like those at a "constituent college", is by and that of the University.

(b) Interpretation of statutes---

----Amendment of statute---Scope---Any amendment in statutory text can be brought about by amending the Act or Ordinance.

(c) Administration of justice---

----Executive authority, exercise of---Principles---Executive authority must be exercised in manner consistent with any legislative enactment, and in particular if a matter is covered, governed or regulated by statute, then to that extent it is the legislative will that must prevail and executive authority could not be relied upon.

Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224 rel.

(d) Constitution of Pakistan---

----Art. 25---Gender discrimination---Scope---Provision of Art. 25(2) of the Constitution prohibits gender based discrimination but clause (3) allows positive discrimination for the "protection" of women.

(e) Constitution of Pakistan---

----Part-II, Chap. 1, (Arts. 8 to 28)---Fundamental rights---Scope---Such rights serve as a check on State power, i.e. they prohibit relevant organ of the State from doing what it otherwise can do (whether in the exercise of legislative or executive power)--Fundamental rights do not confer powers on the State; they derogate from its powers and draw a line which cannot be crossed.

(f) Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009 (XX of 2010)---

----Ss. 6, 21, 26, 27 (2)(c) & 32---Liaquat University of Medical and Health Sciences Ordinance (VIII of 2000), S. 3---Shaheed Mohtarma Benazir Bhutto Medical University Larkana Act (VI of 2008), S.3--Constitution of Pakistan, Art. 199---Constitutional petition--- Educational institution---Admission in M.B.B.S.---Admission policy---Grievance of petitioners was with regard to issuance of corrigendum issued by Provincial Government making changes in Admission policy---Validity---Authorities could not impose Government's will on the Universities by means of Corrigendum in question or any other executive act---Each of three Universities was an independent and autonomous, governed and regulated by its own statute---Such independence was subject to rider that to the extent that matter fell within its jurisdiction and the Universities must conform to decisions of Pakistan Medical and Dental Council, as the Council was to act as a regulator---High Court declared that the Corrigendum was an executive act and could not be enforced or implemented and therefore, must be regarded as being of no legal effect---By reason of S. 6(2) of Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009, the old policy must continue at Peoples University of Medical and Health Sciences/Peoples Medical College until and unless modified by the University's syndicate, which was fully empowered to take appropriate action in the matter---As neither Liaquat University of Medical and Health Sciences Ordinance, 2000, nor Shaheed Mohtarma Benazir Bhutto Medical University Act, 2008, contained any provision equivalent to S.6(2) of Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009, therefore, those two Universities were not bound to recognize or apply old policy unless they themselves choose to do so in accordance with their respective statutes---High Court further directed that for year, 2011-2012 session admissions to Peoples University of Medical and Health Sciences/Peoples Medical College must be finalized on the basis of combined merit-cum-choice lists as before but Liaquat University of Medical and Health Sciences and Shaheed Mohtarma Benazir Bhutto Medical University could finalize their admissions on the basis of their own, separate lists---Petition was disposed of accordingly.

Bank of NSW v. Commonwealth (1948) HCA 7; (1948) 75 CLR 1; Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224; Chairman, Joint Admission Committee, Khyber Medical College v. Raza Hassan and others 1999 SCMR 965; Ghulam Mustafa v. Mehran University of Engineering and Technology and others 1986 CLC 1056 (SHC) and Ayesha Fida v. Government of NWFP and others 2004 CLC 1160 (PHC) ref.

(g) Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009 (XX of 2010)---

----S. 6(2)---Constitution of Pakistan, Art. 25(3)--- Gender discrimination---Effect---Provisions of Art. 25(3) of the Constitution can be regarded as applying to Peoples University of Medical and Health Sciences Act, 2009, as the same by virtue of its S.6(2), positive discrimination in favour of women by allowing the girls-only character of Peoples Medical College to remain alive.

Sardar Akbar Ujjan for Petitioners (in C.P. No. 455 of 2011).

Amjad Sahito for Petitioners (in C.P. No. 1970 of 2011).

Hakim Ali Siddiqui for Petitioners (in C.Ps. Nos. 1987, 1988, 1989, 1990 and 1991 of 2011).

Muhammad Arshad S. Pathan for Petitioners (in C.P. No. 1954 and 1955 of 2011).

Muhammad Masood Khan for Petitioners (in C. P. No. 1951 of 2011).

Sajid Hussain Mirrani for Petitioners (in C.Ps. Nos. 2006, 2007, 2008, 2009 and 2010 of 2011)

Raja Jawad Ali Sahar for Petitioner (in C.P. No. 1900 of 2011).

Zahoor A. Baloch for petitioners (in C.Ps. Nos.1860, 1861, 1862, 1863 and 1995 of 2011).

Shahab Usto and Awais Jamal for respondent PUMHS Kamaluddin for Respondent LUMHS.

Allah Bachayo Soomro, Addl. A.G. for the State.

Dates of Hearing: 6th, 8th, 13th, 14th and 15th March, 2012.

2012 Y L R 1833

[Sindh]

Before Nisar Muhammad Shaikh, J

GOVERNOR---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-362 of 2011, decided on 14th October, 2011.

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

---S. 516-A---Application for superdari of vehicle---Accused (applicant) and co-accused were allegedly apprehended by the police together with the vehicle from which pints/bottles of wine were recovered---Accused, claiming to be the owner of the vehicle, applied under S. 516-A, Cr.P.C, for return of the said vehicle on superdari but same was dismissed by both the courts below---Validity---Accused was allegedly found driving the vehicle in which huge quantity of wine was being transported and since accused also claimed to be the owner of such vehicle, his involvement in commission of the alleged offence was a direct one, and as such disentitled him from the restoration of the vehicle on superdari-High Court found no illegality in the orders of the courts below---Application for superdari of vehicle was dismissed, in circumstances.

Muhammad Hussain v. The State PLD 2005 Kar. 196 and Gul Subhan v. The State PLD 2005 SC 160 distinguished.

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

----S. 516-A---Order for custody and disposal of property pending trial---Principle---No person should be deprived of his property by way of penalty unless it was clear that he was in some measure responsible for assisting or furthering the commission of the offence committed.

Muhammad Hussain v. The State PLD 2005 Kar. 196 ref.

Noorul Haq Qureshi for Applicant.

Shahzado Saleem Nahiyoon A.P.-G. for the State.

2012 Y L R 1841

[Sindh]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

MUHAMMAD SHOUKAT and others---Appellants

Versus

THE STATE---Respondent

Special A.T.A. Appeals Nos. 22 to 25 of 2006 Confirmation Case No.10 of 2006 and Special Cases Nos. 17 and 18 of 2003, decided on 26th September, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-D, 337-F(iii)(vi) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd, Jaifah, causing Mutalahimah, Munaqqalah, act of terrorism and possessing unlicensed arms--Appreciation of evidence---Identification parade---Essentials---Evidence against accused persons was of only holding of identification parade---Contents of the F.I.R. revealed that witnesses had seen the accused for the first time; in such circumstances, identification parade became essential, which was to be conducted strictly in accordance with law after completing legal formalities---Role of accused in identification test should be described by the witnesses---If, however, the witnesses had not described such role at the time of identification parade, identification test would loose its value and same could not be relied upon---Features, description and built of the dummies should be the same as of accused, but in the present case, all the witnesses who had identified accused in different identification tests and the Magistrate who conducted identification tests, had admitted the dummies were of different features, description and height at the time of alleged identification test---Requirements of law had not been observed by the Magistrate conducting identification tests---Identification test of the one of the accused persons was held after delay of nine days---Statements of the witnesses were recorded by the Investigating Officer with the delay and no plausible explanation for such inordinate delay was available on record---Witnesses had made improvements and exaggerations in their statements---Recovery of Kalashnikov and motorcycles from accused, was also doubtful as no person from the locality was cited as witness as required under S.103, Cr.P.C.---Recovery of pistol from accused, was also of no value as no independent witness was cited during alleged arrest and recovery of pistol from possession of accused---Identification tests being doubtful, in circumstances, and the prosecution having no other incriminating evidence against the accused persons, impugned judgment was set aside, accused were acquitted from the charge and were directed to be released.

Shafqat Mahmood and others v. The State 2011 SCMR 537, Bashir alias Bashira and another v. The State 1995 SCMR 276, State/Govt. of Sindh through Advocate-General Sindh Karachi v. Sobharo, 1993 SCMR 585, Assadullah v. The State 1999 SCMR 434, Tariq Pervez v. The State 1995 SCMR 1445; 2001 SCMR 424; PLD 1995 SC 1; 2008 SCMR 1221, Ali Khan and another v. The State 2010 PCr.LJ 11 and Muhammad Akram Rahi v. The State 2010 CLJ (SC) 708 ref.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Khadim Hussain v. The State 1985 SCMR 721; Mushtaq Ali Kalhoro v. The State 1996 PCr.LJ 1315; Lal Pasand v. The State PLD 1981 SC 142 and Tariq Parvez v. The State 1995 SCMR 1345 rel.

Muhammad Akram Rahi and others v. The State 2011 SCMR 877 and Ali Khan and another v. The State 2010 PCr.LJ 11 distinguished.

Abdul Waheed Katpar for Appellants (in Special Criminal A.T.A. No.22 of 2006).

M.R. Syed for Appellant (in Special A.T.A. No.25 of 2006).

Saleem Akhtar, A.P.-G. for the State.

Dates of hearing: 25th, November, 13th, 20th December, 2010, 17th January and 15th March, 2011.

2012 Y L R 1885

[Sindh]

Before Shahid Anwar Bajwa, J

GHULAM QADIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-4 of 2012, heard on 19th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.196/198/199/ 200/209/420/ 468/471---Using evidence known to be false, using as true a certificate known to be false, false statement made in declaration which is by law receivable as evidence, using as true a declaration which is by law receivable as evidence, knowing it to be false, dishonestly making false claim in court, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, confirmation of---Accused had submitted documents of his property as surety for the purposes of grant of bail to the co-accused---Said property was allegedly not in the name of the accused---Contentions of accused were that property in question belonged to his father and after his death, he had applied for a change of khata but the concerned Tapedar, etc. had not changed the khata; that under the law of inheritance he became co-owner of the property the moment his father breathed his last, and that recording of change of khata was merely an administrative act---Validity---Prosecution conceded that by operation of law accused became owner of the property in question and non-recording his name in the khata was the fault of the Revenue Authorities---Bail application of accused and co-accused was allowed and bail already granted to them was confirmed, in circumstances.

Manzoor Hussain N.Larik for Applicants.

Zulfiqar Ali Jatoi D.P.-G. for the State.

Date of hearing: 19th March, 2012.

2012 Y L R 1899

[Sindh]

Before Aqeel Ahmed Abbasi, J

TANZIM KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-855 of 2011, decided on 23rd April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 489-F/ 506(2)/ 147/ 148/ 149---Dis-honestly issuing a cheque, criminal intimidation, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---F.I.R. against accused and his co-accused was registered after complainant filed an application under Ss. 22-A & 22-B, Cr.P.C, before the Justice of Peace---Contentions of the accused were that he had neither been nominated nor assigned any role in the said application filed by the complainant; that disputed cheques were issued by the co-accused who had absconded; that accused had neither issued the cheques nor he had anything to do with the alleged offence, and that no recovery had been effected from the accused---Validity---Complainant had neither nominated nor assigned any role to the accused in the application filed under S.22-A & 22-B, Cr.P.C---Record showed that there was a delay of twenty seven(27) days in moving the said application and a delay of forty two (42) days in registration of the F.I.R.---Consultation and false involvement of the accused could not be ruled out---Disputed cheques had not been issued by the accused---Case required further inquiry---Accused was admitted to bail, in circumstances.

Shahzad Waseem and another v. The State 2007 YLR 1378 and Rizwan Hanif and 2 others v. The State 2010 YLR 888 ref.

Tariq Ahmed Shah and Mahboob Ellahi for Applicant.

Ashfaque Ali Khaskheli for the Complainant.

Syed Meeral Shah Deputy Prosecutor General Sindh.

2012 Y L R 1903

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ZAHID and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.692 of 2011, decided on 25th August, 2011.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 376/380/506/34---Rape, theft in dwelling house, etc., criminal intimidation, common intention---Bail, grant of---Further inquiry---Allegation against accused persons (sons-in-law) was that at the instance of their mother-in-law, they committed zina with the victim, who was also their sister-in-law---Contention of accused persons was that they had been falsely implicated in the case due to enmity between the parties as their brother-in-law had divorced the alleged victim , and that offence alleged in the F.I.R. did not sound logical as accused being sons-in-law would not commit zina in presence of their mother-in-law--- Validity--- F.I.R. was lodged after a delay of four months---No material was available with the prosecution which could support the presence of the accused persons at the scene on the date of occurrence, except for the statement of the victim's father in the F.I.R.---Both the parties had strained relations as brother-in-law of the accused persons had divorced the alleged victim---False implication of accused persons, in circumstances, could not be ruled out---Statement of victim was recorded after six (6) months of the alleged incident---Alleged crime had been committed with the victim at a time when her marriage was subsisting but she did not disclose the alleged offence either to her husband or any member of the family---Case required further inquiry in terms of S. 497(2), Cr.P.C---Bail applica-tion of accused persons was allowed and they were admitted to bail.

Nasir Mehmood Mughal and Mehmood Khan for Applicants.

Abdullah Rajput, A.P.-G. for the State.

2012 Y L R 1918

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Tasnim, JJ

Mst. AAISHA alias USHA and another---Petitioners

versus

BANJE RAM and 8 others---Respondents

Constitution Petition No.D-391 of 2012, decided on 10th April, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner who was Hindu sought protection against harassment by her relatives after embracing Islam and contracting marriage with Muslim boy----Petitioner girl recited Kalma-e-Tayyab in court and stated that she being sui juris and after embracing Islam, had contracted marriage with the other petitioner out of free-will and that she had not been abducted by anyone---High Court directed the concerned SHO police to provide protection to the girl and observed that she was at liberty to go with her husband and live her life as per her own choice and free-will---Constitutional petition was disposed of accordingly.

Rao Faisal for Petitioners along with Petitioners in person.

Allah Bachayo Soomro A.G. Sindh along with Inspector Ali Muhammad Khoso, S.H.O. Police Station Chhachhro for Respondents.

2012 Y L R 1937

[Sindh]

Before Muhammad Tasnim, J

REHMAT ALI---Applicant

Versus

THE STATE---Respondent

Bail Application No.900 of 2011, decided on 22nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Allegation against accused and his co-accused was that they stabbed the injured with a dagger due to a monetary dispute with him---Contentions of accused were that no overt act had been attributed to him; that direct allegation for stabbing the injured was made against the co-accused only, and that accused had been falsely implicated in the case as there was no material available with the prosecution to connect him with the commission of the offence---Validity---Prosecution conceded that no material was available to connect the accused with the commission of the offence, therefore, case against accused required further inquiry in terms of S. 497(2), Cr.P.C---Bail application of accused was allowed and he was admitted to bail, accordingly.

Naheed M. Sultana for Applicant.

Muntazir Mehdi A.P.-G. for the State

2012 Y L R 1945

[Sindh]

Before Shahid Anwar Bajwa, J

ABDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-194 of 2011, decided on 19th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act---Bail, refusal of---Acquittal of co-accused was of no help to the case of accused as co-accused was acquitted on cogent reasons which were absent in the case of accused---Accused who remained absconder for 8 years, had lost some of his rights---As many as 37 empties had been recovered and challan had been filed---Bail was refused, however, interest of justice would be served if direction was given to the Trial Court to expeditiously proceed with the trial and decide the matter within two months.

Sher Ali alias Sher v. The State 1998 SCMR 190 and Jalaluddin v. The State 1996 MLD 204 distinguished.

Faiz Muhammad Larik for Applicant.

Ameer Ahmed Narejo, State Counsel.

2012 Y L R 1988

[Sindh]

Before Shahid Anwar Bajwa, J

RABBAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.780 and 277 of 2011, decided on 5th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ '147/ 148/ 149/ 504/ 427/ 337-H(2)---Qatl-a-amd, attempt to commit qatl-e-amd, intentional insult,' mischief, causing hurt by rash or negligence act---Bail, grant of---Ipse dixit of Police was not binding on court at bail stage or even on . final stage of the case--Fact that accused was found innocent by the Police was of no help to accused---Accused was- alleged to be armed with gun, but no empty had been recovered and no gunshot wound was alleged to have been received by any of deceased or injured person---Co-accused was alleged to have been armed with Kalashnikov, but it was not alleged that he fired. at any person, either the injured or the deceased---All that was alleged, was that he had fired in air along with others---Besides, the fact that no injury was attributed to any of the accused, in presence of 14 Kalashnikovs, with four separate instances of firing and only 15 empties recovered, had created doubt, benefit of which should be extended to the accused---Accused were admitted to bail, in circumstances.

Ali Akbar v. The State SBLR 2011 Sindh 1; Muhammad Murad and others v. The State 2009 SCMR 348; Muhammad Ramzan v. Rahib and others PLD 2010 SC 585; Master Ghulam Muhammad and others v. The State 2010 ML'D 877; Masood v. The State 2010 PCr.LJ 600; .Mamaras v. The State PLD 2009 SC 385 and Shoukat Illahi v. Javed - Iqbal 2010 SCMR 966 distinguished.

Manzoor Ahmed Junejo for Applicant (in Criminal Bail Application No.780 of 2011).

Zulfiqar Ali Sangi for Applicant (in Criminal Bail Application No.277 of 2011).

Zulfiqar Ali Jatoi D.P.-G. for the State.

2012 Y L R 2026

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

TANVEER alias RABAIL and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-71, Criminal Appeals Nos.D-72, D-73 and Confirmation Case No. 2 of 2010, decided on 9th May, 2012.

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

----Ss. 302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---No name of any close co-villager or independent witness was mentioned in the evidence who allegedly went with the complainant at the appointed time---No mashirnama for the recovery of dead body was prepared on the spot---F.I.R. was lodged two days after recovery of dead body of the deceased---Deceased was missing since 9-9-2005, but no F.I.R. was lodged till 15-9-2005---No chemical report was produced which could show that any blood-stained earth was collected; and human blood was found---All prosecution witnesses being relatives of the complainant, possibility of their being interested, could not be ruled out, especially in the circumstances when there was no eye-witness of murder, except last seen evidence---Mashirs of recovery were not independent persons---When the whole case was based on last seen evidence, the evidence of the mashir of recovery was also doubtful and seemed to be interested---Prosecution had failed to substantiate the charge and committed various lapses while investigating the case---Evidence of the prosecution witnesses was neither trustworthy or confidence inspiring nor consistent to establish accusation against accused---Possibility of accused being falsely implicated, could not be ruled out, in circumstances---Prosecution had failed to prove the case against accused persons beyond reasonable doubt---Conviction of accused persons was set aside, they were set at liberty, in circumstances.

Imam Ashraf v. The State 2001 SCMR 424; Muhammad Shah v. The State 2010 SCMR 1009; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Liaquat Ali v. The State 2007 SCMR 1307; Naeem Akhtar v. The State 1993 PCr.LJ 769; Abdul Kaleem v. The State 1992 PCr.LJ 1314; Ibrahim v. The State 1990 SCMR 407; Nadeem alias Nema v. State 2010 SCMR 949 and Ali Asgher v. The State 2004 PCr.LJ 1308 ref.

Mubashir Ahmed v. The State 2009 SCMR 1133; Dilawar Hussain v. State PLD 2008 SC 123; Azizullah v. The State 2004 PCr.LJ 1710; Muhammad Azim v. The State 1998 PCr.LJ 175; Gulzar Ahmed v. The State 2002 SCMR 596; Muhammad Akram v. The State 2011 SCMR 145; Muhammad Latif v. The State PLD 2008 SC 503; Faisal Aleem v. The State PLD 2010 SC 1080 and Muhammad Ajmal v. The State through Advocate General, Punjab PLD 2003 SC 1 distinguished.

SBLR 2011 Sindh 1653 and SBLR 2012 Sindh 208 rel.

(b) Criminal trial---

----Reappraisal of evidence---Scope---Reappraisal of evidence in a criminal case meant that if the witness was trustworthy and reliable, then conviction could safely be based on his evidence.

(c) Criminal trial---

----Recovery---Joint recovery and evidence in respect thereof being inadmissible, could not be used against the accused.

(d) Evidence---

----Two interpretations of evidence---Scope---When there were two interpretation of evidence one favouring the accused and the other the prosecution, the one favourable to accused, was required to be taken into consideration.

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

----S. 342---Examination of accused---Scope---All incriminating pieces of evidence available on record in examination in chief, cross-examination or re-examination of witnesses, were required to be put to accused, if same were against him while recording his statement under S.342, Cr.P.C.

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

----S.302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---Circumstantial evidence---Sentence---Death sentence, could be awarded to accused on circumstantial evidence, provided the circumstances constituted a continuous chain without missing any link, combined effect of which would establish the guilt of accused beyond any shadow of doubt.

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

----S.302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---Last seen evidence was a weakest type of evidence, unless corroborated with some other piece of evidence.

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

----S.302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---All the pieces of evidence should be so linked that it should give picture of complete chain, one corner of which should touch the neck of the deceased; and other corner of the neck of the accused---Failure of one link would destroy the entire chain---Prosecution was obliged to prove the case against accused beyond any shadow of doubt, even if accused failed to furnish explanation for disappearance of deceased who had been seen along with accused before his death---Evidence was one of the recognized modes, having origin from Islam, for finding out the guilt or innocence of an accused---Such evidence, if would appeal to logic and reason, then the same would be a sufficient piece of evidence to connect accused with commission of offence and capital punishment could be awarded on its basis--Grain should be sifted from the chaff so as to arrive at the truth of the occurrence---Evidence to be appraised in entirety to sift grain from the chaff---Benefit of all favourable instances in the prosecution evidence must go to accused regardless of whether he had taken any such plea or not.

(i) Criminal trial---

----Benefit of doubt---Rule of benefit of doubt, described as the golden rule, was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law---Rule was based on maxim "it was better that ten guilty persons be acquitted rather that one innocent person be convicted"---Said rule occupied a pivotal place in the Islamic Law and that was enforced rigorously, in the saying of the Holy Prophet (PBUH) "than the mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent"---Both the expressions "proof beyond a reasonable doubt" and "presumption of innocence", were to be read together as one unit---Single infirmity, if creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, would make whole case doubtful---Accused was the most favourable child of law and every benefit of doubt would go to him regardless of fact whether he had taken any such plea or not.

2009 SCMR 135; 2008 SCMR 1103; 2007 SCMR 486; 2007 SCMR 778; PLD 1973 SC 418; 2011 SCMR 664 and 20058 SCMR 1086 rel.

Maqbool Ahmed Awan for Appellant No.1 (in Criminal Jail Appeal No.D-71 of 2010 and Criminal Appeal No.73 of 2010).

Zulfiqar Ali Sangi for Appellant No.2 (in Criminal Appeal No.D-72 of 2010).

Ghulam Shabeer Shar for the Complainant.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

Date of hearing: 11th January, 2012.

2012 Y L R 2061

[Sindh]

Before Syed Hasan Azhar Rizvi, J

GHULAM FAREED---Applicant

Versus

THE STATE---Respondent

Bail Application No.347 of 2012, decided on 14th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/ 353/ 392/ 397/ 34---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, robbery or dacoity, with intent to cause death or grievous hurt, common intention---Bail, refusal of---Contentions of the accused were that he had been falsely implicated in the present case by the complainant in connivance with the police; that one of the co-accused had some business dealings with the complainant and due to a business dispute, the accused and co-accused had been implicated in the case; that contents of F.I.R. established that cross firing took place between the accused persons and the police but neither any police official or accused person sustained any injury nor the police vehicle was damaged, and that several mobile phones were allegedly recovered from the accused persons but details of their mobile numbers and Subscriber Identity Modules (SIMs) had not been mentioned in the F.I.R.---Validity---Accused was arrested from the spot and an unlicensed weapon loaded with a magazine containing bullets was recovered from his possession---Other articles had also been recovered from the accused---F.I.R. was promptly registered and accused had been nominated therein---Tentative assessment of the material available on record showed that accused had failed to make out a case for grant of bail and nothing had been brought on record to disbelieve the version of the prosecution---Bail application of the accused was dismissed with a direction to the Trial Court to conclude the trial within a period of three months.

Ghazi Khan v. The State 2012 YLR 178 and Asif v. The State 2012 YLR 211 ref.

Muhammad Ramzan Tabbasum for Applicant.

Seema Zaidi learned State Counsel.

Date of hearing: 13th April, 2012.

2012 Y L R 2122

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Mir MUHAMMAD BUGHIO and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-67 and Criminal Appeal No.S-81 of 2007, decided on 31st May, 2012.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd, rioting---Appreciation of evidence---Six injuries on the vital parts of the body of the deceased, were the cause of death of the deceased according to the Doctor---Medical evidence corroborated with the time of the alleged incident---F.I.R., showed that accused was armed with hatchet and he gave repeated hatchet blows to the deceased---No contradiction was found in the statements of the prosecution with regard to time of occurrence and injuries on the body of the deceased---F.I.R. and evidence of all the three witnesses in the court were consistent so far as the accused was concerned---Minor contradictions in their statements, were of no consequence, which could not cause doubt in the story of the prosecution---Motive, which was a matrimonial affair of the deceased with accused party was proved---Non-recovery of weapon of offence, which was a hatchet, from accused, was only a corroborative piece of evidence and factum of recovery or non-recovery, could not be decisive, especially in the case when the weapon of offence alleged to be a hatchet--No material improvement had been made as far as role of accused was concerned---Prosecution had successfully established beyond any reasonable doubt that accused was guilty of giving repeated hatchet blows to the deceased when he was lying after having been injured by firearms and injuries caused by hatchet---Role of co-accused was identical to that of accused, the allegation was the same, the weapon was the same and the injuries were the same, on the same part of the body of the deceased---Non-production of Roznamcha entry was of no consequence---Appeals of accused and co-accused were dismissed in circumstances---Allegation against second co-accused was in respect of firing from his gun---Gun was recovered when said co-accused led the Police party to his house and from there he produced a gun with four live cartridges---Gun and the cartridges were sent to the Forensic Science Laboratory, which reported that empty cartridges were fired from the gun so recovered---Case against said co-accused was proved beyond reasonable doubt---Appeal of said co-accused, was also dismissed.

Jahangir v. State 1999 PCr.LJ 1254; Khadim Hussain v. State 2010 YLR 2919; Muhammad Rafique v. State 2010 SCMR 385 and Muhammad Akram v. State 2009 SCMR 230 ref.

PLD 1966 Dacca 144; PLD 1964 Dacca 566; PLD 1969 Lah. 259; PLD 1969 Pesh. 1; PLD 1967 Kar. 242; 1988 CLC 1408 and Muhammad Hanif v. The State PLD 1993 SC 895 rel.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd, rioting---Appreciation of evidence---Benefit of doubt---Accused was not named in the F.I.R., while his four co-accused were so named---Though it was claimed that blood stained hatchet, was recovered at the pointation of said accused, but said recovery was merely a corroborative piece of evidence---If a single doubt was created, then benefit of said doubt should be given to accused---Appeal was allowed in respect of said accused and he was ordered to be released.

Deewan Dhan Raj for Appellant (in Criminal Appeal No.S-81 of 2007).

Ghulam Murtaza Korai for Appellants except Appellant Mir Muhammad (in Criminal Jail Appeal No.S-67 of 2007).

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

Date of hearing: 9th April, 2012.

2012 Y L R 2136

[Sindh]

Before Syed Hasan Azhar Rizvi, J

AAMIR SHEIKH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.142 to 146 of 2012, decided on 14th April, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.409/ 420/ 468/ 471/ 109/ 34--- Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, common intention---Bail, refusal of---Allegation against accused and his co-accused was that they in collusion with each other obtained huge amounts from numerous complainants (customers) in the name of a "Guaranteed Income Policy" of the company and promised to pay monthly profit to all of them---Monthly profits were paid to the complainants for two to three months, whereafter the company office was closed--Contentions of the accused (Assistant Branch Manager of the company) were that he had been falsely implicated in the case by the police and investigation agencies; that offence with which he was charged did not fall under the prohibitory clause of S. 497, Cr.P.C.; that no specific allegation had been levelled against him; that the main accused of the case was already granted ad interim pre-arrest bail by the court below, and that entire case against the accused was based on documentary evidence, which was in the possession of the prosecution and there was no possibility of tampering with the same if accused was enlarged on bail---Validity---Complainants made payments through cross-cheques to the accused and the co-accused against which accused issued written receipts of the said payments, which bore his signatures---Complainants received monthly profits for two or three months only---Material available on record prima facie established that the accused and co-accused in collusion with each other deprived the innocent public and society from their earnings amounting to millions of rupees and they were engaged in the illegal business of parallel banking, cheating and making money by adopting fraudulent and corrupt means because of which accused did not deserve the discretionary relief of bail---Grant of bail to the accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C, was not a rule of universal application and each case had to be dealt with on its own merits---Ad-interim pre-arrest bail granted to the main accused of the case had not been confirmed as yet, therefore rule of consistency was not applicable in the present case---Contention of accused that there was no likelihood of tampering with the prosecution evidence was not attracted to the present case because of the nature of the offence committed by the accused and co-accused---Bail applications of accused and co-accused were dismissed, in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170; Saeed Ahmed v. The State 1996 SCMR 1132; Wasi Ahmed v. The State 2010 YLR 2299; Abdul Wahid Bandkukda and others v. The State 2008 YLR 767; Noor Muhammad v. The State 1990 PCr.LJ 732; Abdul Jalil Khan v. The State 1998 MLD 202 ref.

Shameel Ahmed v. The State 2009 SCMR 174; Ijaz Ahmed v. Muhammad Aslam 2009 PCr.LJ 1140; Raja Muhammad Zarat Khan v. The State PLD 2007 Kar. 27 and Syed Maqsoom Hussain Shah v. The State 2007 PCr.LJ 171 rel.

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

----S. 497(1)---Penal Code (XLV of 1860), Ss. 409/ 420/ 468/ 471/ 109/ 34---Bail---Principles---Offences which do not fall within the prohibitory clause of S. 497(1), Cr.P.C---Scope---Grant of bail to the accused in every case not hit by the prohibitory clause of S. 497(1), Cr.P.C, was not a rule of universal application and each case had to be dealt with on its own merits---Court might decline bail to an accused even if the offence did not fall under the prohibitory clause of S. 497(1), Cr.P.C, if there existed recognized exceptional circumstances.

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

----S. 497(1)---Penal Code (XLV of 1860), Ss.409/420/468/471/109/34---Bail---Principles---Offences affecting the society which do not fall within the prohibitory clause of section 497(1), Cr.P.C---Scope---For the purpose of bail distinction was to be made between an offence which was committed by an individual and an offence which was committed against the whole society, as in the former category practice to allow bail in cases not falling under the prohibitory clause of S. 497, Cr.P.C, in the absence of exceptional circumstances, might be followed; but in the latter category, the courts were to be strict in exercise of discretion of bail---For cases affecting the whole society, the accused belonged to a distinct class and fell within exceptional circumstances warranting refusal of bail even where maximum sentences for the offence was less than ten (10) years, provided the court was satisfied that prima facie there was material on record to connect the accused with the commission of the offence.

Shameel Ahmed v. The State 2009 SCMR 174; Ijaz Ahmed v. Muhammad Aslam 2009 PCr.LJ 1140; Raja Muhammad Zarat Khan v. The State PLD 2007 Kar. 27 and Syed Maqsoom Hussain Shah v. The State 2007 PCr.LJ 171 rel.

Abdul Mujeeb Pirzada for Applicant.

Sadaqat Ali Khan learned Standing Counsel along with Inspector Ali Murad and S.-I. Rizwan of FIA, Corporate Crime Circle, Karachi.

Date of hearing: 9th April, 2012.

2012 Y L R 2162

[Sindh]

Before Shahid Anwar Bajwa, J

SHER MUHAMMAD UNAR---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.50 of 2012, decided on 18th April, 2012.

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

----Ss. 190 & 191---Cognizance of offences by Magistrates and transfer of case on an application of accused---Scope and applicability of Ss. 190 & 191, Cr.P.C. and procedure stated.

Abus Sattar Molla v. The Crown PLD 1953 FC 145; Abdul Razzaq Butt v. Kalsoom Bibi 1999 MLD 30; Nga Chan Tha v. Emperor AIR 1923 Rangoon 31; Intaj Khan v. Emperor AIR 1934 Rangoon 193 and Babu and 3 others v. The State 1969 PCr.LJ 226 ref.

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

----Ss. 190, 191 & 193---Penal Code (XLV of 1860), Ss.302/324/109/34---Anti-Terrorism Act (XXVII of 1997), Ss.12, 13 & 32---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.3, 4 & 10---Application filed under S.193, Cr.P.C. had been decided in favour of complainant and ultimately an option was given by Supreme Court to the accused to have a right to approach the Trial Court for recall of the order---Said order was recalled by consent to the effect that application under S.193, Cr.P.C. would be treated as pending and would be taken up after recording evidence---No evidence had been discussed by the court in the order nor made a basis of the impugned order, clause (c) of subsection (1) of S.190, Cr.P.C. therefore, was not applicable---Trial Court was not a court of Magistrate or a court of Sessions Judge, but was a court of Special Judge (STA)---Jurisdiction under Anti-Terrorism Act, 1997, was specific and limited for a specified area and provisions of said Act had overriding effect over the provisions of Criminal Procedure Code, 1898---Provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and those of S.191, Cr.P.C. had no applicability---Revision petition was dismissed.

Abus Sattar Molla v. The Crown PLD 1953 FC 145 distinguished.

Muhammad Riaz v. The State 1983 SCMR 816; Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others PLD 1967 Lah. 1045; Abdul Ghafoor v. The State 1997 PCr.LJ 953; Abdul Razzaq Butt v. Kalsoom Bibi 1999 MLD 30; Nga Chan Tha v. Emperor AIR 1923 Rangoon 31; Intaj Khan v. Emperor AIR 1934 Rangoon 193 and Babu and 3 others v. The State 1969 PCr.LJ 226 ref.

M. M. Aqil Awan Riaz Ahmed Abbasi and Ms. Bensih Qureshi for Applicant.

Complainant in person

Saleem Haider A.P.-G. for the State.

Date of hearing: 16th March, 2011.

2012 Y L R 2204

[Sindh]

Before Ahmed Ali M. Sheikh, J

MUMTAZ ALI and another---Applicants

Versus

THE STATE---Respondent

M. A. No. 9358 in Criminal Appeal No.428 of 2011, decided on 16th April, 2012.

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

----S. 426---Penal Code (XLV of 1860), Ss. 452/ 337-A(i)/ 337-A(ii)/ 337-A(iii)/ 337-L(2)/337-F(vi)---House trespass after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, other hurt, ghayr-jaifah-munaqqillah---Suspension of sentence---Contentions of the accused and co-accused were that parties were inimical to each other as there was a dispute between them over agricultural land and litigation in respect thereof was pending in the court; that all the prosecution witnesses were inimical and interested witnesses, therefore, their testimony without corroboration of independent evidence could not be made basis of the impugned conviction; that there were general allegations against the accused and no specific role had been attributed to him; that Trial Court had absolved the accused and co-accused of the charge of dacoity/robbery, in view of which they could not be convicted under S. 452, P.P.C, and if the sentence awarded under S. 452, P.P.C was excluded, they at the most could be awarded a much lesser sentence or could be directed to pay daman to the victims---Validity---Trial had concluded that neither dacoity nor robbery was committed by the accused and co-accused, therefore, no conviction could be awarded to them under S. 452, P.P.C---No specific role had been attributed to the accused but the co-accused had been assigned with a specific role---Accused had remained on bail during the trial---Counter case was registered against the complainant party, in which case the Trial Court had acquitted them, but appeal against their acquittal had been admitted for regular hearing by the High Court---Complainant had contended that it would be proper if said appeal against acquittal and present appeal were heard together, but keeping in view the backlog of cases, chances that present appeal would be heard and decided in the near future were very remote---Application for suspension of sentence was partly allowed to the extent of the accused but dismissed to the extent of the co-accused---Conviction and sentence awarded to the accused was suspended and he was released on bail.

Mukaram-ul-Haq v. National Accountability Bureau 2006 SCMR 1225; Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 and Abdul Rehman v. State 2008 1381 ref.

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

----S. 426---Application for suspension of sentence during pendency of appeal---Appreciation of evidence---Scope---For an application pertaining to suspension of sentence during pendency of appeal deeper appreciation of evidence available on record could not be undertaken and only tentative assessment of evidence could be made.

Mehmood A. Qureshi and Jamshed Iqbal for Applicants.

M.A. Kazi for the Complainant.

Abdur Rehman Kolachi, A.P.-G. for the State.

2012 Y L R 2224

[Sindh]

Before Muhammad Tasnim, J

BAKHIT NAWAB---Applicant

Versus

THE STATE---Respondent

Bail Application No.1034 of 2011, decided on 30th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Further inquiry---Allegation against accused that he had threatened to kill the deceased fifteen to twenty days before his murder, if deceased married a certain lady---Validity---No material was available with the prosecution to substantiate such allegation in the F.I.R.---Incident was unseen and no material was available on record to connect the accused with the commission of the offence---No recovery had been effected from the accused---Inordinate delay in lodging F.I.R. had not been explained---Statement of complainant had not been recorded due to his absence---Case against accused required further inquiry in terms of S. 497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Ajab Khan Khattak for Applicant.

Ms. Rahat Ahsan, D.P.-G. for the State along with Sub-Inspector Chaudhry Waris Ali of Police Station Jackson.

2012 YLR 2241

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD HASHIM KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.580 of 2011, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Pre-arrest bail, grant of---Incident was unseen---None of the prosecution witnesses had linked the accused with the crime---Three prosecution witnesses including the complainant had filed their affidavits stating that accused had no concern whatsoever with the occurrence and that they had no objection if he was granted bail---Presently, nothing was present on record to connect the accused with the commission of offence---Interim pre-arrest bail allowed to accused was confirmed in circumstances.

Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137; Muhammad Nawaz v. The State 1991 SCMR 11; Noor Muhammad v. The State 2008 SCMR 1556; Tahir Abbas v. The State 2003 SCMR 426; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Mitho Pitafi v. The State 2009 SCMR 2969; Syed Zahid Ali v. The State 1993 PCr.LJ 1489; Muhammad Ashraf v. The State 2000 PCr.LJ 2080 and Naseer Ahmed v. The State 1997 SC 347 ref.

Saifullah for Applicant.

Imtiaz Ali Jalbani, A.P.-G. for the State .

2012 YLR 2246

[Sindh]

Before Salman Hamid, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD ZUBAIR and 2 others---Respondents

Constitutional Petition No.S-818 of 2010, decided on 22nd December, 2011.

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

----Ss.18 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Relationship of landlord and tenant, denial of---Courts below concurrently dismissed the ejectment petition on the ground that the petitioner was not the landlord of the premises---Contention of the petitioner was that the premises were purchased by him from the previous owner vide conveyance deed and notice under S. 18 of the Sindh Rented Premises Ordinance, 1979 regarding change of ownership was also sent to the tenant---Validity---Petitioner based on the conveyance deed had become owner of the premises and became entitled to the benefit thereof which also included rent from the tenant---Tenant was served with a notice regarding change of ownership and the tenant failed to make payment of rent and also sublet the premises---Tenant, after learning about the change of ownership was duty bound to tender rent to the petitioner---Filing of the ejectment case was also a notice enough for the tenant to tender rent to the petitioner---Tenant brought nothing on record to show that his mother-in-law had marketable title in the premises as claimed by him---Registered document in itself was a notice to the public at large and upon coming into being of a conveyance deed, in law, it was deemed that the tenant was in knowledge of the change of ownership of the premises---High Court set aside concurrent findings of the courts below---Constitutional petition was allowed, accordingly.

(b) Constitution of Pakistan---

---Art. 199---Constitutional Jurisdiction of High Court---Scope---High Court, in a given case, could exercise jurisdiction under Article 199 of the Constitution if wrong or illegal conclusion was drawn by the courts below which was not based on fact or if High Court found such act that would amount to an error of law that could be corrected by the High Court .

K.B. Bhutto for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd December, 2011.

2012 YLR 2254

[Sindh]

Before Muhammad Athar Saeed, J

KARACHI ELECTRIC SUPPLY COMPANY LTD. Through Chief Executive Officer---Applicant

Versus

Messrs ABS COMPANY through owner---Respondent

Civil Revision Application No.95 and C.M.A. No.1895 of 2011, decided on 16th September, 2011.

Electricity Act (IX of 1908)---

----Ss. 54(c) & 24(1)---Bar on jurisdiction of the Courts----Scope---Electric Supply Company assailed orders of the Electric Inspector whereby company was required to restore the electricity connection of the respondent---Contention of the Electric Supply Company was that no civil court would adjudicate upon a dispute arising from the issuance of notice under S. 24(1) of the Electricity Act, 1908 in view of the bar under S. 54(c) of the Act---Validity---Jurisdiction of the court had been barred in cases where a licenser gave notice under S. 24(1) of the Act or discontinued supply of electricity to a premises under provisions of the Act---Where the action had been initiated under good faith, such jurisdiction was barred and if it was proved to the satisfaction of the court that a action smelled of mala fide, then the courts would exercise their justification---Electric Supply Company , despite orders of the Electric Inspector and the Trial Court, had not yet restored electricity to the respondent, which smelled of mala fide and, therefore, S. 54(c) of the Electricity Act, 1908 would not apply---High Court directed that the electricity supply be restored to the respondent---Revision was dismissed.

Karachi Electric Supply Corpora-tion Limited through Secretary v. Messrs Haji Hashim Haji Ahmed Brothers 2003 YLR 2226; 2010 CLC 436 and 2004 SCMR 1679 and Multan Electric Powers Company Ltd. v. Muhammad Ashiq and another PLD 2006 SC 328 distinguished.

Khalid Mehmood Dhoon for Appellant.

Naveed Ahmed for Respondents.

2012 YLR 2266

[Sindh]

Before Syed Hasan Azhar Rizvi, J

SHAZIA AKBAR---Petitioner

Versus

MAQSOOD AHMED and another---Respondents

Constitutional Petition No.S-32 and C.M.A No.120 of 2012, decided on 25th May, 2012.

Guardians and Wards Act (VIII of 1890)---

----Ss. 25, 47 & 12---West Pakistan Family Courts Act (XXXV of 1964) Ss. 25 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability----Interlocutory order for granting interim custody of minor----Constitutional petition was not maintainable when the scope of the appeal against order passed by the Family Court existed before the District Court , and not the High Court as provisions of the West Pakistan Family Courts Act, 1964 had an overriding effect on the provisions of the Guardians and Wards Act, 1890---Under the proviso to the S.47 of the Guardians and Wards Act, 1890 such appeal would lie before the District Court, and no Constitutional petition would lie before the High Court---Family Court would not only have exclusive jurisdiction to decide matters relating to the custody of children and guardianship, but would also be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890 and appeal against order passed by Family Court would lie to the District Court under S.14 of the West Pakistan Family Courts Act, 1964, when the Family Court was presided over by a Judge subordinate to a District Court Judge---Aggrieved person could file Constitutional Petition in the High Court when the findings of the District Court were based on misreading and non-reading of evidence, erroneous assumption of law and fact or was founded on considerations which were extraneous to the record---High Court had no jurisdiction in cases dealt under the West Pakistan Family Courts Act, 1964 or those under the Guardians and Wards Act, 1890 by virtue of S. 25 of the West Pakistan Family Courts Act, 1964---Constitutional petition was dismissed in circumstances.

Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mst. Firdous Iqbal v. Shifaat Ali 2000 SCMR 838; Mst. Azizan Bibi v. District Judge Badin 1995 CLC 614; Mst. Misbah Rubeena v. Ali Quli Amin-ud-Din 2003 YLR 2528; Sheikh Waseem Ahmed v. Mst. Wazir Begum 2005 CLC 1755; Mst. Tahira v. Additional District Judge Rawalpindi 1990 SCMR 852 and Mrs. Ghazala Yamin v. Muhammad Yamin 1987 MLD 2940 ref.

Zahid F. Ebrahim for Petitioner.

Salahuddin Ahmed for Respondent No.1.

Date of hearing: 12th May, 2012.

2012 YLR 2272

[Sindh]

Before Faisal Arab, J

CIVIL AVIATION AUTHORITY through Director-General and another---Applicants

Versus

AFZALUR RAHMAN and 14 others---Respondents

Revision Applications Nos.92 of 2006, 201 of 2010 and 201 of 2011, decided on 20th February, 2012.

Land Acquisition Act (Act I of 1894)----

----Ss. 12 & 25---Specific Relief Act (1 of 1877) S. 42---Suit for declaration challenging validity of survey numbers and alleging non-payment of compensation in the acquisition of land by the Authority was decreed concurrently---Validity--Admitted position was that Award was passed in 1971 mentioning ' all survey numbers and. thereafter the same were mutated in the name of the Authority in the revenue record---Revenue record produced by the plaintiffs showed discrepancies as all three survey numbers were neither collectively mentioned in Form-VII or in the Passbook---Allegation of dispossession during pendency of the suit made by the plaintiff was only of a general nature and the manner in which the alleged dispossession was carried out was not stated and was taken to avoid the _ legal effect of limitation---Notification of compensation was to be published by the provincial government and was to be paid through the provincial exchanger; and the Province was not made a party to the suit---Award reflected that compensation had been paid for the impugned survey numbers and the land was taken for the Airport in 1965 and Award was passed in 1971 with the payment for compensation having been made to the owners---Claim of the plaintiffs was also barred by time---Orders of the courts below were set aside---Revision was allowed, accordingly.

2010 SCMR 115 ref.

Imdad Ali R. Unar for Applicants.

Muhammad Munawar for Private Respondents.

Allah Bachayo Soomro, Additional A.G. Sindh.

2012 YLR 2280

[Sindh]

Before Muhammad Tasnim, J

SHABAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-276 of 2010, decided on 5th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hadd) Ordinance (VI of 1979), S.17(3)(4)---Penal Code (XLV of 1860), S.337-H(2)---Haraaba, rash and negligent act to endanger human life---Bail, grant of---Delay in trial---Not a single prosecution witness had been examined despite lapse of four years---Co­-accused had been released on bail--Prosecution witnesses were not in attendance at times---Delay on the part of prosecution could not serve as an excuse to put an under-trial-prisoner behind the bars indefinitely---Delay in conclusion of trial being shocking and scandalous, accused was entitled to the concession of bail---Accused was granted bail with direction to Trial Court to conclude the trial within three months.

Ghulam Abbas alias Abasi and others v. The State PLD 2005 Kar. 255; Gul Beg alias Nangi v. The State 2005 PCr.LJ 147 and Aarab alias Katoo v. The State'2005 PCr.LJ 555 rel.

A.R. Farooq Pirzada for Applicant.

Zulfiquar Ali Jatoi D.P.G. for the State.

2012 YLR 2298

[Sindh]

Before Muhammad Tasnim, J

KHAIR MUHAMMAD alias KHAIRO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-571 of 2010, decided on 2nd September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of----Benefit of doubt---F.I.R. showed that two Kgs. of Charas was recovered, whereas report of the Chemical Examiner had shown that packet contained only 1700 grams of Charas---Such discrepancy in the substance of the F.I.R. and Chemical Examiner's report had extended benefit of doubt to accused---Delay of four days in forwarding entire packet containing Charas to the laboratory for chemical examination, was fatal to the prosecution and benefit thereof would be 'extended to accused---Accused was admitted to bail, in circumstances.

Hakeem Jamali v. The State 2009 PCr.LJ 695; Akhtar Ali v. The State 2009 PCr.LJ 50; Rayasat Ali v. The State 2005 YLR 1862 and Qutubuddin v. The State 2009 PCr.LJ 1340 ref.

Wazir Ali Ghoto for Applicant.

Shyam Lai, Assistant Prosecutor General for the State.

2012 YLR 2337

[Sindh]

Before Shahid Anwar Bajwa, J

MEHBOOB and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1068 of 2010, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)/ 337-A(ii)/ 337-F(i)/ 504--Causing hurt and intentional insult---Pre­arrest bail, refusal of---Husband, father in law and two brothers-in-law of the injured victim woman had allegedly given her repeated "Sota" blows almost at the door side of her home---Medical certificate of the victim and the injury on her head had supported the incident---Injury on the head of the victim was punishable with five years' R.I.---Case was of maltreatment of wife who could not falsely implicate her husband and, prima facie, it seemed impossible and implausible---Injury to self respect, self image and psyche of a wife in such like cases was certainly immeasurable---Pre-arrest bail was disallowed to accused in circumstances.

Zaheer Ahmed Khan v. The State 2003 SCMR 919 distinguished.

Manzoor Ahmed Junejo and Shahid Ali Memon for Applicants

Zulfigar. Ali Jatoi, D.P.-G; for Respondent.

2012 YLR 2342

[Sindh]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

ASIF KUDIA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.405 of 2012, decided on 9th Mach, 2012.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.409/ 420/ 109/34/ 477-A---Criminal breach of trust by banker, merchant or agent, cheating and dishonestly inducing delivery of property, abetment, common intention, falsification of accounts---Bail, grant of--Allegation against the accused [alleged director of a company (brokerage house) dealing in securities] was that he in connivance with the co-accused and different banks unauthorized and illegally, pledged shares of various clients, including those of the complainant, to secure finances for the company, and as a consequence of default committed by the company, the banks sold the . pledged shares causing colossal losses to the complainant and other clients of the company---Contentions of the accused were that he had remained in the custody of the Federal Investigation Agency (FIA) for about 11 days, but no material was obtained by the investigation officer which might connect the accused with the alleged offence; that none of the witnesses whose statements were recorded under S. 161, Cr. P. C, had ' alleged any personal involvement of the accused in the entire transaction; that the investigation officer had seized the entire record from the office of the company, but no document had come to fore which might remotely connect the accused with the crime; that the accused had not signed or executed a single document in' respect of the transaction in question; that the accused only held 0.02% shares in the company, and that co-accused, in similar facts and circumstances, had been granted bail, therefore accused might also be admitted to bail following the principle of consistency---Validity---Prosecution had admitted that in similar facts and circumstances, co-accused had already been granted bail, therefore, present bail application would not be opposed---Accused was admitted to bail, in circumstances.

Muhammad Ashraf Kazi for Applicant.

Ashique Raza, DAG for the State.

2012 YLR 2346

[Sindh]

Before Faisal Arab, J

GHULAM RASOOL and 4 others---Applicants

Versus

KHAN MUHAMMAD and 2 others---Respondents

Criminal Miscellaneous Application No.289 of 2011, decided on 23rd June, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Justice of Peace ordering registration of case against the accused persons (applicants), when there was doubt as to whether the deceased was actually murdered---Validity---Accused persons were alleged to have murdered the deceased---Police diary sheets showed that the deceased had complained of chest pain and when his condition worsened he was taken to the hospital where he was pronounced dead---Medical report of the deceased stated that he had died his natural death---Widow of the deceased had filed a complaint with police official against the accused persons with regard to some property dispute and in the said complaint it was mentioned that the deceased had died but nowhere was it mentioned that he was murdered by the accused persons---Prior to filing of application under Ss. 22-A & 22-B, Cr.P.C, none of the relatives of the deceased had complained that deceased was murdered---For a period of over ten (10) months, at no point it was alleged that the deceased had been murdered, though applications during said-period had been filed to report a property dispute---Justice of Peace, in such circumstances, was not justified in invoking the provisions of Ss. 22-A & 22-B, Cr. P. C---Application was allowed and the impugned order of Justice of Peace was set aside.

Nazir Ahmed v. ASJ 2011 PCr.LJ 396 and Rai Ashraf v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

Meer Naeem Talpur for Applicants.

Muhammad Iqbal Kalhoro, A.P.-G. and SIP Muhammad Hussain Dal S.H.O. Neokot, Mirpurkhas.

Ali Zaman Khan for Respondent, along with Khan Muhammad and Arfat.

2012 Y L R 2354

[Sindh]

Before Salman Hamid, J

Mst. FATIMA---Petitioner

Versus

Mst. SHARIFA BAI and another---Respondents

Constitution Petition No.S-1203 and C.M.As. Nos.5742 and 5212 of 2011, decided on 16th December, 2011.

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

S.16---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant on ground of default in payment of rent---Tenant (petitioner) assailed orders of the Appellate Court whereby he was directed to vacate the premises---Validity---Petitioner, had for the first time, asserted ownership of the premises after filing of the case by filing of suit for specific performance and permanent injunction which was dismissed by civil court---Unless and until the tenant could establish her title in the premises, which she had failed to do, tenant would be deemed to be the tenant and she was bound under law to make payment of rent and in default was to face the consequences of such default, that included eviction---Mere agreement to sell did not constitute any title in favour of the parties thereto, and a registered conveyance deed was a must, which was admittedly not available with the tenant or on the record---Constitutional petition was dismissed.

Shamshad Qureshi for Petitioner.

Date of hearing: 16th December, 2011.

2012 YLR 2376

[Sindh]

Before Salman Hamid, J

Mst. SADIA ASHRAF through Legal Heirs and others---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, (EAST) KARACHI and 2 others---Respondents

C.P. No.237 of 2003, decided on 16th January, 2012.

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

----Ss.2(i) & 15---Constitution of Pakistan, Art.199--.Constitutional petition---Eviction of tenant on ground of default in payment of rent---Concurrent dismissal of the case of landlord---Contention of the petitioner(landlord) was, inter alia, that the tenant (respondent) had failed to pay the water and sewerage charges--Validity---"Rent" included water charges, electricity charges, and such other charges which were payable by the tenant which were still unpaid---Tenant, despite specific allegation of non-payment of water and conservancy charges by the tenant, did not deny or answer such allegations that water and conservancy charges were part of "rent" as per S. 2(i) of the Sindh Rented Premises Ordinance, 1979---Courts below had misread the evidence and their findings were set aside---Tenant was directed to vacate the premises in circumstances---Constitutional petition was allowed, accordingly.

Muhammad Sharif and another v. Muhammad Afzal Sohail , and others PLD 1981 SC 246; Mst. Mussarat Begum v. Muhammad Sultan and 3 others 2009 YLR 474 and Muhammad Latif v. District Judge Karachi (South) and others 2009 YLR 2234 distinguished.

Zahid F. Ebrahim for Petitioners.

Masroor Ahmed Alvi for Respondents No.2.

Date of hearing 14th December 2011.

2012 Y L R 2389

[Sindh]

Before Shahid Anwar Bajwa, J

NABI BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-181 of 2011, decided on 19th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 114 & 337-N(2)---Qatl-e-amd, causing hurt by rash or negligent act---Bail, refusal of---Contention of counsel for accused that no specific role was assigned to him, did not appear to be correct because in the F.I.R. it was clearly stated that accused had fired on the deceased---Previous enmity was always a double-edged sword which cuts both ways---Four empties had been recovered from the spot and three injuries were found on the dead body of the deceased---Pistol had been recovered at the pointation of accused-All said facts were sufficient to prima facie connect accused with offence alleged against him---Bail application was dismiss­sed, in circumstances.

Aftab Ahmed Gorar for Applicant.

Ameer Ahmed Narejo, State Counsel.

Date of hearing: 19th July, 2011.

2012 Y L R 2405

[Sindh]

Before Muhammad Tasnim, J

RIZWAN ALI--Applicant

Versus

THE STATE---Respondent

Bail Application No.969 of 2011, decided on 26th August, 2011.

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

---S. 103---Rule that search to be made in presence of witnesses---Nature and scope---Requirement of S.103, Cr. P. C. of associating two members of the public of the locality as Mashirs to the recovery proceedings is mandatory, unless the prosecution shows that in the circumstances of a particular case it was not possible to have two Mashirs from the public.

State v. Bashir PLD 1997 SC 408 and Mushtaq Ahmed v. The State PLD 1996 SC 574 ref.

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

----S. 497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Keeping in possession unlicensed arms---Bail, grant of---Only one private witness had been associated by the police with the recovery proceedings and he too did not belong to the vicinity of .recovery, which had made the recovery doubtful--Minimum punishment provided for the alleged offence being seven years R.1., case did not fall within the prohibition contained in S.497(1), Cr.P.C.---Was yet to be determined as to whether the recovered articles had been foisted upon the accused or the same had been recovered on his pointation---Once the accused had taken the position that the house of recovery did not belong to him, said aspect of the matter also required evidence as to how the accused had entered in the said house---F.I.R. was silent as to whether any body was available in the house when alleged recovery was effected in presence of one private witness---F.I.R. also did not say if the house in question was locked or it was opened by the police---All the aforesaid factors had made the case of accused one of further inquiry in terms of S.497(2), Cr: P. C. ---Accused was admitted to bail in circumstances.

State v. Bashir PLD 1997 SC 408 and Mushtaq Ahmed v. The State PLD 1996 SC 574 ref.

Gohar Iqbal for Applicant.

Ms. Akhter Rehana, Additional Prosecution-General for the State.

2012 Y L R 2416

[Sindh]

Before Shahid Anwar Bajwa, J

AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-161 of 2012, decided on 28th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148/149---Qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Recovery from accused---Evidentiary value---Scope---Enmity . between the parties---Effect---Allegation against the accused and co-accused was that they waylaid the complainant and his companions while they were going for work in the morning, where after the accused and co-accused fired at and murdered the three deceased persons---Contentions of the accused were that nothing had been recovered from him; that there was tribal enmity between the parties; that at morning time before going for work most people relieved themselves and, therefore, presence of faecal matter in the large intestine of the deceased persons indicated that the incident had not occurred the way it was mentioned in the F.I.R.---Validity---Recovery was always a corroborative piece of evidence and question as to what was the effect of recovery or non-recovery could be gone into only once evidence was recorded---Mere non-recovery at the bail stage could not be a ground for granting bail---Existence of enmity was always a double edged weapon and it cut both ways---Question as to whether F.LR. was actuated out of enmity or that the incident was motivated out of enmity, both could be argued with equal amount of vehemence---Previous enmity did not help either side in most of the cases, at least at the bail stage---Contention of the accused regarding presence of faecal matter in the large intestines of the deceased persons would not detain the court as deeper appreciation of evidence could not be conducted at bail stage---Accused was member of an unlawful assembly, which specifically waylaid six persons and there was no question as to whom they wanted to kill---Present case was a case where almost war was declared by persons of one tribe against persons of the other hapless tribe---Sufficient material was available prima facie to connect the accused with the offence---Bail application of the accused was dismissed, in circumstances.

Sarfraz v. The State PLD 2001 Kar. 162; Shokat Illahi v. Javed Iqbal and others 2010 SCMR 966 and Munawar v. The State 1981 SCMR 1092 rel.

Bachal v. The State 2009 PCr.LJ 646 ref.

Rashid Mustafa Solangi for Applicant.

Zulfiqar Ali Jatoi, D.P.-G. for the State.

2012 Y L R 2427

[Sindh]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

ZAKIR HUSSAIN alias ADEEL AGHA alias AGHA HUSSAIN alias YASIR ---

Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.200 of 2012, decided on 30th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/353/109/34/427-- Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention, mischief causing damage to the amount of fifty rupees---Bail, grant of--Allegation against the accused and co-accused was that they murdered a police official allegedly because he had in the past initiated cases against and arrested workers of a political party---Contentions of the accused were that the only material obtained by the investigation was a statement made by the co-accused before the investigating officer, in which he implicated the accused for the crime, and that such statement from the co-accused was of no evidentiary value and no conviction could be awarded on the basis of such a statement alone---Validity--Except for statement of the co-accused recorded by the Investigating officer, there was no other material implicating the accused in the crime---Accused could not be convicted on such a statement alone----Investigation officer had not been able to procure any further material against the accused since the time of his arrest---Accused was admitted to bail but considering the fact that he was involved in several serious criminal cases and in view of the worsening law and order situation, his surety for bail was set at Rs.3 million.

Salman Mujahid Baloch for Applicant.

Khadim Husain Khoharo, D.P.-G. for the State.

2012 Y L R 2432

[Sindh]

Before Muhammad Ali Mazhar, J

SHAHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1097 of 2011, decided on 1st June, 2012.

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

----S. 497---Bail---Statutory delay in conclusion of trial---Right of bail---Scope---Where the accused or his counsel were found to be instrumental for the delay in conclusion of the trial, benefit of statutory delay could not be claimed as a matter of right.

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

----S. 497---Bail---Statutory delay in conclusion of trial---Right/benefit of bail---Scope---Such a benefit under the law had been provided as a remedial measure to a person who was found to be diligent in pursuing his case but the trial could not be concluded for some reasons within the stipulated .period ,of time without his negligence or recklessness or delaying tactics.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 147/ 148/ 149--- Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Bail sought on ground of statutory delay in conclusion of trial---Failing to engage counsel for a long period of time---Effect--Contentions of the accused persons were that they were behind bars for more than two years and their trial had not yet concluded; that delay in conclusion of trial could not be attributed to them, and that previous bail applications filed by the accused persons before the High Court were disposed of with the direction to the Trial Court to conclude the trial within four months, but same had not been done---Validity---Record of the case showed that the accused persons avoided engaging a counsel for a long time which showed their own negligence and recklessness in pursuing their case---Court even made an offer to the accused persons for providing them an advocate on state expenses, but they clearly refused, which showed that they had sufficient means to arrange counsel fee---Although the High Court had given directions in the previous bail applications filed by the accused persons to conclude the trial within four months but it was also a matter of record that for a considerable period of time, the accused persons failed to engage counsel, therefore, any directions, were of no use as the same became redundant due to non-engagement of a counsel---Accused persons were themselves instrumental for the delay and it was not a fit case to enlarge them on bail on the ground of statutory delay---Bail application of the accused persons was dismissed in circumstances.

Zameer v. The State 2012 YLR 477 distinguished.

Maqbool Ahmed Awan for Applicants.

Syed Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for the Complainant.

Sardar Ali Shah, A.P.-G. for the State.

Date of hearing: 23rd April, 2012.

2012 Y L R 2452

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD USMAN---Applicant

Versus

VTH ADDITIONAL SESSIONS JUDGE, KARACHI-WEST and 5 others---Respondents

Criminal Revision Application No.4 of 2011, decided on 9th July, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 2(c)---Complainant assailed order of Trial Court whereby his complaint under S. 3 of the Illegal Dispossession Act, 2003 was dismissed---Validity---Trial Court had not considered the possession of the complainant being a `licensee' by a decree in a suit for, declaration and permanent injunction against the respondents; which was followed by an Execution Petition; which was also allowed and a writ to remove the encroachment of the respondents had also been issued---Impugned order of the Trial Court was not sustainable---High Court set aside impugned order and remanded the matter for decision afresh---Revision was allowed, accordingly.

2009 SCMR 1066; PLD 2011 Kar. 405; 2010 YLR 1566 and 2012 SCMR 229 ref.

S. Sohail Hasan v. Mian Abid Manzoor 2010 YLR 495 and 2010 YLR 1982 rel.

Nale Mitho alias Muhammad Ishaque for Applicant.

Abdul Rehman Kolachi, A.P.-G. for Respondents Nos. 1 and 6.

Nemo for Respondents Nos.2 to 5. Date of hearing: 28th June, 2012.

2012 YLR 2462

[Sindh]

Before Mqbool Baqar and Muhammad Shaft Siddiqui, JJ

AMBER JAWAID and others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitution Petition No.D-1428 of 2012, decided on 18th April, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission in School---Admission forms, non-submission of---Petitioners were students of a private school, who were to take Matriculation examination but the Principal. of the school, due to his negligence, could not file admission forms within prescribed date, therefore, they were precluded from taking the examination---Validity---High Court observed that it was almost impossible to make such arrangements because already the education Board was catering for about 310,000 students and perhaps only such number of examination/ question papers were arranged as was the number of students, who had already submitted their forms timely---In addition to examination/question papers a lot more had to be done for the students to participate in examination---High Court directed the authorities to take appropriate steps so that the school in question be de-registered / de-recognized and permission for running the school be withdrawn and the school was to be closed down and respondent be prevented from opening / establishing and / or running any school under any name or garb---High Court directed the Education Board concerned to consider the case of petitioners sympathetically and on humanitarian ground---Constitutional petition was disposed of accordingly.

Abdul Sadiq Tanoli for Petitioners.

Abrar Hassan and Masroor Ahmed Alvi, Khalid Ahsan, Deputy Secretary, Board of Secondary Education, Karachi for Respondents.

Respondent No.5 is present in person.

2012 Y L R 2469

[Sindh]

Before Salman Hamid, J

TARIQ ZAFAR---Petitioner

Versus

NASIR KHAN and 3 others---Respondents

Constitution Petition No. S-1399 of 2011, heard on 11th January, 2012.

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

----S.15--Constitution of Pakistan, Art.199-Constitutional petition---Ejectment of tenant on ground of default in payment of rent was ordered concurrently by the courts below---Contention of tenant was that he was never a tenant, and was occupying the premises in his capacity as an owner on the basis of an agreement to sell in his favour---Validity---Agreement to sell did not confer title in favour of a person---Tenant, at best, only had in his hands the agreement to sell and therefore on merely on basis of such agreement, tenant could not have absolved himself from the responsibility of making payment of rent---Default was patent in circumstances---Tenant's suit for .specific performance of the agreement to sell was filed in February, 2008,. while the said agreement was dated January, 2002; and said suit was dismissed for non ­prosecution---Petitioner had subsequently filed a fresh suit and no interim order was operating in favour of the tenant in the said fresh suit---Said suit of the tenant was, prima facie, beyond the period of limitation---Tenant had not been able to establish himself as owner of the premises, and was required to make payment of rent, in circumstances---Constitutional petition was dismissed.

Ghulam Sarwar Thebo for Petitioner.

Nemo for Respondents.

Date of hearing: 11th January, 2012.

2012 Y L R 2491

[Sindh]

Before Muhammad Tasnim, J

NAZAR ALI---Applicant

Versus

THE STATE---Respondent

Bail Application No.1378 of 2010, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898)

---Ss. 497(2), 498 & 498-A---Penal Code (XLV of 1860), Ss.302, 324, 147, 148, 149, 114, 337-A(i), 337-H(2) & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Damiyah and hurt by rash or negligent driving---Interim pre-arrest bail, confirmation of---Further inquiry---Once interim pre-arrest bail had been granted by the court, bail application was to be decided on merits instead of dismissing it on technical grounds---Delay of five days in lodging F. I. R. ---Name of accused did not appear in F.LR.---No statement of any prosecution witnesses under S.161 Cr. P. C. had . been brought to the notice of the court, who had named accused or assigned any role to him--- Number of accused persons whose names appeared in the F.I.R.; and were assigned role, had already been admitted to bail by the Trial Court---Interim pre-arrest bail application by co-accused, had been granted and. confirmed---Prosecution had failed to point out any material, which connected accused with the commission of offence---Accused had made out case of further inquiry in terms of subsection (2) of S. 497, Cr. P. C. on merits---Interim pre-arrest bail granted to accused, was confirmed on the same terms and conditions, in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Sultan Ahmed Siddiqui v. The State PLD 2010 Kar. 110; Nadir and 2 others v. The State 1985 PCr.LJ 247; Jaffar and others v. The State 1980 SCMR 784; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others 1996 SCMR 1845: Noor Muhammad v. ,The State 2009 SCMR 324; Dilmurad v. The State 2010 SCMR 1178; Criminal Bail Application No.472 of 2010 (decided by this Court on 22-3-2011); Kouro and another v. The State 2004 YLR 2434 ref.

Riaz Ahmad v. The State 2009 SCMR 725; Masood Ahmed alias Muhammad Masood and another v. The State 2006 SCMR 933; Arif Din v. Amil Khan and another 2005 SCMR 1402; Nasir Muhammad Wassan and another v. The State ,1992 SCMR 501; Muhammad Safdar and others v. The State 1983 SCMR 645; Muhammad Azim v. The State PLD 1988 SC 84; Shaukat Manzoor v. The State 1981 SCMR 394; Muhammad Jaffar Leghari and others v. Chairman, Federal Land Commission and others 1981 SCMR 1103; Muhammad Shafiq and another v. The State 1982 SCMR 384; Iqbal v. The State 1982 SCMR 84; Abdul Rashid v. The State 1985 SCMR 980; Muhammad Amin and another v. The State 1987 SCMR 1522 and Rana Muhammad Arshad v. Muhammad Rafique and another 2009 PLD 427 distinguished.

The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Nadeem Hamid v. The State PLD 1997 Kar. 494 and Shamrez Khan v. The State 1999. PCr.LJ 74 rel.

Muhammad Ashraf Kazi for Applicant.

Ms. Seema Zaidi, Assistant Prosecutor General, Sindh for Respondent.

M. Waheed Kazi for the Complainant.

Date of hearing: 5th September, 2011.

2012 Y LR 2557

[Sindh]

Before Habib-ur-Rehman Shaikh, J

GUL HASSAN alias PAPU---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-500 and M.A. No.2505 of 2012, decided on 3rd August, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/337-H(2)/34---Qatl-e-amd, hurt by rash or negligent act, common intention---Bail, grant of---Further inquiry---Complainant's father had been allegedly murdered by a co-accused and accused was alleged to have made aerial firing at the time of incident in order to create harassment---Name of accused did not transpire in the F.I.R.---Complainant recorded further statement four days after the alleged incident in which general allegation of aerial firing was made against the accused---Prosecution had not objected to grant of bail---Case required further inquiry and accused was released on bail accordingly.

Shaikh Abdul Ghani for Applicant.

Sardar Ali Shah A.P.-G. for the State.

2012 Y L R 2580

[Sindh]

Before Naimatullah Phulpoto, J

RANO and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-30 of 2011, decided on 21st June, 2012.

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

----Ss. 265-K & 561-A---Penal Code (XLV of 1860), Ss. 302, 452, 458, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons, unlawful assembly, possession of illegal weapons---Application moved by accused persons (applicants) under S.265-K, Cr.P.C, seeking their acquittal was dismissed by the Trial Court---Contention of accused persons was that their names did not transpire in the F.I.R. and were subsequently introduced by the complainant through her further statement, and that the statement of the complainant was not sufficient for their conviction---Validity---Evidentiary value of further statement of complainant was yet to be determined by the Trial Court---Accused persons had been fully implicated in the case by the further statement of the complainant and through statement of prosecution witness under S. 161, Cr.P.C---Said statements were fully corroborated by the medical evidence---Investigation officer had collected sufficient material during investigation against the accused persons to connect them with the crime---Challan had been submitted against the accused persons in the competent court of law---Trial Court had observed that there was probability of accused persons being convicted for the offence with which they were charged---Order passed by the Trial Court was based upon sound reasons and required no interference---Application was dismissed in circumstances.

Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau and another 2011 MLD 313 ref.

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

----Ss. 265-K---Power of court to acquit accused at any stage---Scope---Court under the garb of S. 265-K, Cr.P.C, could not deprive the prosecution from providing opportunity to produce the evidence before the Trial court.

Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau and another 2011 MLD 313 ref.

Manzoor Ahmed Junejo for Applicants.

Zulfiquar Ali Jatoi, D.P.-G. for Respondent.

2012 Y L R 2596

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ABDULLAH---Applicant

versus

THE STATE---Respondent

Bail Application No.893 of 2011, decided on 25th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Deeper appreciation of the record at bail stage could not be gone into, but only a tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not---Delay of seventeen days in lodging of F.I.R.---Mashirnama of arrest and recovery were not prepared at the spot---Samples were sent after ten days of the alleged recovery---Prima facie, the provisions of S.21 of Control of Narcotic Substances Act, 1997 had been violated---No private witness was associated at the time of alleged recovery or arrest---Though private persons were not required to witness the recovery of narcotic substance as provided under Control of Narcotic Substances Act, 1997, but the place of recovery and the time of recovery had to be kept in view to prevent false implication of innocent people---Case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Shafiullah v. The State 2007 YLR 3087; Khalid Nawaz The State 1999 PCr.LJ 391; Zahoor Ahmed v. The State 1995 PCr.LJ 1715; Gul Zaman v. The State 1999 SCMR 1271; Khalid Sultan v. The State 1985 PCr.LJ 241; Khan Bacha v. The State PLD 2006 Kar. 698; Nawaz v. The State 2004 YLR 1118 and Rayasat Ali v. The State 2005 YLR 1862 ref.

Mazhar Ahmed v. The State 2005 PCr.LJ 846; Muhammad Shafiq Qureshi v. The State PLD 2006 Lah. 300; Muhammad Noor and another v. The State and others 2007 YLR 1022; Noor Shah v. The State 2005 YLR 1274; Luqman Raji Adewunmi v. The State 2005 PCr.LJ 248; Gul Alam v. The State 2011 SCMR 624 and The State v. Abdali Shah 2009 SCMR 291 distinguished.

Nawaz v. The State 2004 YLR 1118 rel.

Shaukat Hayat for Applicant.

Abdullah Rajput, A.P.-G. for the State.

Date of hearing: 25th August, 2011.

2012 Y L R 2604

[Sindh]

Before Shahid Anwar Bajwa, J

PEHLWAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-995 of 2010, decided on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 337-H(2)---Qatl-e-amd, rash or negligent act---Bail, grant of---Further inquiry---Contention of accused that delay of more than one month in recording of F.I.R. was fatal, was repelled because such delay was satisfactorily explained---Accused was not alleged to have caused any fire-arm injury to the deceased---All that the accused alleged was that he was armed with a double barrel gun and he fired at the complainant and his brother, but missed---Case, in circumstances was at the most of ineffective firing and the one where no injury was alleged to have been caused to the deceased or to any one else---Accused was found innocent during investigation and was let off by Police---Case of further inquiry was made out, in circumstances---Accused himself had approached the Trial Court and filed application for bail before arrest---Contention of counsel for complainant that there was common intention, was not sufficient at bail stage to refuse facility of bail, because common intention in such like cases could be gone into after recording evidence---Accused was admitted to bail, in circumstances.

Karim Hyder and another v. The State 1986 SCMR 938; Muhammad Ilyas v. Aijaz Ahmed Butt and another 1992 SCMR 1857 and Ghulam Nabi v. The State 1996 SCMR 1023 distinguished.

Faraz Akram v. The State 1999 SCMR 1360; Muhammad v. The State 1998 SCMR 454; Nasrullah Khan v. The State 2007 PCr.LJ 797 and Mitho Pitafi v. The State 2009 SCMR 299 rel.

Abdul Rauf v. The State PLD 1996 Kar. 372 ref.

Ali Raza Kalwar for Applicant.

Anwar Ali Lohar for Complainant.

Shyam Lal Ladhani, A.P.-G. for the State.

2012 Y L R 2609

[Sindh]

Before Nisar Muhammad Shaikh, J

GHOUS BUX---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-558 of 2011 and M.A. No.2290 of 2012, decided on 21st May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/114---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abettor present when offence is committed---Bail, refusal of---Conduct of accused---Adjournments sought by accused causing delay in trial---Effect---Accused was alleged to have instigated the co-accused persons to commit the murder of the deceased, whereafter the accused allegedly caused hatchet blows on the head of the deceased---Contentions of accused were that there was a delay of 11 hours in lodging of F.I.R. by the complainant after he had narrated the incident to his relatives and got the postmortem examination of the deceased; that some of the injuries allegedly sustained by the deceased were not described in the F.I.R.; that question as to which of the accused person caused the fatal blow needed further inquiry, and that co-accused who had similar role to that of the accused was let off by the police during investigation---Validity---Case diary showed that complainant and prosecution witnesses had been attending Trial Court for their evidence but the accused sought adjournments on one pretext or another---Such conduct of the accused did not entitle him for any concession in a murder case specially when there appeared reasonable grounds to believe that he was guilty of the offence alleged---Contentions raised by accused could be considered properly after recording evidence of complainant and prosecution witnesses---Delay in lodging of F.I.R. had been explained in the F.I.R. itself---F.I.R. showed that all accused persons had acted in furtherance of their common intention and present accused, in addition to his act of inflicting hatchet blow, was also assigned the role of instigation for commission of murder---Bail application of accused was dismissed, in circumstances.

Jaffer and others v. The State 1980 SCMR 784; Muhammad Ameen v. The State 1987 PCr.LJ 1404; Muhammad Azam v. The State 2008 SCMR 249; Zulfiqar v. The State 2002 PCr.LJ 79; Shah Zaman and 2 others v. The State PLD 1994 SC 65; Nawaz alias Nazim's case 1996 PCr.LJ 74 and Farukh Qadri v. The State 2006 PCr.LJ 1256 ref.

Muhammad Iqbal Mahar for Applicant.

Liaquat Ali Baloch for the Complainant.

Altaf Hussain Surahio, State Counsel.

2012 Y L R 2629

[Sindh]

Before Abdul Rasool Memon, J

ABDUL RAHEEM---Applicant

versus

THE STATE---Respondent

Criminal Tr. Application No.S-50 of 2012, 19th June, 2012.

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

----S. 526---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Possession of illegal weapons---Application for transfer of case, refusal of---Vague and unfounded allegations against the Judge---Contentions of the accused (applicant) were that behaviour of the Judge (Presiding Officer) towards him was too harsh; that he used abusive language against the accused, and that he had even invited the complainant (police official) in his chamber, served him tea and dictated him the evidence---Validity---Accused had failed to mention the date and time when the Judge (Presiding Officer) called the complainant in his chamber and served him tea---Contention regarding abusive language and harsh behaviour was not supported by any affidavit from the advocate for the accused---No date and time had been mentioned on which the Presiding Officer used abusive language with the accused---Allegations made against the Judge were vague and general in nature and such allegations could not be made the ground for transfer of case---While transferring a case from one court to another, justice should not only be done but should also appear to have been done---Transfer application was dismissed, in circumstances.

Mian Muhammad Rafique Saigol v. BCCI and others 1996 CLC 1390 and Shah Jehan v. Special Judge Anti-Corruption and others 1992 PCr.LJ 2033 rel.

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

----S. 526---Transfer of case---Scope---While exercising jurisdiction to transfer cases from courts, balance had to be struck in order to ensure that cases were not transferred merely on basis of suppositions, unfounded and conjectural apprehensions---Justice was to be done without fear or favour, thus, Presiding Officers should equally be protected from frivolous transfer applications in order to achieve transparent even handed justice so that one of the litigants should not be in a position to overawe the Presiding Officer which might ultimately result in tilting scales of justice under fear of malignity.

Mian Muhammad Rafique Saigol v. BCCI and others 1996 CLC 1390 rel.

Muhammad Afzal Jagirani for Applicant.

Altaf Hussain Surahio, State counsel.

2012 Y L R 2636

[Sindh]

Before Habib-ur-Rehman Shaikh, J

Mst. IMAM KHATOON---Applicant

versus

S.H.O. POLICE STATION 'B' SECTION, SUKKUR and another---Respondents

Criminal Miscellaneous Application No.404 of 2012, decided on 27th July, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 154 & 161---Second F.I.R., registration of---Scope---Once an F.I.R. is got registered by one party and divergent version contained therein was not called for inasmuch as the ball had already been set rolling; and the aggrieved person (of the F.I.R.) had not appeared before the police to give his statement in the shape of section 161, Cr.P.C in the same F.I.R., then it was the statutory duty of the police to come and to trace out truth and real culprits---When an aggrieved person appeared before the court for the registration of his version, then it was the duty of the court to register a second F.I.R. if prima facie case was made out against the proposed accused---Application was allowed accordingly.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 rel.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Asif v. Umar Farooq Khan Inspector Police and 5 others 2010 MLD 128; Imdad Hussain v. P.O. Sindh and others 1996 PCr.LJ 296; Dr. Hamid Khan and 14 others v. S.H.O. Police Station, Pashtoonabad, Quetta and 2 others 2001 PCr.LJ 472 and Ghulam Siddique v. Station House Officer, Saddar, Dera Ghazi Khan and 8 others PLD 1979 Lah. 253 ref.

Ghulam Shabir Dayo for Applicant.

Sardar Ali Shah A.P.G. for the State.

2012 Y L R 2673

[Sindh]

Before Abdul Rasool Memon, J

ABDUL NABI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.219 of 2012, decided on 11th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2) & 103---Penal Code (XLV of 1860), Ss. 489-A, 489-B & 489-C---Counterfeiting bank-notes or currency-notes, using as genuine, forged or counterfeit currency-notes or bank-notes, possession of forged or counterfeit currency-notes or bank-notes---Bail, grant of---Further inquiry---Non-association of private witnesses in a thickly-populated area---Use of counterfeit notes not alleged---Effect---Accused was alleged to be in possession of counterfeit currency notes and chemical used for preparation of forged notes---Contentions of the accused were that police had prior information and conducted raid in broad daylight in a thickly-populated area but no person from the public was joined as mashir; that nothing was brought on record to show that counterfeit currency notes were used for buying or selling; that applicability of Ss.489-A, 489-B and 489-C, P.P.C, could be determined at the trial---Validity---Complainant (police) had advance information regarding the offence and as per F.I.R. raid was conducted in a thickly populated area but no witnesses of the locality accompanied the police---Requirement of S. 103, Cr.P.C, had not been complied with---No allegation of any sort existed against the accused that he used the counterfeit notes before any person---Chemical recovered from the place of incident had not been sent to any laboratory to ascertain whether same could be used preparing counterfeit currency---Mere possession of counterfeit currency did not constitute an offence under sections 489-A, 489-B or 489-C, P.P.C, and it was yet to be seen at trial whether alleged offence came within the said sections---Involvement of accused in the offence required further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Naeem v. The State 2012 YLR 1228 and Sawab Khan v. The State 1995 PCr.LJ 1351 rel.

Muhammad Sajjad v. The State 1996 PCr.LJ 815 and Zafar Iqbal v. The State 2000 PCr.LJ 834 ref.

Muhammad Iqbal Mahar for Applicant.

Altaf Hussain Surahio, State counsel.

2012 Y L R 2677

[Sindh]

Before Naimatullah Phulpoto, J

MUJAHID ALI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-291 of 2012, decided on 30th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392/34---Robbery, common intention---Bail, grant of---Further inquiry---Exoneration affidavits submitted before Trial Court---Case of two versions---Accused and co-accused persons were alleged to have robbed motorcycle, mobile phones and cash from the complainant party---Contention of accused were that complainant and prosecution witnesses had sworn affidavits before the Trial Court, in which accused had been exonerated; that he was no more required for investigation, and that case against him was of two versions---Complainant had clearly stated in his affidavit, sworn before the Trial Court, that he did not mention name of accused in the F.I.R.---Prima facie, there were two versions of the prosecution case and bail could not be refused in circumstances of the case as punishment---Prosecution case against accused required further inquiry and he was admitted to bail, accordingly.

Muhammad Najeeb v. State 2009 SCMR 448 rel.

Zulfiqar Hyder Abro for Applicant.

Altaf Hussain Surahio, State counsel.

2012 Y L R 2684

[Sindh]

Before Sadiq Hussain Bhatti, J

TARIQUE alias TARI---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.S-252 of 2012, decided on 7th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic---Bail, grant of---Accused arrested on basis of prior information and allegedly found in possession of 1010 grams of charas (narcotic)---Arrest made on basis of prior information in a thickly populated area but no private persons associated to act as mashir of recovery---Police taking out only 10 grams from one slab (patti) of the narcotic for chemical examination but not taking samples from the other slab---Said samples were sent for analysis after a delay of six days---Accused, in circumstances, had made out a case for grant of bail and was accord-ingly granted bail.

Muhammad Ali v. The State 2011 MLD 1555 and Khuda Bux v. The State 2010 SCMR 1160 rel.

Arab v. The State 2011 YLR 1699; Naeem v. The State 2011 YLR 858; Nasir Khan Afridi v. The State 2011 YLR 2316; Bakhtijan v. The State 2011 YLR 134; Bahawal alias Naang v. The State 2011 PCr.LJ 1200 and Muhammad Asif v. State and another PLJ 2012 Cr.C. (Lahore) 174 (DB) ref.

Nizamuddin H. Pirzada for Applicant.

Syed Meeral Shah, D.P.G. for the State.

2012 Y L R 2689

[Sindh]

Before Naimatullah Phulpoto, J

ZAHID HUSSAIN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-165 of 2012, decided on 30th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)---Possession of narcotic---Bail, refusal of---Accused, who was driving a rickshaw, was allegedly found in possession of three kilograms of charas---Contentions of accused were that out of the total allegedly recovered charas, two kilograms were recovered from the rickshaw and only one kilogram charas was recovered from his exclusive personal possession and as such it was a border-line case; that allegedly recovered charas was foisted upon him, and that all prosecution witnesses were police officials and interested witnesses---Validity---Involvement of accused in the alleged offence was prima facie established from the perusal of F.I.R., statements of prosecution witnesses and positive chemical report---Accused could not point put any mala fide or enmity of police to foist charas upon him---Contention of accused that only one kilogram was recovered from his exclusive possession could not be deeply appreciated at bail stage---Evidence of police officials could not be discarded at bail stage---Accused was refused bail, in circumstances.

Iqrar v. State 2012 YLR 877; Ayub Khan v. State 2012 YLR 1015; Wajid Ali v. State 2012 YLR 1051; Naimatullah Khan v. State 2012 YLR 251; Nisar Ali v. The State 2012 YLR 314; Muhammad Sarfraz v. The State 2012 YLR 553; Nadeem v. State 2007 MLD 1092; Imtiaz Ali v. The State 2006 MLD 1961 and Muhammad Chattal v. The State 2001 YLR 654 distinguished.

The State v. Abdali Shah 2009 SCMR 291 rel.

Athar Abbas Solangi for Applicant.

Imtiaz Ahmed Shahani, State counsel.

2012 Y L R 2695

[Sindh]

Before Salman Hamid, J

MUHAMMAD SABIR---Petitioner

versus

MUHAMMAD SIDDIQUE and another---Respondents

C.P. No.S-40 of 2010, decided on 29th November, 2011.

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

----S. 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant on ground of bona fide personal need of landlord, default in payment of rent and unauthorized use of the premises---Ejectment of the tenant (petitioner) was ordered concurrently by the courts below---Validity---Payment of rent through money order was not made on time and therefore default was created--While it was not mentioned in the tenancy agreement that permission to make additions or alterations to the premises had to be sought by the tenant,; substantial additions and alterations were to be made with the consent and concurrence of the landlord and could not be unilateral---Premises was used by the tenant in an unauthorized manner; and it had come on record that the personal need of the landlord was bona fide; inasmuch that landlord's children had to commence a business at the premises and no other property was available with the landlord---Tenant was running a restaurant at the premises and "restaurant" was not included in the ousting part of definition of premises provided under S.2(h) of Sindh Rented Premises Ordinance, 1979---Constitutional petition was dismissed.

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

----S. 2(h)---"Premises", definition of---"Restaurant" was not included in the ousting part of definition of premises provided under S.2(h) of the Sindh Rented Premises Ordinance, 1979.

Talat Aslam for Petitioner.

Amanul Haq for Respondent.

Date of hearing: 29th November, 2011.

2012 Y L R 2701

[Sindh]

Before Riazat Ali Sahar, J

ABDUL WAHEED---Applicant

versus

Mst. DAI and another---Respondents

Criminal Revision Application No.S-35 of 2010, decided on 6th August, 2012.

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

----Ss. 265-K---Penal Code (XLV of 1860), Ss. 376/344---Rape, wrongful confinement for ten or more days---Quashing of proceedings---Accused was alleged to have repeatedly committed rape with his domestic servants (victims) over a period of nine months and also allegedly kept the victims illegally confined in his house---Application of accused under S.265-K, Cr.P.C had been dismissed by Trial Court---Contentions of the accused were that he was residing in his house with his family members, therefore, it was impossible for him to commit rape; that victims had never raised cries or complaint to any of the family members of the accused; that there was a delay of about 9 months in lodging of F.I.R., and that allegation was levelled without any corroborative evidence including medical evidence---Validity---F.I.R. was delayed by about 9 months, during which period victims had never complained to any family member of the accused or some one else, despite residing with the family of the accused---Medical Officer had opined in the medical certificate that action of rape was excluded---Victims had filed their no objection statements and affidavits, in which they stated that they would not object if accused was acquitted under S.265-K, Cr.P.C---Revision application was allowed, order of Trial Court was set aside and accused was acquitted by quashing proceedings of the Trial Court.

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

----S. 376---Rape---Proof---Offence of rape cannot be proved without corroboration of medical evidence.

Syed Madad Ali Shah for Applicant.

Shahzado Saleem, A.P.-G. for the State.

Abdul Salam Abbasi for Respondent No.1.

2012 Y L R 2705

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD UMAIR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.172 of 2011, decided on 6th August, 2012.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Occurrence was un-witnessed incident as no one had come forward to claim that he had seen accused setting the deceased on fire by sprinkling petrol---Trial Court found the evidence of witnesses reliable and confidence-inspiring and recorded the conviction of accused without discussing or taking into consideration the other aspects of the case, which cogently were in favour of accused and could not be ignored lightly---Evidence of witnesses was full of contradictions---Cogent evidences for convictions were required otherwise innocent persons would be presumed to be offender---Another prosecution witness had not supported the prosecution case and he was declared hostile by the prosecution---Neither the credibility of the prosecution witnesses was up to the mark and trustworthy for believing nor confidence inspiring for recording the conviction of accused---Trial Court had also not considered and discussed delay of about five months in lodging F.I.R., whereas in murder cases the matter was to be referred to the Police with no delay---Prosecution case being not free from doubt, sentence awarded to accused by impugned judgment of the Trial Court was set aside, he was acquitted extending him benefit of doubt and was released, in circumstances.

S. Khurrum Nizam and Shakeel Ahmed for Appellant.

Muhammad Tamaz Khan for the Complainant.

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

Date of hearing: 2nd August, 2012.

2012 Y L R 2718

[Sindh]

Before Nisar Muhammad Shaikh, J

BASHIR AHMED---Applicant

versus

VIIth ADDITIONAL SESSIONS JUDGE, HYDERABAD and 2 others---Respondents

Criminal Revision Application No.125 and M.A. No.2676 of 2009, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

---S. 516-A---Dispute over superdari of vehicle---Accused (applicant) claiming that motorcycle in question was purchased by him on payment of instalments from leasing company---Police recovered said motorcycle from the accused in connection with an F.I.R. registered by the alleged owner, who claimed to be owner of the same---Court below released the motorcycle on superdari to the alleged owner---Contention of the applicant was that since F.I.R. was disposed of in "C" class by the Magistrate on the recommendation of the police, therefore, motorcycle was to be returned to the accused as no case was lying pending in the courts---Contentions of the alleged owner were that motorcycle was purchased by him after paying full instalments to the leasing company, which had issued a certificate in his favour; that motorcycle was registered in his name; that F.I.R. against the accused was disposed of for the reason that dispute between the parties was of civil nature and such disposal did not mean that F.I.R. was false---Validity---Relevant documents of ownership issued by the concerned authorities were in favour of the alleged owner, who was also in possession of the motorcycle---Accused on the basis of alleged receipts in his possession, could approach the appropriate forum to establish his claim and to recover the amount allegedly paid by him to the leasing company---Order of court below seemed to be proper and reasonable---Revision application was dismissed accordingly.

Rustam Ali Qureshi for Applicant.

Nisar Ahmed Unar for Respondent No.2.

Muhammad Iqbal Kalhoro, Additional Prosecutor-General Sindh.

2012 Y L R 2721

[Sindh]

Before Shahid Anwar Bajwa and Azizur Rehman, JJ

KOURO---Appellant

versus

THE STATE---Respondent

M.A. No.4081 of 2012 in Criminal Appeal No.S-376 of 2011, decided on 24th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302, 324 & 337-A(i)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah--- Suspension of sentence---Counsel for accused had contended that no question in respect of causing hatchet injury to ear of the victim was asked while statement of accused was recorded under S.342, Cr.P.C.---Was yet to be seen whether such defect was curable or not; and whether accused had been prejudiced in his defence because of non-asking of such question---Possibility of accused being prejudiced in his defence, could not be ruled out at present stage and on that score case for suspension of sentence was made out---Contention of accused was that he had himself been injured in the incident and had received hospital treatment which required deeper appreciation of evidence as to when and how said injury was caused to the accused---Question whether non-putting of the question about the nature of the injury and nature of weapon used while recording statement under S.342, Cr.P.C. required proper appreciation as to whether accused had been prejudiced in his defence or not---Case for suspension of sentence, in circumstances, was made out---Sentence of accused was suspended and he was ordered to be released on bail, in circumstances.

Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68; Faqir Muhammad v. Akbar and others 1979 SCMR 270 and Muhammad Yousaf v. The State 2012 SCMR 68 ref.

Sanaullah Khan v. The State 2010 SCMR 608 distinguished.

Syed Madad Ali Shah for Appellant.

Muhammad Iqbal Kalhoro Additional Prosecutor General Sindh for the State.

2012 Y L R 2727

[Sindh]

Before Muhammad Farooq Shah, J

MUMTAZ ALI JALBANI---Applicant

versus

THE STATE---Respondent

Bail Application No.662 of 2012, decided on 25th July, 2012.

Criminal Procedure Code (V of 1898)---

----S.497--Penal Code (XLV of 1860), Ss.409/419/420/468/ 471/ 109/34---Preven-tion of Corruption Act (II of 1947), S.5(2)--Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, common intention, criminal misconduct---Bail, grant of---Further inquiry---Alleged embezzlement of pension funds by tampering with pension cheques---Accused contended that he had no concern with the preparation of pension cheques; that drawing and disbursing officers, who were signatory of the cheques, had not been sent up for trial; that the accused performed his duties as per instructions of his incharge; that offence did not fall under the prohibitory clause of S. 497, Cr.P.C, and that prosecution had collected the documentary evidence and as such there was no apprehension of tampering with the same by the accused---Validity---Signatories of the cheques in question were drawing and disbursing officers, who had not been sent up for trial despite being solely responsible for issuing the cheques--Such fact was sufficient to prove that accused, who was a low grade employee of the organization and was entrusted the duty to cash the cheques, was involved as a scapegoat---Perusal of charge-sheet showed that accused persons named in column No.2 had been let off without assigning any reason, which apparently was a result of dishonest, biased and partial investigation---Case was one of further inquiry falling within the ambit of S. 497(2) Cr.P.C---Accused was admitted to bail, accordingly.

1996 SCMR 1132 ref.

Khaleeq Ahmed for Applicant.

Pir Riaz Muhammad, D.A.G. for the State.

Javed Iqal, I.O.

2012 Y L R 2736

[Sindh]

Before Naimatullah Phulpoto, J

PERVEZ ALI---Applicant

versus

S.H.O. POLICE STATION, AHMEDPUR and another---Respondents

Criminal Miscellaneous Application No.S-227 of 2012, decided on 14th June, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Power of Justice of Peace to issue directions for registration of F.I.R.---Scope---Complainant (applicant) filed application under Ss. 22-A & 22-B, Cr.P.C before Justice of Peace, alleging therein that he had a dispute with the accused over arrears from the sale of a motorcycle because of which the accused and co-accused forcibly stopped the complainant, attempting to murder him and also snatched from him cash, mobile phone and a gold ring---Said application of the complainant was dismissed by the Justice of Peace on the grounds that dispute between the parties was over transaction of a motorcycle and it appeared that application was filed with mala fide intention---Validity---Justice of Peace was to examine whether the information disclosed by the complainant did or did not constitute a cognizable offence and if it did, then to direct the concerned Station House Officer (S.H.O) to record an F.I.R. without going into the veracity of the information in question---Reasons assigned by the Justice of Peace for declining to issue directions to the Station House Officer (S.H.O) for registration of case were contrary to the principles of law---Even if the dispute between the parties was over a money transaction, the Station House Officer (S.H.O) was legally bound to register the F.I.R. in case a cognizable offence was made out---Complainant had categorically stated that the accused snatched cash, mobile and other articles from him---Application was allowed, impugned order of Justice of Peace was set aside with directions to the Station House Officer (S.H.O) to record the statement of the complainant in case a cognizable offence was made out.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

Aijaz Ali Maitlo for Applicant.

Liaqauat Ali Maitlo and Riaz Ali Maitlo for the proposed accused.

Zulfiqar Ali Jatoi D.P.G. for the State.

2012 Y L R 2740

[Sindh]

Before Abdul Rasool Memon, J

HUBDAR HUSSAIN---Applicant

versus

S.H.O. POLICE STATION, WALEED and 5 others---Respondents

Criminal Miscellaneous Application No.218 of 2011, decided on 3rd July, 2012.

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

---Ss. 22-A, 22-B, 200 & 561-A---Order for registration of F.I.R. was sought by the complainant (applicant) from Justice of Peace---Police not prepared to accept complainant's version---Civil dispute over monetary transaction--- Accused (respondent) was alleged to have taken cash and mobile phone from the complainant at gun point and also allegedly extending threats of dire consequences---Application filed by complainant before Justice of Peace for registration of F.I.R. was dismissed on grounds that same was filed with mala fide intentions and actual dispute between parties was over some monetary transaction---Validity---Station House Officer (S.H.O.) had stated in clear words that no such incident, as alleged by the complainant, took place and that the dispute between the parties was regarding payment of some amount---Matter between parties appeared to be of a civil nature---Since police authorities were not prepared to accept contentions of the complainant and had found adverse to complainant's case, therefore, it would be appropriate for the complainant to file private complaint before the court of competent jurisdiction---Application was dismissed, in circumstances.

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 ref.

(b) Constitution of Pakistan---

---Art. 199---Criminal Procedure Code (V of 1898), S. 200---Constitutional petition---Registration of F.I.R.---Scope---Under the provisions of Art. 199 of the Constitution it was not obligatory for the High Court to issue writ in each case irrespective of the facts and circumstances which could call for exercise of judicial restraint in turning down the request for registration of F.I.R. in view of the conduct of the party besides considering that adequate remedy in the form of private complaint being available to the petitioner.

Ahmed Hussain Khoso for Applicant.

Ali Raza Pathan, State counsel.

2012 Y L R 2752

[Sindh]

Before Syed Zakir Hussain, J

NIAZ HUSSAIN, A.S.-I. and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.264 of 2009, decided on 14th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 321 & 322---Qatl-e-amd, qatl-bis-sabab---Appreciation of evidence--Deceased who was not wanted in any crime was taken in Police custody with no legal authority; he was boarded in the official vehicle/mobile by accused persons (police officials), which left the place of the deceased for its own destination and the deceased was dropped from the moving vehicle in the presence of accused persons (police officials), while in their custody, on its way to the mettalled road; and the deceased was later found dead by the complainant party after accused persons had already disappeared in their vehicle therefrom---Responsibility of the death of the deceased went to the accused persons (Police officials) due to whose illegal and negligent act, the deceased in their cover of irregular custody, escaped; and having fallen to the ground owing to the jump from the running vehicle of accused persons (police officials), sustained injuries, which caused his death---Accused persons appeared to have stood established guilty of the offence of qatl-bis-sabab as defined by S.321, P.P.C., punishable under S.322, P.P.C.---Counsel for the complainant conceded the disposal of the appeal in such terms---Conviction and sentence of accused persons were ordered to stand altered under S.322, P.P.C. and accused were ordered to stand released forthwith after payment of Diyat in equal share to the legal heirs of the victim entitled thereto.

A.Q. Halepota for Appellants.

Ghulam Shabir Babar for the Complainant along with Complainant.

Abdul Raza and Muhammad Iqbal Rajpute, A.P.-G. for the State.

2012 Y L R 2756

[Sindh]

Before Nisar Muhammad Shaikh, J

WAHEED AHMED---Petitioner

versus

IST ADDITIONAL DISTRICT JUDGE, SHIKARPUR and another---Respondents

Constitution Petition No.S-331 and M.A. No.483 of 2012, decided on 29th May, 2012.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---West Pakistan Family Court Rules 1965, R.6---Constitution of Pakistan, Art.199---Constitutional petition--Territorial jurisdiction of Family Court---Suit for recovery of maintenance allowance and dower---Husband's (petitioner) application under R.6 of the West Pakistan Family Court Rules,1965 for return of plaint on the ground that the husband and wife along with their child were residents of another district; was dismissed concurrently---Validity---Wife was permanently residing in district "S" and the suit was filed by her in the Family Court at the said place was maintainable under the proviso to the R.6 of the West Pakistan Family Court Rules, 1965---Suit of the wife was within the territorial jurisdiction of the Family Court at place "S" and was therefore, maintainable---Constitutional petition was dismissed.

Major Muhammad Khalid Karim v. Mst. Sadia Ayoub and others PLD 2012 SC 66 ref.

Abdul Rehman Baloch for Petitioner.

Ms. Shahida Mashkoor Memon for Respondent No.2.

2012 Y L R 2770

[Sindh]

Before Syed Zakir Hussain, J

Mst. RASHIDA BEGUM---Appellant

versus

THE STATE through Advocate-General Sindh and 5 others---Respondents

Criminal Acquittal Appeal No.73 and M.A. No.920 of 2010, decided on 9th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 147/ 448/ 342/427/ 457/506---Criminal Procedure Code (V of 1898), S.417---Rioting, house-trespass, wrongful confinement, mischief causing damage to the amount of fifty rupees, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, criminal intimidation---Appeal against acquittal, dismissal of---Appreciation of evidence---Allegations against accused persons (respondents) were that they entered the complainant's (appellant's) house and forcibly demolished the same, whereafter the occupants of the house were illegally and forcibly taken to another location despite disclosure of the complainant that litigation over the house was pending in a court---Trial Court acquitted the accused persons (except for the ones who had absconded) on the grounds that prosecution failed to prove the charge beyond reasonable doubt; that F.I.R. was registered against unknown persons with the complainant admitting that she could not identify the culprits due to darkness; that complainant, who was also the prime prosecution witness, neither disclosed names of the culprits nor pinpointed specific role of any of them, and that other witnesses also failed to give any positive evidence in general relating to identity of the culprits---Accused persons who had absconded were kept on dormant file---Validity---Complainant had failed to show any misreading or non-reading of the evidence and any illegality or error or miscarriage of justice warranting interference---Nature of evidence demanded that same treatment should have been given to all the accused persons, including the accused who had absconded---Absconding accused persons were also acquitted of the charge for the reason that there was no incriminating material against them and there appeared no probability of them being convicted---Keeping the matter of absconding accused on dormant file was devoid of pro-ductivity and purposeless---Appeal against acquittal was dismissed, accordingly.

Syed Ali Ahmed Tariq for Appellant.

Sardar Sher Afzal for Respondent No.2.

Khuwaja Muhammad Azeem for Respondent No.3.

Javed Anwar for Respondent No.4.

Date of hearing: 9th September, 2010.

2012 Y L R 2775

[Sindh]

Before Abdul Rasool Memon, J

GHULAM SARWAR---Applicant

versus

S.H.O. POLICE STATION, VEEHAR and 2 others---Respondents

Criminal Miscellaneous Application No.88 of 2012, decided on 26th June, 2012.

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

----Ss. 22-A, 22-B, 200 & 561-A---Registration of F.I.R. sought by the complainant (applicant)---Police not prepared to accept complainant's version---Parties on disputed terms---Accused (respondent) was alleged to have forcibly entered into complainant's shop and allegedly robbed cash and mobile phone and destroyed the articles lying in the shop---Application filed by complainant before Justice of Peace for registration of F.I.R. was dismissed with the observation that F.I.R. disclosed names of ten proposed accused specifically but in court complainant only nominated two accused persons and could not remember the names of the rest, claiming same were disclosed to the complainant by a witness who was sitting in the shop---Validity---Material available showed that complainant and proposed accused were on disputed terms with each other since long---Station House Officer (S.H.O. ) had stated in clear words that no such incident, as alleged by the complainant, took place and that the dispute between the parties was over a plot of land--- Application was dismissed by High Court in circumstances with the observation that it would be appropriate for the complainant to file private complaint before the court of competent juris-diction, where the complainant could lead entire evidence himself and his grievance could be adequately redressed.

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 ref.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.200---Constitutional petition---Registration of F.I.R.---Scope---Under the provisions of Art. 199 of the Constitution it was not obligatory for the High Court to issue writ in each case irrespective of the facts and circumstances which could call for exercise of judicial restraint in turning down the request for registration of F.I.R. in view of the conduct of the party besides considering that adequate remedy in the form of private complaint being available to the petitioner.

Irshad Ali R. Chandio for Applicant.

Ahmed Hussain Khoso for proposed accused.

Muhammad Yaqoub Dahani, State counsel.

2012 Y L R 2779

[Sindh]

Before Aziz-ur-Rehman, J

LIAQUAT KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.252 and M.A. No.4279 of 2011, decided on 17th July, 2012.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.320---Qalt-e-Khata by rash or negligent driving---Suspension of sentence---Bailable offence---Accused was convicted under S. 320, P.P.C. and was sentenced to 5 years' imprisonment---Validity---Offence under S.320, P.P.C. was a bailable offence, therefore, accused was entitled to be released on bail after admission of his appeal as a matter of right---Bail was allowed in circumstances.

Abdul Hameed v. The State 2001 MLD 1577 and Shah Hussain v. The State PLD 1995 ref.

Said Muhammad for Appellant.

Khadim Hussain, A.P.-G. for Respondent.

2012 Y L R 2781

[Sindh]

Before Syed Hasan Azhar Rizvi and Muhammad Shafi Siddiqui, JJ

SHAMSUDDIN KHASKHELI---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU SINDH, through Director General Sindh---Respondent

Constitutional Petitions Nos.D-1826 to 1830 of 2012, decided on 10th July, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S.9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Bail, refusal of---Evidence, deeper appreciation of---Accused persons were employees of Accounts Office who were alleged to have made payment of pension to fake pensioners and had caused loss to Government---Accused sought bail on the plea that they had been falsely involved and they were innocent---Validity---Contentions of accused required no emphasis that tentative assessment was to be made for the purpose of deciding bail application and no in-depth appreciation or appraisal of evidence was warranted at bail stage---High Court declined to make any such observations which could cause prejudice to the case of any of the parties at trial---On tentative assessment, prosecution had established that there were sufficient material/circumstances which required consideration by Trial Court after recording of evidence---Accused failed to make out a case of further inquiry and were not entitled to be released on bail at such stage---Petition was dismissed in circumstances.

2005 SCMR 1666; 2008 PCr.LJ 910 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Yousuf Moulvi and Shahab Sarki for Petitioner.

Noor Muhammad Dayo, Senior Prosecutor NAB for Respondent.

Date of hearing: 2nd July, 2012.

2012 Y L R 2790

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ZAHID---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.664 of 2012, decided on 10th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, refusal of---Accused was alleged to have caused a blow on the leg of the complainant who was trying to rescue the deceased from the co-accused---Contentions of the accused were that he was not alleged to have caused any injury to the deceased; that only allegation against accused was of causing an injury on the leg of the complainant, whereas medical certificate of the complainant showed that only one injury had been caused on his head; that recovery of iron rod was not effected from the accused, and that vicarious liability of the accused would be determined at trial---Validity---Complainant had specifically nominated the accused for causing a blow on his leg with an iron rod---Fact that medical certificate of the complainant did not mention the injury on his leg was immaterial as sometimes blows left no mark, abrasion or swelling, and as such there was no inconsistency between the ocular version and medical evidence---Non-recovery of iron rod from the accused would be of no help to him in presence of ocular testimony which was in line with the medical certificate---Question of vicarious liability of the accused was to be determined from his conduct and overt acts---Accused and co-accused were alleged to have iron rods in their hands which showed their common intention to fight, which ultimately resulted in the death of the deceased, therefore, common intention as provided under S. 34, P.P.C, could not be ignored---Reasonable grounds existed to believe the involvement of the accused in the present offence which carried punishment of death or life imprisonment-Bail application was dismissed, in circumstances.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Ghulam Dastagir and others v. The State 2007 YLR 3297; Abdul Aziz and another v. The State and another 2010 PCr.LJ 1619; Attaullah and 3 others v. The State and another 1999 SCMR 1320; Ismail and 3 others v. The State 2010 MLD 1211; Irfan Ali and nother v. The State 2010 PCr.LJ 1170; Mulo Ahmed v. The State 2011 MLD 1171; Nadeem alias Athar v. The State 2011 PCr.LJ 1479; Ibrahim v. The State 2012 YLR 983; Zulfiqar Ali v. The State 2011 YLR 2270; Kadir Bux alias Porho v. The State 2012 PCr.LJ 690; Fateh Muhammad v. The State 2011 YLR 1774 and Imran Shafique v. The State 2012 YLR 684 ref.

Nasir Mehmood Mughal for Applicant.

Shahid Ahmed Shaikh, A.P.-G. for the State.

Zahoor Hussain Mahar for the Complainant.

Date of hearing: 10th July, 2012.

2012 Y L R 2797

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD NAZEER---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos. S-129 and S-130 of 2012, decided on 13th June, 2012.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Possession of narcotic---Bail, refusal of---Implication on basis of police enmity and political reasons not proved---Non-association of private witnesses in narcotic cases---Scope---Accused and co-accused were allegedly arrested with 4.5 kgs and 5.5kgs of charas (narcotic) respectively---Contentions of accused and co-accused that they had been implicated in the case due to police enmity with their community and due to political reasons; that police had prior information of the incident but did not associate any private witness to act as mashir and therefore committed violation of S. 22 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C---Validity---Accused and co-accused had failed to submit any F.I.R., judgment or documentary proof to establish that they had been involved in the present case due to enmity of the police with their community or due to political reasons---Accused and co-accused were arrested in broad-daylight and their names were mentioned in the F.I.R. and they failed to explain how such huge quantity of narcotic could be foisted upon them by the police---Section 103, Cr.P.C had been excluded by S. 25 of Control of Narcotic Substances Act, 1997, because of which it was not necessary in narcotic cases to associate private persons in the recovery proceedings---Offences alleged fell within the prohibitory clauses of S.497, Cr.P.C---Bail applications of accused and co-accused were dismissed, in circumstances.

2011 MLD 365; 2009 SCMR 954 and 2011 SCMR 165 distinguished.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Possession of narcotic---Bail---Evidence of police officials---Reliance---Scope---Evidence of police officials was as good as that of a private person unless there existed enmity with the police.

Ayaz Hussain Tunio for Applicants.

Shahzada Saleem Nahyoon A.P.-G. for the State.

Date of hearing: 11th June, 2012.

2012 YLR 2804

[Sindh]

Before Sadiq Hussain Bhatti, J

HAMEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-331 of 2012, decided on 13111 June, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860)---Ss.302/109/147/201--Qatl-a-amd, abetment, rioting, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Rule of consistency---Delay in lodging of F.I.R. and recording evidence of star witness---Allegation against the accused and co-accused persons was that they murdered the brother of the complainant, who was in a business partnership with the accused---Contentions of the accused were that there was delay of 3 days in lodging of F. L R.; that complainant intended to usurp the business/property of the deceased and the accused, and that two co-accused had been released on bail and case of accused was on a better footing compared to theirs---Validity---F.I.R. was lodged with a delay of 3 days which had not been plausibly or logically explained---Star prosecution witness, who was present at the time of the incident remained silent for about three days and his statement under S. 164, Cr.P.0 was recorded after 20 days of the alleged incident---Two of the co-accused had already been granted bail by the High Court---Case of the accused was one of further inquiry and he was granted bail accordingly.

Muhammad Daud v. State 2008 SCMR 173 and Zainuddin v. State 2010 YLR 714 ref.

Muhammad Sachal R. Awan for Applicant.

Shahzada Saleern Nahyoon, A.P.-G. for the State.

Imtiaz Ali Chanio for the Complainant.

Date of hearing: 11th June, 2012.

2012 Y L R 2809

[Sindh]

Before Syed Hasan Azhar Rizvi and Salahuddin Panhwar, JJ

HASSAN JAMEEL ANSARI and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and another---Respondents

Constitutional' Petitions Nos.D-2136 and D-2170 of 2012, decided on 18th July, 2012.

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

----S.497---Bail, grant of--Consideration--Assessment of evidence---Words "reasonable grounds to believe "---Scope---While deciding bail application, only tentative assessment is to be made; it is to be seen whether prima facie existence of reasonable grounds are available against accused for offence falling within prohibitory clause of S.497, Cr.P.C. or otherwise---Prosecution has to prove reasonable grounds to believe that accused has committed crime---Liberty of a person is prince consideration as envisaged by all laws and only S.497(1), Cr.P.C. prohibits release of accused in certain conditions---Such conditions must be proved by prosecution, else every citizen has right of liberty and cannot be put in jail without reasonable grounds.

(b) Stare decisis, principle of---

----Definition---Stare decisis, means to stand by a decision and not to disturb the undisturbed---Courts should generally, abide by precedents and not disturb settled matters.

(c) Precedent---

----Advantage---Scope---Advantage of system of precedents is that legal principles are framed not merely a conceptions in abstracto but as practical rules operating in concreto.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss.497 & 498-Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Bail, grant or refusal of---Parameters---Bail can be granted under Constitutional jurisdiction and parameters for grant and refusal of bail are the same as defined under Ss.497 & 498, Cr.P. C.

NAB v. Khalid Masood and another 2005 SCMR 1291; Haji Ghulam Ali v. The State 2003 SCMR 597 and Abdul Aziz Niazi v. The State PLD 2003 SC.668 rel.

(e) National Accountability Ordi?nance (XVIII of 1999)---

----Ss.9 (a) (ix) (x), Sched., item 5 & (b)---Criminal Procedure Code (V of 1898), S.497(2)---Constitution???? of??????????? Pakistan, Art.199---Constitutional petition---Pre arrest bail, grant of---Further inquiry---Prima facie case---Proof---Principle of consistency-Applicability-Documentary evidence---Petitioners were nominated as accused in reference filed by NAB, alleging criminal breach of trust, cheating members of public at large and causing loss to public exchequer to the extent of Rs. 5.64 billion---Plea raised by petitioners was that no role had been assigned to them and whole case was based on documentary evidence, veracity of the . same would be determined at trial stage---Validity---Not sufficient to merely allege that heinous offence was committed but such contentions required unbroken chain leading towards crime---No direct allegation was levelled against petitioners except misfeasance---Whole reference revolved upon co-accused, as was evident from record and no evidence was available to connect direct involvement of petitioners in subject matter prima facie and with reasonable grounds---Prosecution would have an opportunity to prove the guilt of petitioners by producing cogent evidence at the time of trial-ht cases of liability of misuse of authority, without any direct proof of beneficiary or involvement, post arrest and pre-arrest bail could be granted---Role of one co-accused was more than the petitioners, who had already been granted bail by High Court, therefore, petitioners were entitled for same treatment on the score of plea of rule of consistency---Case of both the petitioners fell in the category of further inquiry and they were entitled to bail---Petition was allowed in circumstances.

Muzammal Niazi v. The State PLD 2003 Kar. 526; Muzafar Ayaz Abid v. NAB 2008 SCMR 1316; Lal Muhammad Kalhoro v. The State 2007 SCMR 843; Muhammad Nawaz v. The State PLD 2008 SC 438; Nadeem Hussain v. The State 2012 MLD 362; Manzoor Hussain v. The State 2011 SCMR 902; Muhammad Shoib Wasti v. The State 2009 YLR 155; Hakim Ali Zardari v. The State PLD 1998 SC 1; Abid Ali alias All v. The State 2011 SCMR 161; Anwar Saifullah v. The State 2001 SCMR 1040; Javed Hashmi v. The State 2003 PCr.LJ 266; Muhammad Zafar Maniar v. Shahzad Ahmed and others 2011 MLD 602; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; Jan Muhammad v. The State 2000 P.Cr.LJ 1123; 2003 PCr.LJ 1230, Muhammad Nasim Khan v. Fida Khan 1993 PCr.LJ 1795; Painda Khan v. Muhammad Sidiq 1968 PCr.LJ 1880; Hassan Bano v. Mumtaz Younis PLD 1989 SC 346; Jamalddin v. The State 1985 SCMR 1949; PLD 2003 SC 668; 2009 PCr.LJ 101, 2011 SCMR 1123; 2012 MLD 830; Lal Muhammad Kalhoro v. The State 2002 SCMR 843; Najma Swaleh Syed v. The State 2008 YLR 1087; Nazar Muhammad v. NAB 2010 MLD 223; : Zulfiqar Ali Abbas v. The State 2008 YLR 2229; 2008 YLR 2217, Frida Rohal v. The State 2007 MLD 347; Dr. Mirza Raza Ali v..The State 2007 PCr.L,T 1088; 2008 MLD 1400, PLD 2005 Kar. 558; Shahid Hussain Awan v. The State 2008 YLR 1081; Azam Solangi v. The State 2008 YLR 795; Abrar Ahmed v. NAB 2007 PCr.LJ 1116; Syed Mohsin Abas Abidi v. NAB 2007 PCr.LJ 1097; Faisal Hussain But v. The? State 2009 SCMR 133; Syed Javed Iqbal Bukhari v. The NAB PLD 2003 Lah. 669; Muhammad Khalid v. The State PLD 2003 Lah. 94; Muhammad Najeeb v. The State. 2009 SCMR 448; Abdul Majeed alias Bhola v. The State 2000 YLR 1368; 1998 PCr.LJ 251; Meeran Bux v. State PLD 1989 SC 347; Tariq Javed Afridi v. TheState PLD 2002 Lah. 233; Anwar Saifullah Khanv. The State PLD 2002 Lah. 458; Muhammad Sarwar v. The State 2008 YLR 304 and Shaikh Aijaz Ahmed v. DG NAB 2009 PCr.LJ 1019 rel.

England AIR/Volume 1/Huckbery v. Elliol 1970-189 and two Indian Citations (1998) 5 SC 343; State of Haripur v. Brij Betal and others: Life Insurance Corporation v. Hari Das Mindhra and others Allahabad High Court 914-1962 and Mrs. Riaz Qayyum v. The State 2004 SCMR 1889 distinguished.

Abdul Hafeez Lakho, Senior Counsel Faisal Siddiqi, Shaukat Hayat for Petitioners.

Noor Muhammad Dayo, Senior Prosecutor NAB.

Ms. Shiraz Iqbal, Standing Counsel.

2012 Y L R 2822

[Sindh]

Before Riazat Ali Sahar, J

GODHO alias MUHAMMAD SIDDIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-40 of 2012, decided on 10th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-a-amd, common inten­tion---Bail, grant of---Jumping bail during trial---Re-release on bail' on enhancement of surety---Accused had jumped bail during trial and ' absconded for about 5 months due to alleged fear of enmity---Subsequently accused was arrested in some other crime, where after he continuously attended the Trial Court---Contention of accused was that he remained in detention for more than one year after his arrest, which was sufficient punishment for jumping bail during trial---Validity---Accused had been detained for a period of more than one year and nothing adverse had been placed by the prosecution in respect of the conduct of the accused---Accused was allowed bail and released by enhancing the surety amount.

Zaheer Ahmed v. The State, 1983 PCr.LJ 2600; Malik Pahar Khan and another v. The State 2012 YLR 43 and Dosoo v. The State 2003 PCr.LJ 933 ref.

Muhammad Saleem Jeesar for Applicant.

Musab Baleegh Dhamrah, State counsel.

2012 Y L R 2836

[Sindh]

Before Shahid Anwar Bajwa and Sadiq Hussain Bhatti, JJ

ABID alias BAGOO BHATTI---Appellant

Versus

THE STATE---Respondent Criminal Jail Appeal No.D-137 and

Confirmation Case No.7 of 2007, decided on 19th July, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Case property/single barrel gun, empties and the live bullets, allegedly recovered were sent to Forensic Science Laboratory after 18 months of their recovery---Contradiction existed in the statements of the Mashirs with regard to quantities of empties and bullets and sealing of said items---Case of the prosecution against accused was not free from doubt and benefit of such doubt must be given to accused---Accused was acquitted by granting him benefit of doubt and he was ordered to be released, in cir­cumstances.

Imran Hussain v. Amar Arshad 19979 SCMR 438; Asim and another v. The State PLD 2004 Quetta 123; Anwarul Hassan v. The State 1980 SCMR 649 and Muhammad Mansha v. The State PLD 1996 SC 229 distinguished.

Muhammad Irfan v. The State PLD 2008 Kar. 182 and Misri and 3 others v. The State 1984 PCr.LJ 2832 ref.

Miss Parveen Chachar for Appellant.

Shahzado Saleem Nahiyoon, A.P.-G. for Respondent.

Dates of hearing: 4th and 5th July, 2012.

2012 Y L R 2844

[Sindh]

Before Sadiq Hussain Bhatti, J

SHAMS-UL-HAQ and 2 others---Applicants

Versus

THE STATE---Respondent

M.A. No. 3648 in Criminal Appeal No.184 of 2012, decided on 13th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302/34---Qatl-a-amd, common inten­tion---Application for suspension of sentence, dismissal of---Welfare of suckling baby---Appeal in the case was ready for hearing---Effect---Deceased died of burns after. she was engulfed in fire while working in her kitchen---Deceased implicated accused (mother of suckling baby) and co-accused persons for the commission of the offence---Trial Court convicted and sentenced accused under Ss.302 & 34, P.P.C-Contentions of accused were that she was married woman with three children and one of her child was a suckling baby, who was about two years old; that facilities inside prison were not adequate for bringing up a suckling baby and 'welfare of the child demanded that accused be kept in a better environment; that incident was unseen and allegations were general in nature; that there was a delay of three months in lodging F.LR., and that statements of witnesses were recorded after a delay of about three months---Validity---Paper-book was ready and case was ready to be argued, therefore, there was no reason to cause any unnecessary delay---Court was conscious of the fact that accused had to take care of her three minor children including a suckling baby and her ordeal was supported by opinion of the court that everything was ready, so much so that paper-book was in hand, hence matter might be fixed for regular hearing and finally argued out---Application for suspension of sentence was dismissed in circumstances.

1971 SCMR 657; 1978 SCMR 149; 2012 SCMR 997; 1996 SCMR 973; 1998 MLD 1350; 1994 PCr.LJ 514; 2004 MLD 1423; Muhammad Yousuf v. State Criminal Appeal No. 204 of 2007; Shakeel Ahmed v. State Criminal Appeal No.65 of 2004 and Mst. Rabia v. The State Criminal Appeal No.123 of 2012 distinguished.

Muhammad Ashraf Kazi for Applicants

S. Nadeem Abbas for the Complainant.

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

2012 Y L R 2849

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD SOHAIL MEMON--- Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.60 of 2012, decided on 29th August, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523 & 561-A---Car, Superdari of---Bona fide purchaser---Remedy---Car in question was owned by complainant which was taken by accused by cheating and fraud---Police, on F.I. R. registered by complainant, had taken the car into custody from another person, who claimed to be the bona fide purchaser from accused for valuable consideration---Validity---Disputed car was purchased by accused from complainant against sale consideration of Rs : 790, 000 who had sold the vehicle to applicant on the very next day for sale consideration of Rs. 640, 000 by sustaining monetary loss of Rs.150, 000 in one day---Such act on the part of accused itself had spoken some foul play and indicated that transaction so far made in haste in respect of disputed car was only to create obstacle for complainant---Accused when purchased disputed car from complainant on the basis of forgery and fraud, was not allowed to sell the same---Applicant though had claimed to be bona fide purchaser of disputed car but he could not be treated as lawful owner; at the most, applicant could avail legal remedy to recover his loss, if any, from accused---High Court directed Trial Court to decide case expeditiously and declined to interfere in superdari order in favour of complainant, passed by Lower Appellate Court---Application was dismissed in circumstances.

Hassan Muhammad v. Nazar Hussain and others 2005 SCMR 1063; Ali Muhammad v. Additional Sessions Judge and others 2007 MLD 1096; Mst. Shaheen Begum v. S.H.O. (ACLC) and others 2005 MLD 176; Khawaja Fazal Karim v: The State and others 1986 SCMR 483 and The State through ANF Gilgit v. Chidi and 7 others 2007 PCr.LJ 1306 ref.

Qaiser Shafeeq Vohra v. The State and Muhammad Saleem 1991 MLD 2590 rel.

Ali Akber Poonawala for Applicant.

Muhammad Tariq for Respondent No.2.

Seema Jabeen Assistant Prosecutor General Sindh.

Date of hearing: 8th August, 2012.

2012 Y L R 2859

[Sindh]

Before Sadiq Hussain Bhatti, J

FAWWAD SHAFI---Petitioner

Versus

THE STATE---Respondent

S.M.A. No.52 of .2012, decided on 24th August, 2012.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Letter of Administration and succession certificate, issuance of---Petitioner sought issuance of Letter of Administration/succession certificate in respect of estate left behind by his deceased mother---Notice was served on all legal heirs of deceased and on general public through advertisement published in a daily newspaper---No one appeared from any quarter to raise any objection---All legal heirs of deceased had executed special power of attorney in favour of petitioner rand also filed their affidavits of no objection to the grant of Letter of Administration in favour of petitioner---Two independent witnesses had fled their affidavits stating therein that they knew the family of deceased well and affirmed that legal heirs of deceased mentioned in the present petition were the only legal heirs of deceased---High Court, in circum­stances, directed office to issue Letter of Administration in favour of petitioner subject to rules.

Qazi Anwar Kamal for Petitioner.

Petitioner in person.

2012YLR2881

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mst. AZIZA---Applicant

Versus

SSP, DISTRICT TANDO MUHAMMAD KHAN and 3 others---Respondents

Criminal Miscellaneous Application No.S-411 of 2012, decided on 5th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Application for recovery of minor---Minor girl aged about 7 years living with her aged grandparents and cousin, who fell within the prohibited degree---Effect---Contention of mother of minor (petitioner) that grandparents of minor were above 70 years of age and that the grandfather could not even walk and was confined to bed---Validity---Relationship between minor and her cousin ,fell within the prohibited degree---Although the minor was reluctant to go with her mother, but it was in the best interest of the child that she lived with her real mother instead of her cousin and grandparents who could hardly walk and hence could not contribute towards welfare of the minor---Mother, under Islamic law, of all persons, was best entitled to the custody of the minor girl---Application for recovery of minor was allowed, in circumstances.

PLD 1997 SC 852; 2009 YLR 552(1); 2005 YLR 2424; 1984 PCr.LJ 2582; Mst. Khalida Parveen v. Muhammad Sultan PLD 2004 SC 1 and Ahmed Sami v. Saadia Ahmed 1996 SCMR 268 rel.

Sikandar Ali Khaskheli for Applicant.

Syed Meeral Shah D.P.G. for the State.

Shahnawaz Brohi for Respondent No.3.

2012 Y L R 2895

[Sindh]

Before Naimatullah Phulpoto, J

ALI MUHAMMAD and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-151 of 2012, decided on 27th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395/353/324/364---Dacoity, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd, kidnapping or abducting in order to murder---Bail, grant of---Further inquiry---Unnatural story---Probability of false implication---Benefit of doubt---Allegation against accused persons was that they fired upon the police with intention to kill and also snatched official weapons from the police and kidnapped two police constables with the intention to murder them---Perusal of F.I. R., statements of witnesses under S. 161, Cr.P.0 and other material collected during investigation showed that apparently prosecution story was unnatural---Despite cross-firing with sophisticated weapons for about 20 minutes, no one received any injury from both sides---Empties recovered from place of incident were not sealed and sent to ballistic expert for report---False implication of accused persons could not be ruled out when enmity had been alleged against police---Mere word of police officials without incriminating evidence would not be sufficient to disentitle accused persons from the concession of bail---All prosecution witnesses were police officials therefore there was no question of tampering with evidence---Accused persons were in jail since last nine months---Benefit of doubt was extended to accused persons---Case required further inquiry---Accused persons were granted bail, in circumstances.

Mour v. The State 2008 PCr.LJ 1277 and S. Amanullah Shah v. The State PLD 1996 SC 2412 rel.

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

----S. 497---Bail---Police officials, evidence of---Scope---Mere word of police officials without incriminating evidence would not be sufficient to disentitle accused from the concession of bail.

Manzoor Ahmed Junejo for Applicants.

Mohan Lal D.D.P.P. for the State.

Date of hearing: 27th August, 2012.????? .

2012 Y L R 2901

[Sindh]

Before Naimatullah Phulpoto. J

ALLAH DINO UMRANI--Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-197 of 2012, decided on 30th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9 (b) & 9(c)--Possession of narcotic---Bail, grant of.---Border-line case--Benefit to be given to accused---Scope---Accused was arrested by the police on spy information and allegedly 1100 grams of Maras was recovered from his ,possession---Investigation of case was complete--Prosecution witnesses were police officials, therefore, there was no question of tampering with prosecution evidence---Accused had alleged enmity with the police---No private person was made mashir---Alleged recovery of 1100 grams was a border line case between S.9(b) and (c) of Control of Narcotic Substances Act, 1997, benefit of which could be extended to the accused even at bait stage---Delay in sending samples to Chemical Examiner was admitted---Accused was admitted to bail, in circumstances.

Muhammad Naeem v. State 2011 YLR 858 rel.

Syed Sikandar All Shah for Applicant.

Abdul Rasheed Soomro, State Counsel.

2012 Y L R 2907

[Sindh]

Before Farooq Ali Channa, J

Miss SHAGUFTA PARVEEN KHAN---Appellant

Versus

FATEH JUNG and 2 others---Respondents

Criminal Acquittal Appeal No.520 of 2010, , decided on 10th September, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 4-Criminal Procedure Code (V of 1898), Ss.417(2-A), 403 & 265-K---Illegal dispossession---Appeal against acquittal---Complainant had alleged that accused persons after demolishing the boundary wall merged plot belonging to father of complainant with their house; and thereby occupied the same illegally---Complainant had filed complaint under Ss.3/4 of Illegal Dispossession Act, 2005---Accused filed application under S.265-K, Cr.P.C., which after notice to complainant was heard and allowed; and accused were acquitted by the Trial Court, observing that father of the complainant sent legal notice though his advocate to accused persons mentioning that they in the year 1998, had broken the back side wall of property in question and occupied the same illegally; that since Illegal Dispossession Act, 2005 was promulgated on 6th June, 2005, without having retrospective effect, no cognizance of offence of illegal dispossession before promulgation of said Act, could be taken under the Act---After trial of the same incident mentioned in the F. L R., accused were acquitted, whereas in the second round of litigation, complaint under Illegal Dispossession Act, 2005 was withdrawn---Accused, in circumstances, would stand acquitted in accordance with the provisions of 5.403, Cr.P.C.---Trial Court while acquitting accused persons had exercised its powers vested in S.265-K, Cr.P.C. correctly and in accordance with law by applying judicial mind-Impugned order due in view of the facts and proposition of law, needed no interference of the High Court.

Muhammad Yaqoob v. The State and 3 others 2004 PCr.LJ 301; Mst. Zaib­un-Nisa v. Rehmat and 2 others 2011 PCr.LJ 866 and 2011 YLR 1566 distinguished.

Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298; Mst. Sahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427 and The State v.. Raja Abdul Rehman 2005 SCMR 1544 ref.

Jehangir Khalid and others v. Ghulam Farooq and others 2007 MLD 573 rel.

Shamshad Ali Qureshi for Appellant.

Javed Haleem for Respondents Nos. 1 and 2.

Khadim Hussain A.P.-G. for Respondent No.3.

Dates of hearing: 18th July and 10th September, 2012.

2012 Y L R 2914

[Sindh]

Before Aqeel Ahmed Abbasi, J

Syed NAVEED ALI---Appellant

Versus

THE STATE---Respondent.

Criminal Appeal No.22 of 2010, decided on 3rd October, 2012.

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

---S. 426(1-A)---Penal Code (XLV of 1860), Ss. 365/34/376(2)---Kidnapping or abducting with intent secretly and wrongfully to confine person, common intention, rape---Delay in disposal of appeal---Suspension of sentence---Grant of bail---Certificate from Jail Superintendent showed that accused was not a previous convict and his conduct in prison remained satisfactory---No adjournments had been taken by counsel for accused during pendency of appeal---Appeal had been adjourned on a number of occasions for want of time---During pendency of appeal accused had moved urgent applications for hearing of his application under S. 426, Cr.P.0 but sane was not decided---Sentence of accused was suspended and he was released on bail in circumstances.

Muhammad Yaqub v. Munawar Sher 1999 SCMR 1323; Bahadar and 5 others v. The State 1997 SCMR 1183; Shabeer v. The State 2012 SCMR 354; Ghulam Qadir alias Azeem and another v. The State 2010 MLD 1948 and Insaaf and 2 others v. The State 2012 YLR 1588 rel.

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

----S. 426(1-A)---Suspension of sentence---Discretion of court---Scope---Word "shall" used in section 426(1-A), Cr.P.0 had been inserted to make it mandatory for the court to release an accused on bail by suspending his sentence during pendency of appeal if his case felt within the categories enumerated in sub-clauses (a), and (c) of section 426 (1-A), Cr. P. C and his case did not fall within the exceptions provided in proviso to section 426 (I -A)(c), Cr.P.C.

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

---S. 426(1-A)---Application for suspen?sion of sentence---Examination of merits of case by the court---Scope---No discretion was left with the court to examine merits of the case.

Sikandar alias Dhuni and another v. The State 1995 PCr.LJ 1522 and Raja Abdul Majeed v. The State PLD 1997 Kar. 358 rel.

Aamir Mansoob Qureshi for Appellant. .

Abdullah Rajput, A.P.-G. for the State.

Date of hearing: 24th September, 2012.

2012 Y L R 2921

[Sindh]

Before Riazat Ali Sahar, J

Mst. KAREEMA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.420 of 2012, decided on 31st August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qanun-e-Shahadat (10 of 1984), Art. 43---Qatl-a-amd, common intention---Bail, grant of---Further inquiry---Accused was implicated on basis of confession of co-accused---Evidentiary value of such confession at bail stage---Scope---Body of deceased was found at the house of the accused---Accused was implicated in the case on the basis of further statement of complainant and on the basis of confessional statement of concussed---Name of accused did not transpire in the F.I.R.---No incriminating article including weapon was recovered from possession of accused---Further statement of complainant on basis of which accused was implicated did not show any proper source of information regarding involvement of accused---Confessional statement of co-accused by which he implicated the accused was hit by Art. 43 of Qanun-e-Shahadat, 1984, therefore, it had no evidentiary value at bail stage but could be treated as circumstantial evidence at the time of trial---Accused was no more required for further investigation and her case required further probe---Accused was admitted to bail in. circumstances.

Syed Shahzad Ali Shah for Applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh for the State.

Ghazanfar All Bhutto for the Complainant.

Date of hearing: 31st August, 2012.

2012 Y L R 2942

[Sindh]

Before Riazat Ali Sahar and Munib Akhtar, JJ

JEHANGIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-826 of 2011, decided on 16th August, 2012.

Criminal Procedure Code (V of 898)--

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/ 324/ 353/ 147/ 148/ 149---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7--- Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, grant of---Further inquiry---Accused and. co-accused persons were alleged to have fired at a police party which resulted in the death of a police official---Accused was implicated in the case on the basis of identification parade and recovery of weapon---Name of accused did not transpire in the F.I.R.-Identification parade was delayed by about 6 days, which had not been accounted for by the prosecution---During identification parade accused raised the objection that witnesses had seen him many times at the police station during his remand---Such objection of accused was noticed by the Magistrate, therefore, possibility of accused having been shown to the prosecution witnesses before conducting of identification parade could not be ruled out---Weapon was allegedly recovered from accused after about 3 months of the incident and after 7 days of his arrest on his pointation---Recovery of weapon from accused was also doubtful because the F.I.R. showed that all accused persons were armed with Kalashnikovs but weapon allegedly recovered from accused was a pistol- -Challan had been submitted against accused and he was no more required for further investigation---Case against accused required further inquiry and he was allowed bail accordingly.

Aijaz Shaikh for Applicant.

Syed Meeral Shah, U.P.G. for the State.

Date of hearing: 16th August, 2012.

2012 Y L R 2949

[Sindh]

Before Syed Zakir Hussain, J

Syed MUHAMMAD RAZA and another---Appellants

Versus

ZAHOOR AHMED---Respondent

Second Appeal No.5 of 2008, decided on 7th October, 2010. '

Limitation Act (IX of 1908)---

----Art. 142---Specific Relief Act (I of 1877) S. 8---Suit for possession of immovable property was decreed concurrently---Limitation---Contention of the defendant was that he took possession of the suit property in the year 1978 whereas the suit was filed by the plaintiff in the year 2000; and therefore, under Art.142 of the Limitation Act, 1908; the suit. was barred by time---Validity---Contention of the defendant was misconceived as 1978 was the year of the defendant to be put into possession with the consent of the owner as a friendly gesture or otherwise but for no reason for physical dispossession (giving a cause of action to the plaintiff to sue the defendant for possession) and such situation continued until the service of notice which had discontinued the entire relationship of the previous period between the parties in all respects as far as the property and its occupation were concerned---Notice itself determined or discontinued the continuity of the alleged unauthorized possession, if any, and defendant had stood inducted in possession under an alleged sale agreement .and the past period of illegal possession, as claimed as defence in the suit, had stood washed out and a fresh cause of action arose to the plaintiff to sue the defendant---Appeal was dismissed.

2006 MLD 89; PLD 2009 SC 95 and 2003 CLC 200 ref.

Riaz Ahmed Khan for Appellants.

Ghazanfar Ali and Ms. Tabassum' Ghazanfar for Respondent.

2012 Y L R 1

[Lahore]

Before Sagheer Ahmad Qadri and Ijaz Ahmad, JJ

PAKISTAN SERVICE LTD.---Appellant

Versus

D.C.O., RAWALPINDI and others---Respondents

I.C.A. No.17 of 2009, decided on 16th May, 2011.

West Pakistan Tolls on Road and Bridges Ordinance (VIII of 1962)---

----Ss. 3 & 6---Constitution of Pakistan, Arts. 25 & 199---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court Appeal---Aggrieved person---Scope---Levy of tax---Vires---Discrimination---Appellant company was running a hotel and was aggrieved of notification imposing Rs.200 per vehicle per visit as toll tax on the road exclusively leading to its hotel---Plea raised by authorities was that appellant was not an 'aggrieved person'---Validity---Person intending to visit appellant's hotel to take a cup of tea, would think twice to pay Rs.200 as toll tax at the entry of the hotel, therefore, imposition of the tax at such rate affected the business of appellant---Even if actual damage was not caused to appellant, even then, it had been injured---Appellant was an aggrieved party as it was personally interested in performance of functions by authorities in accordance with law in a fair and reasonable manner---Toll could be imposed under sections 3 and 6 of West Pakistan Tolls on Road and Bridges Ordinance, 1962, on vehicles using the bridges and plying on roads but tax imposed had to be indiscriminatory, reasonable and rational---Notification in question betrayed grave discrimination against appellant and toll tax was not levied on vehicles in general that used the road and caused its wear and tear but was levied on the vehicles bound for the hotel only---Law referred in the notification had permitted levy of tax on account of use of roads and bridges but tax levied by notification in question was destination oriented---Notification in question smelt discrimination and grudge, therefore, the same was illegal and liable to be set aside---High Court, in order to eliminate every type of discrimination directed that toll tax post should be shifted from the point of entry to the hotel and be established at a point where approach road to the hotel started and all vehicles except those exempted in notification in question should be made to pay the toll tax irrespective of their destination---High Court further directed the authorities to reduce the toll tax from Rs.200 to Rs.50 or less---Intra-court appeal was allowed accordingly.

English Biscuits Manufacturers (Pvt.) Ltd. and another v. Monopoly Control Authority and others 2005 CLD 264; Chaudhry Ali Muhammad Chacha v. Azad Government and 4 others 2008 CLC 1648; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Dr. Abdur Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCMR 483 rel.

Muhammad Shafiq and others v. Town Committee, Digri and others PLD 1999 Kar. 99; Abdul Aziz and others v The State and others PLD 1992 Kar 378; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Messrs Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others PLD 2006 Kar 479 ref

Naeem Bokhari, and Ijaz Janjua for Appellants.

M. Siddique Awan for Respondents Nos.2 and 3

Raja M. Hameed, A.A.-G

Iftikhar Ahmad, XEN, Highway, Rawalpindi.

2012 Y L R 10

[Lahore]

Before Altaf Ibrahim Qureshi, J

UMAR FAROOQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2400-B of 2011, decided on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.394/412---Voluntarily causing hurt in committing robbery, dishonestly receiving property stolen in the commission of robbery---Bail, grant of---Further inquiry---Identification parade which ought to have been conducted as early as possible; was conducted after more than one month after the incident---Neither the role of the petitioner was evident from the contents of the F.I.R. nor his features were described, in absence whereof the identification parade, prima facie, had lost its significance and could hardly be believed---Co-accused who was the main accused, had been declared innocent and was discharged by the Magistrate---Other three co-accused were also declared innocent and were discharged by the Magistrate---Such fact had cast serious doubt about mode of involvement of various persons including the accused---Car in question had been taken into possession under S.550, Cr.P.C. and same had been identified by the complainant---Accused was neither named nor any material was available connecting him with the offence under S.412, P.P.C., could come on record---Such fact also was in favour of the accused---Accused was imprisoned in jail since 1-4-2011, his further detention for an indefinite period would be of no avail to the prosecution, when there was no progress in the trial---Case of accused required further probe into his guilt within the ambit of S.497(2), Cr.P.C., he was admitted to post-arrest bail in circumstances.

Pirzada Niaz Mustafa Qureshi for Petitioner

Hasan Mehmood Khan Tareen, D.P.-G for the State

Saeed Ahmad Khan Sherwani for the Complainant.

Irshad Hussain, S.I.

2012 Y L R 18

[Lahore]

Before Nasir Saeed Sheikh, J

ASGHAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5824-B of 2011, decided on 3rd June, 2011.

(a) Interpretation of statutes---

----Definition---Where definition of a particular term commences with the word "means" it is to be interpreted strictly and all other meanings which are not mentioned in the definition of such a terms are to be excluded.

(b) Police Order (22 of 2002)---

----Art.155-C---Criminal Procedure Code (V of 1898), Ss. 498, 4(f) & (n), Sched.II & Ch.23---Misconduct by police officer---Pre-arrest bail, grant of---Article 155-C of the Police Order, 2002, had prescribed the maximum sentence of three years' R.I. for the misconduct of the accused Police Officer, which did not fall within the definition and concept of "cognizable offences" provided for in Sched.II and Chapter 23, Cr.P.C., wherein the offences against other laws had been dealt with---Accused, thus, could not be arrested by the Police without getting a warrant of his arrest from a competent court in the case and he was entitled to the grant of pre-arrest bail---Interim pre-arrest bail allowed to accused was confirmed accordingly.

Shahid Hussain and another v Additional Sessions Judge Taunsa Sharif Distt D.G.Khan and others 2011 YLR 294; Muhamad Zubair Malik v. S.H.O. and 5 others PCr.LJ Lahore 1358 and 1999 MLD 844 distinguished.

(c) Interpretation of statutes---

----Penal provisions---For the purpose of interpreting penal provisions of a statute strict interpretation has to be adopted for the language used by the Legislature in the relevant law.

Altaf Hussain Lashari for Petitioner

Malik Abdul Aziz Awan, A.A.-G

Ch. Muhammad Mustafa, D.P.-G., and Muhammad Afzal, Inspector/I.O. for Respondents

2012 Y L R 24

[Lahore]

Before Rauf Ahmad Sheikh, J

YASIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.10313-B of 2011, decided on 9th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497, proviso 5th [as amended by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Bail, grant of---Accused was behind the bars for the last two years and two months---Accused sought adjournment due to non-availability of his counsel and case was adjourned for one month---Such delay of one month occurred due to request of accused---Co-accused sought adjournment due to demise of his cousin and said adjournment could not be attributed to accused---Counsel for the complainant and accused were not available on one date, and adjournment was granted, which could not be attributed to accused alone---Submission of accused for trial under the Juvenile Justice System Ordinance, 2000, could not be deemed to be contumacious act and the delay, which took place in disposal of the relevant petition, could not be deemed to be a fault on part of accused; because every one had right to seek remedy from the court in accordance with law---If the period of one month was excluded from the total period of detention in the Jail as under trial prisoner, the net period was more than two years---No substantial progress had been made towards conclusion of the trial---Accused was not a previous convict for commission of an offence punishable with death or imprisonment for life; he was neither a hardened nor a desperate criminal---Contention of counsel for the complainant and State Counsel that he was the principal accused of the case, was not sufficient to conclude that he fell in said category---Accused was entitled to bail under 5th Proviso of S.497, Cr.P.C.---Accused was released on bail, in circumstances.

Akhtar Hussain Bhatti for Petitioner

Shahid Bashir Chaudhary, D.P.G. for the State, along with Muhammad Rafiq, S.I. with record.

Ch. Muhammad Aslam for the Complainant

2012 Y L R 29

[Lahore]

Before Syed Ejaz Hussain Shah, J

Syed SIBTAIN RAZA GILANI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE/ JUSTICE OF PEACE, MULTAN

and 4 others---Respondents

Writ Petition No.11190 of 2011, decided on 6th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Penal Code (XLV of 1860), S.489-F--- Constitution of Pakistan, Art.199---Constitutional petition---Dis-honestly issuing a cheque---Application for registration of case to Justice of Peace---Petitioner filed two applications under S.22-A, Cr.P.C. for registration of case, but in his constitutional petition had concealed the filing of the other applications by him, because a different story was given in the said other applications---Justice of Peace took note of said contradictory stand and after considering the report of the local Police, dismissed the petitioner's application---Justice of Peace before whom application under S.22-A(6), Cr.P.C. was moved to seek a direction to the S.H.O. concerned for registration of a case was not expected and required to allow the request of the complainant mechanically, blindly and without application of legal mind and he was competent to examine the complaint with full application of legal mind and was not supposed to accept and believe the averments of the complainant as gospel truth---High Court was under no obligation to issue a direction for the registration of a matter, in each and every matter irrespective of the facts and circumstances, which could call for exercise of judicial restraint in turning down such request in view of the conduct of the party, besides considering that adequate remedy in the form of private complaint was available to the complainant---Impugned order of Justice of Peace, did not call for any interference, in circumstances.

Muhammad Mushtaq v. Additional Sessions Judge, Lahore and others 2008 YLR 2301; Habibullah v. Political Assistant Dera Ghazi Khan and others 2008 SCMR 951 and Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2001 SC 691 ref.

Muhammad Khalid Farooq for Petitioner

Khursheed Ahmad Solgi for Respondent No.5

Mubashar Latif Gill A.A.-G

2012 Y L R 34

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHAHID MUSTAFA---Petitioner

Versus

MUNIR AHMAD, A.D.J and others---Respondents

Writ Petitions Nos.21415 to 21419 of 2011, decided on 28th September, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 9(b) & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment proceedings---Rent agreement not brought in conformity with provision of S. 5 of Punjab Rented Premises Act, 2009---Tenant's plea that Rent Tribunal had no jurisdiction to entertain ejectment petition---Order of Tribunal dismissing ejectment petition set aside by Appellate Court remanding case to Rent Tribunal for its decision afresh after having compliance of S. 9(b) of Punjab Rented Premises Act, 2009---Validity---Tribunal after having case on its file and before assuming jurisdiction had to seek compliance of S.9(b) by directing one of parties to deposit penalty in terms thereof---Tribunal in case of non-compliance of such order would not have jurisdiction to enter ejectment petition---Intention of law had never been to non-suit a party without affording him an opportunity to comply with provision of law---Appellate Court in remanding case had advanced cause of justice in its true spirit---High Court dismissed constitutional petition in circumstances.

Allah Ditta Sajid v. Muhammad Saleem Qureshi and others (C.P. No.3490-L 2010); PLD 1984 SC 289 and Muhammad Faiz and another v. Ch. Yaqoob Hussain and others PLD 2010 Lahore 197 rel.

(b) Administration of justice---

----Intention of law had never been to non-suit a party without affording him an opportunity to comply with provision of law.

PLD 1984 SC 289 rel

Mirza Hafeez-ur-Rehman for Petitioner

2012 Y L R 41

[Lahore]

Before Sagheer Ahmad Qadri, J

Mst. NUSRAT BIBI---Petitioner

Versus

GHULAM AHMAD---Respondent

Civil Revision No.306-D of 2011, decided on 23rd June, 2011.

(a) Administration of justice---

----Penal provisions---Applicability---Whenever a provision of law requires doing of any act on the part of a party which entails a penalty, then court passing any such order must pass a specific and unambiguous order directing such a party for compliance of that order.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.24 (1), 2nd proviso---Civil Procedure Code (V of 1908), O.VII, R.11---Zar-e-Soam, deposit of---Determination of sale price---Rejection of plaint---Plaint filed by pre-emptor was rejected by Trial Court on the ground that less amount of Zar-e-Soam was deposited by pre-emptor after the period of prescribed thirty days---Validity---Pre-emptor was claiming that actual price according to her version was less than that shown in the sale mutation---Trial Court was obliged under 2nd proviso to section 24(1) of Punjab Pre-emption Act, 1991, to pass specific order giving exact amount as 1/3rd price (Zar-e-Soam) to be deposited on or before a specific date---Order passed by Trial Court rejecting the plaint and subsequently upheld by Lower Appellate Court was illegal and without lawful justification, therefore, the same was set aside---High Court remanded the matter to Trial Court with a direction to pass a specific order as required under 2nd proviso to section 24(1) of Punjab Pre-emption Act, 1991, directing pre-emptor to deposit Zar-e-Soam within stipulated time---Revision was allowed accordingly.

Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091 and Tariq Mehmood Anjam v. Allah Ditta through Mukhtar-e-Aam 2008 CLC 479 rel.

Gulzar Ahmad v. Sardar Alam and 9 others 2001 CLC 1693; Muhammad Akbar v. Muhammad Malik and another PLD 2005 Lah 1; Rana M. Siddique v. Additional District Judge, Bahawalnagar and others PLD 2005 Lah 647; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Mst. Parveen Akhtar and another v. Muhammad Sattar PLD 2006 Lah. 410; Muhammad Yousaf and another v. Civil Judge, Sargodha and 2 others 2004 YLR 437 and Ghulam Yasin and others v. District Judge and others 2002 YLR 1580 ref.

Shaukat Rauf Siddiqui for Petitioner

Masroof Chaudhary for Respondent

2012 Y L R 54

[Lahore]

Before Kh. Imtiaz Ahmad, J

Rana KHADIM HUSSAIN and 8 others---Petitioners

Versus

FAQIR HUSSAIN and another---Respondents

C.R. No.272-D of 1999, decided on 16th March, 2011.

Oaths Act (X of 1873)---

----Ss. 8 to 12---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of oral sale agreement---Defendant's denial to have made such agreement and received earnest money from defendant---Offer of plaintiff to dismiss his suit, if any of three brothers of defendant take special oath on Holy Qur'an regarding non-receipt of earnest money by defendant---Acceptance of such offer by defendant---Failure of defendant to produce any of his brothers in court---Suit decreed by Trial Court upheld by Appellate Court---Validity---Had any of defendant's brothers appeared in court and made statement on oath, then defendant would have been bound thereby---Trial Court, in case of refusal of defendant's brother to take such oath, might record reasons therefor, but could not decree suit for such refusal---Defendant could not be penalized as none of defendant's brothers were ready to appear in court for taking such oath nor had they refused to take such oath---Such offer and acceptance by both parties was, thus, of no legal value and Trial Court was bound to decide case on merits---High Court set aside impugned judgments/decree and remanded case to Trial Court to decide same afresh on merits after recording evidence of both parties.

AIR 1916 Lah. 262; PLD 1960 SC 301 and PLD 1975 Lah 99 ref

Haji Jan Muhammad and another v. Sher Dil and another PLD 1975 Lah 97 rel

Ch. Habib Ullah Nahang for Petitioner

Malik Muhammad Fayyaz-ul-Haq Arain for Respondents

Date of hearing: 15th March, 2011.

2012 Y L R 77

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Anwaarul Haq, JJ

RASHID AHMED alias SHADDI---Petitioner

Versus

THE STATE---Respondent

C.M. No.1 of 2011 in Criminal Appeal No.478 of 2007, decided on 10th August, 2011.

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

----S. 426(1-A)---Penal Code (XLV of 1860), Ss.302(b) & 337-F(ii)/34---Qatl-e-amd---Suspension of sentence---Petition filed by accused for suspension of his sentence prior to the amendment made in S.426, Cr.P.C. had been dismissed by High Court---After amendment of S.426(1-A), Cr.P.C. accused had been given an independent right to validly apply for suspension of his sentence even after the dismissal of his previous application on merits---Accused was behind the bars for the last four years and four months---Appeal of accused was not likely to be fixed in the near future for the reason that his co-accused had been sentenced to death through the same judgment---Accused was not responsible for the delay in decision of his appeal in any manner whatsoever---Case of accused did not fall within the proviso of subsection (1-A) of S.426, Cr.P.C.---Sentence of accused was suspended in circumstances without touching the merits of his case till the final disposal of his appeal.

Liaqat and another v. The State 1995 SCMR 1819 ref

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

----S. 426(1-A)---Penal Code (XLV of 1860), Ss.302(b) & 337-F(iii)/34---Qatl-e-amd---Suspension of sentence---Second application for suspension of sentence---Suspension of sentence in view of the amended S.426(1-A), Cr.P.C. is an independent right of accused and same can validly apply for relief even after the dismissal of his petition on merits under S.426, Cr.P.C.

Liaqat and another v The State 1995 SCMR 1819 ref

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

----S. 426(1-A)---Suspension of sentence---Scope---Legislature has inserted the word "shall" in S.426(1A), Cr.P.C. purposely to make the same mandatory---In the case falling within the purview of sub-section (1-A) of S.426, Cr.P.C., suspension of sentence is a rule and its refusal an exception---Court, however can refuse the same if the case of accused falls within the proviso of subsection (1-A) of S.426, Cr.P.C.---Appellate Court while deciding such application is under obligation to ascertain that delay in decision of the appeal has not been occasioned by any act or omission of the accused or any person acting on his behalf.

Rana Muhammad Nawaz, for Petitioner

Muhammad Naeem Sheikh, Deputy Prosecutor-General for the State

Azam Nazeer Tarar, for the Complainant

2012 Y L R 85

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

MUHAMMAD NAEEM-UL-HAQ---Petitioner

versus

MUHAMMAD IQBAL and 3 others---Respondents

Criminal Miscellaneous Nos.10816-BC and 12467-BC of 2011, decided on 18th October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51---Possessing narcotic---Petition for cancellation of pre-arrest bail---Petitioner was earlier arrested in a case registered under S.9(c) of Control of Narcotic Substances Act, 1997 at the instance of S.H.O./complainant---Petitioner was found innocent in the investigation and report for his discharge was submitted and he was acquitted from the charge---Inquiry transpired that S.H.O. had falsely implicated the petitioner in said case in collusion with respondents---Respondents having been granted bail, petitioner had filed petition for cancellation of bail granted to the respondents---Sufficient material was available to connect the respondents with the commission of the offence, punishment of which fell within the prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997---Respondents, in circumstances, were required by the police for further investigation---Petitioner's innocence having been proved during the investigation and thereafter, his acquittal from the charge, prima facie had proved that the recovered 'charas' belonged to the respondents---No ill-will or element of mala fide on the part of the prosecution was found, accused/respondents were not entitled to the concession of pre-arrest bail, which was an extraordinary relief---Order granting pre-arrest bail to S.H.O., was also patently illegal as the Special Judge had ordered not to arrest him without permission of the court---If bail granting orders were not recalled, Investigating Agency was likely to be deprived of its right to investigate and collect further evidence against respondents---Impugned orders, in circumstances, having resulted in miscarriage of justice, order granting pre-arrest bail to respondents, were cancelled in circumstances.

Aftab Ahmad Bajwa for Petitioner

Muhammad Asim Mumtaz for Respondents Nos.1 and 2

Arshad Mehmood Sipra, Special Prosecutor, ANF along with Hayat Shah, S.I. and Sakhi Muhammad S.I., ANF.

2012 Y L R 88

[Lahore]

Before Ijaz Ahmad, J

MANZOOR HUSSAIN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.364-CB of 2010, decided on 27th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/ 148/ 149--- Qatl-e-amd--- Bail, cancellation of---Accused and his co-accused had allegedly clubbed the deceased resulting in injuries---Postmortem report had shown that a large fleshy area of the body of the deceased was subjected to continuous ruthless beating in a gruesome manner---Cause of death was cardio-pulmonary failure due to massive and severe beating and infliction of constant injuries, which had revealed the real intention of the accused to kill the deceased---Victim had been minced and grilled in a manner which had left no reason for allowing the accused to continue enjoying the concession of bail---Court was not bound by the ipse dixit of the police in declaring the accused innocent during investigation---Accused had already been summoned in the private complaint to face trial---Bail granted to accused by Sessions Court was cancelled in circumstances.

Muhammad Shoaib Khan Buzdar for Petitioner

Ch. Muhammad Akbar, D.P.-G along with Faiz, S.I. with record

Muhammad Ramzan Khalid Joiya for Respondent

2012 Y L R 97

[Lahore]

Before Ijaz Ahmad, J

GHULAM RASUL and 9 others---Petitioners

versus

SHER MUHAMMAD through Representative and 2 others---Respondents

C.R. No.591-D of 1988, decided on 26th April, 2011.

(a) West Pakistan Muslim Personal Law (Sheriat) Application Act (V of 1962)---

----S.2-A (as inserted by West Pakistan Muslim Personal (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983))---Punjab Muslim Personal Law (Shariat) Applicatoin Act (IX of 1948), Preamble---Opening of succession to agricultural land in accordance with Sharia in case of death of last Muslim male owner before promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948---Background of change brought through insertion of S.2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 stated.

Before the enactment of the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), inheritance under custom was being practised in the areas forming parts of India and Pakistan. Even pursuant to the said Act, the Islamic Law of Inheritance in case of agricultural land had not been fully applied. That necessitated the enactment of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Under section 2 of the said Act, Islamic Law was to apply on certain subjects mentioned in the said section. Under section 3 of the said Act, the limited estates under customs were terminated. However, certain estates saved by any enactment were to continue to be governed by that enactment. Insertion of section 2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 introduced a historic turn. It purported to apply Islamic Law of Inheritance in its entirety. On the termination of life estate, the inheritance was deemed to have opened on the death of last male owner in accordance with Sharia Law and the estate was deemed to have devolved on all legal heirs according to Islamic Law. A Muslim male heir was to be full owner as if he had not inherited the property under any custom with limitations on his power to transfer, but under Islamic Law with complete ownership and all the rights attached to the ownership.

Under the Punjab Muslim Personal Law (Shariat) Application Act, 1948, the limitations on the powers of even the male heir on alienation of the land inherited under custom continue. It could be challenged under the rules of custom on the ground of the sale being without necessity. Before the insertion of section 2-A into the West Pakistan Muslim Personal law (Shariat) Application Act, 1962, the agnates and the collateral even of a male owner could under the custom challenge alienation on the ground of sale being without necessity and become an absolute owner of the land as if he had inherited it under the Sharia.

Section 2-A of the Act is applicable retrospectively.

In case of last male owner, who died in year 1930, the agricultural land would devolve on all the legal heirs under Sharia. [p. 103] E

The property would devolve on all the legal heirs entitled to inheritance even in case of death of predecessor before the enactment of Punjab Muslim Personal Law (Shariat) Application Act, 1948.

Muhammad Ishaq v. Federation of Pakistan PLD 1981 FSC 278; The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad PLD 1983 SC 273; Mst. Ghulam Janat and others v. Ghulam Janat through L.Rs. and others 2003 SCMR 362; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Sajjad Munir v. Mst. Murad Khatoon and others 2002 CLC 733; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Suba and others v. Abdul Aziz and others 2008 SCMR 332; Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014 and Mst. Noor Fatima v. Shah Ji 2002 CLC 689 rel.

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

----Ss.96 & 115---Disposal of two suits by consolidated judgment/decree---Appeal or revision filed against one decree passed in such two suits---Maintainability---Appeal or revision would be competent and omission to attack second decree in appeal or revision could be rectified by placing on record its certified copy.

Siraj Din and 11 others v. Rajada 1992 SCMR 979 and Abdullah v. Faqirullah and others 1981 SCMR 585 rel

Malik Muhammad Ramzan Khalid for Petitioner

Islam Ali Qureshi for Respondent No.2

Ch. Abdul Ghani for legal heirs of Respondent No.1(i) to (x).

Date of hearing: 26th April, 2011.

2012 Y L R 117

[Lahore]

Before Sagheer Ahmad Qadri, J

NOOR AHMAD and another---Petitioners

versus

MUHAMMAD SHARIF---Respondent

C.R. No.85 of 2003, decided on 4th April, 2011.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption---Necessary facts---Proof---Mandatory for pre-emptor to prove performance of three Talbs i.e. Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat to exercise his right of possession through pre-emption in respect of sale---While giving details of performance of Talb-e-Muwathibat, date, time and place is to be given in plaint, until and unless such details are provided in plaint, no suit for pre-emption is maintainable.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haii Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst.Sahib Jamala and others PLD 2005 SC 977 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Non-mention of time and place of Talb-e-Muwathibat---Effect---Suit filed by pre-emptor was dismissed by Trial Court but Lower Appellate Court remanded the suit to Trial Court for framing additional issue relating performance of Talbs and then to decide the suit afresh---Validity---If the case was remanded to Trial Court for framing of specific issue regarding performance of Talbs, no useful purpose would be achieved as performance of Talb-e-Muwathibat was not proved in the plaint nor reflected from the evidence led by pre-emptor, therefore, suit had to be dismissed and Trial Court had rightly done so---High Court, in exercise of revisional jurisdiction set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Mst. Asia Bano v. Javed Akhtar Civil Petition No.1137 of 2008 rel.

Gul Nawaz v. Gul Bazar and another 1996 MLD 1406; M.C.B. v. Syed Ahmad Saeed Kirmani 1991 CLC 140; Budhoo v. Liaqat Hussain and 18 others 1986 CLC 2958; Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala 1968 SCMR 804; Muhammad Akbar and others v. Zohra Begum and others 1998 SCMR 724; Faqir Muhammad v. Mst.Aziz Bibi and another PLD 1978 Lah. 431; Fazal Mahmod and others v. Tajar Khan 1992 MLD 1439 and Azizur Rehman v. LDA 1985 CLC 2028 ref.

Mian Habib-ur-Rehman Ansari for Petitioners

Mian Ahmed Hassan for Respondent

Date of hearing: 24th March, 2011.

2012 Y L R 139

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mian IRFAN AKRAM---Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence, Islamabad and another---Respondents

Writ Petition No.3327 of 2003 and Writ Petition No.8433 of 2005, heard on 13th September, 2011.

Works of Defence Act (VII of 1903)---

----Preamble, Ss. 2(j), 3, 7 & 12---Constitution of Pakistan, Arts. 23 & 199---Constitutional petition---Private land situated within a radius of 1143 meters from parapet wall of Ammunition Depot---Restriction imposed by Authority on raising construction on such land by its owner (petitioner) without payment of any compensation---Plea of authority that such land had not been acquired, thus, they were not liable to pay compensation---Validity---Federal Government had powers under Works of Defence Act, 1903. to impose restrictions upon use and enjoyment of land in vicinity of works of defence, but subject to payment of compensation till withdrawal/removal of such restriction---Impugned restriction could not be termed as violation of fundamental rights of petitioner or any other citizen of Pakistan---Said restriction had practically debarred petitioner from utilizing suit-land for his residential purposes as he was bound to keep same open for purpose of works of defence till withdrawal of restrictions---According to Award by Land Acquisition Collector under S. 12 of Works of Defence Act, 1903, all land falling within radius of 1143 meters from parapet wall of Ammunition Depot was deemed to be within domain of award---Collector had finally announced such award for payment of annual rent compensation to owners of such land and same was still in force---Suit land being in small pieces and situated in an urban area could not be used for agricultural purpose---Authority had not denied paying compensation to petitioner upto 30-6-1994, whereafter they had refused to pay same on basis of such plea---Such act of Authority would show that such award had been implemented and would remain in force unless withdrawn or cancelled---Suit-land fell in radius of 1143 meters from parapet wall of Ammunition Depot, thus, petitioner was entitled to compensation and authority was bound to pay same till such restrictions remained in field---High Court accepted constitutional petition in circumstances.

Atif Mehmood for Petitioner

M. Naseem Kashmeri for Respondent

Date of hearing: 13th September, 2011.

2012 Y L R 156

[Lahore]

Before Ijaz Ahmad Chaudhry C.J. and Mazhar Iqbal Sidhu, J

MUHAMMAD AKRAM---Petitioner

versus

DISTRICT COORDINATION OFFICER NAROWAL and 4 others---Respondents

I.C.A. No.44 of 2011 in Writ Petition No.16986 of 2011, decided on 1st August, 2011.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Civil Procedure Code (V of 1908), S. 11---Intra-Court appeal---Maintainability---Res judicata, principle of---Applicability---Auction proceedings---Dismissal of first constitutional petition in limine and withdrawal of intra-court appeal filed thereagainst by appellant---Dismissal of second constitutional petition and filing of intra-court appeal there against---Maintainability---According to S.11, C.P.C., no subsequent proceedings on same issue would be entertained which had already been decided by a court of competent jurisdiction---Dismissal of earlier intra-court appeal as withdrawn would not pave way for appellant to wriggle out of bar of res judicata as envisaged in S. 11, C.P.C.---Second constitutional petition being barred by principle of res judicata, High Court dismissed second intra court appeal in circumstances.

Messrs M.K.B. Industries (Pvt.) Ltd. and others v. Chairman Area Electricity Board Peshawar and others 2005 SCMR 699 and Mrs. Mumtaz Maqsood v. Secretary, Revenue Division and another 2010 YLR 1869 rel.

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

----S. 11---Res judicata, principle of---Scope---No subsequent proceedings on same issue would be entertained which had already been decided by a court of competent jurisdiction.

(c) Auction---

----Competency of any person to participate in auction proceedings would be determined by competent authority.

Ch. Anwar ul Haq Pannu for Petitioner

2012 Y L R 174

[Lahore]

Before Ijaz Ahmad Chaudhary C.J. and Mazhar Iqbal Sidhu, J

MEHMOOD MEDICAL STORE through Proprietors---Appellant

versus

SERVICES HOSPITAL, LAHORE through Medical Superintendent

and 3 others---Respondents

I.C.A. No.450 of 2011, decided on 1st August, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy, availability of---Effect---Constitutional jurisdiction of High Court could not be invoked in all matters as a matter of right---Availability of alternate remedy was one of the limitations barring exercise of such jurisdiction by High Court---Illustration.

Sargodha Textile Mills Ltd. v. Habib Bank Ltd. and another 2007 SCMR 1240; Muhammad Mubarak Khan v The Settlement and Rehabilitation Commissioner Multan and Bahawalpur Division Multan 1980 CLC 1980 and The Muree Brewery Company Ltd. v. Pakistan through the Secretary to Govt. of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.

Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel

(b) Auction---

----Merely being the highest bidder would not create any right in favour of a person making such bid; rather same would be subject to execution of a formal agreement---Illustration.

Mian Peer Muhammad v. Hameer Saffar and others 2010 SCMR 1725 rel

(c) Constitution of Pakistan---

----Art.199---Constitutional petition by a person not party to suit---Maintainability---Words used in Art.199 of the Constitution were "aggrieved person" and not "party to proceedings"---High Court repelled such plea of respondent.

Hafiz Abdul Rehman Ansari for Petitioner

2012 Y L R 202

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mian MUHAMMAD MUZAFFAR---Petitioner

versus

MEMBER BOARD OF REVENUE/ CHIEF SETTLEMENT COMMISSIONER, PUNJAB and 6 others---Respondents

Writ Petitions Nos. 144-R of 2004 and 163-R and 35-R of 2005, decided on 29th June, 2011.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss. 2 & 3---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of evacuee property---House in dispute was placed in the Earmarking Scheme of Settlement and Rehabilitation Department and a female succeeded in earmarking---Said lady associated with her nephew by way of an Association Deed and surrendered all her rights in his favour and a P.T.D. for the same was issued in his favour---Later on, Settlement Department marked a portion of said house a separate number and made it available for auction, which action of the department was challenged by said transferee and finally Supreme Court accepted the claim of the transferee and disputed portion was restored in his favour---Executive District Officer (Revenue)/Notified Officer by way of impugned order recommended that the transfer of entire house be issued in favour of successors of transferee---Notified Officer passed impugned order after spot inspection and after hearing the parties---Notified Officer after examining the pros and cons of the case, jotted down the objection raised by the parties, had very comprehensively determined the question of the measurements of the excess area in question; and had rightly recommended the issuance of transfer order in favour of transferee of the house---In absence of any reason, the findings of fact recorded by the Notified Officer, could not be interfered with by High Court, in constitutional petition---Constitutional petition was dismissed.

1988 SCMR 1001 rel

Mian Zahid-ur-Rehman for Petitioner

Mehmood Ahmed Bhatti for Respondents

Date of hearing: 14th June, 2011

2012 Y L R 214

[Lahore]

Before Mehmood Maqbool Bajwa, J

SHAFIQUE ALI---Petitioner

versus

MUHAMMAD RAMZAN and 3 others---Respondents

Writ Petition No.9966 of 2011, heard on 26th September, 2011.

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

----O. VIII, Rr. 1, 9 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Failure of defendant to file written statement required to be filed as a right under O. VIII, R. 1, C.P.C., despite having availed three opportunities---Order of Trial Court striking off defence of defendant for such failure upheld by Revisional Court---Validity---According to proceedings of Trial Court, when defendant put his appearance for first time, then proceedings were adjourned for filing of written statement and reply, which he failed to do despite availing three opportunities for a period exceeding 30 days---Defendant got an opportunity to submit written statement as a right and was not "required" to submit same, thus, provision of O. VIII, R. 10, C.P.C., would not attract thereto despite expiry of period of 30 days as provided in first proviso thereto---Right of defendant to file written statement could not be closed in such circumstances---Defendant's conduct to have raised contradictory pleas in revision petition and constitutional petition regarding non-filing of written statement, even though contumacious, would itself be not sufficient to non-suit him in view of failure of courts below to appreciate such legal aspect of case---High Court set aside impugned orders and allowed defendant to file written statement subject to payment of Rs.5,000 as costs to plaintiff.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; Col.(Retd) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 and Shabbir Hussain and 2 others v. Sh. Abdul Jabbar PLD 2006 Lah. 18 rel.

Fazlur Rehman v. The State PLD 1981 SC AJ&K 10 distinguished.

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

----S. 114, O. VIII, R. 10, O. XLIII, R. 1 & O. XLVII, R. 1(1)(a)---Order of Trial Court closing right of defendant to submit written statement---Review petition by defendant for recalling such order---Dismissal of review petition by Trial Court for being non-maintainable as such order was appealable---Validity---Review could legally be made against an order or decree against which an appeal was provided, but was not filed---Suit was still pending as after passing such order, Trial Court had not announced judgment, but had adjourned proceedings for plaintiff's evidence---Such order was not appealable under O. XLIII, R. 1, C.P.C.

Secretary Agriculture, Government of The Punjab, Lahore and 4 others v. Messrs Muhammad Abbas and Sons 2006 CLC 1473 rel.

Muhammad Hanif Niazi for Petitioner

Mushtaq Ahmad Khalid for Respondent No.1

Date of hearing: 26th September, 2011.

2012 Y L R 269

[Lahore]

Before Ch. Shahid Saeed, J

TOWN COMMITTEE, DEPALPUR through Tehsil Nazim Depalpur, District Okara ---Appellant

versus

Mst. AMTUL HAMEED and 2 others---Respondents

Regular Second Appeal Case No.42 of 2006, heard on 4th July, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, Rr.2, 11, O.II, R.2 & S.11---Suit for recovery of amount as damages---Res judicata, principle of---Applicability---Earlier, the plaintiffs filed a suit for permanent injunction against the defendant with regard to the same property; in which they admitted that building material lying at site which should have not been removed by the functionaries of the Town Committee; and no relief for recovery of damages was claimed---Plaintiffs by filing present suit were under obligation to put the whole story of earlier suit for permanent injunction, as the said suit was rejected under O.VII, R.11, C.P.C., wherein the same facts were narrated in the plaint---Order passed by the Trial Court had attained finality as no further appeal was filed by the plaintiffs against said order---Evidence on record had shown that alleged loss claimed by the plaintiffs was exaggerated and they were not entitled to the amount as claimed in the earlier suit---Plaintiffs should have been debarred to claim exaggerated amount from the Town Committee as claimed in the present suit---Suit filed by the plaintiffs, was hit by principle of res judicata under S.11, C.P.C.---Trial Court while considering the averments of plaint was to see whether the suit was prima facie maintainable or not and for that matter the point of res judicata could also be gone into---No break-up/description as to how much damage was suffered by the plaintiff had been given by the plaintiffs which had given the impression that whole story was false, fabricated and concocted---Suit, in circumstances, was barred by O.II, R.2, C.P.C.---Concurrent findings of courts below on question of facts and law suffered from non-appraisal of evidence led in the suit by both the parties---Counsel for defendant succeeded to point out the illegalities and material irregularities committed by the courts below, while passing the impugned judgments and decrees, which called for interference by High Court---Impugned judgments/decrees, were set aside, in circumstances, and suit filed by the plaintiffs was dismissed

Ahmad Sharif Qazi and 6 others v. Salim Ullah Faridi and 9 others PLD 2006 SC 777 ref

1987 SCMR 527; 1987 CLC 2545 and 1990 CLC 1532 rel

Mian Muhammad Hanif for Appellant

Sardar Mohabbat Ali Dogar for Respondents

Date of hearing: 4th July, 2011.

2012 Y L R 277

[Lahore]

Before Kh. Imtiaz Ahmad, J

SHAMSHAD BIBI---Petitioner

versus

DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.2796 of 2008, decided on 5th April, 2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance and prompt dower in shape of gold ornaments entered in Nikahnama or its alternate value---Dismissal of suit for recovery of maintenance and passing of decree for recovery of prompt dower by Family Court---Dismissal of plaintiff's appeal by Appellate Court---Validity---Defendant had not challenged decree for recovery of dower---Filing of suit by plaintiff for recovery of prompt dower was itself a notice of its demand from defendant and date of its demand would be date of institution of such suit---Defendant had not paid prompt dower to plaintiff, thus, she had a right to refuse to live with him till its payment to her and he was bound to pay her maintenance from date of its demand till its payment---Value of gold ornaments was mentioned as Rs.30,000 in Nikahnama dated 25-8-2005---Alternate value of such gold would be fixed according to value prevalent at the time of institution of suit, which value would be determined by Executing Court---Plaintiff in plaint had claimed Rs.5,000 as monthly maintenance, while she in evidence had stated monthly income of defendant to be Rs.40,000/ 50,000---Defendant in his statement had not uttered a single word about his income---Defendant was working in Saudi Arabia, thus, Rs.1,000 per month would be sufficient for plaintiffs maintenance, which he was liable to pay from date of suit till payment of prompt dower to her---High Court modified judgments and decrees of both courts below accordingly.

Chanani Begum v. Muhammad Shafique and 2 others 1985 MLD 310 and Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 ref.

Chanani Begum v. Muhammad Shafique and 2 others 1985 MLD 310 Section 480 of the Muhammad Law by Sir Konald Knyvet and PLD 1971 Lahore 866 (DB) rel.

Ch. Muhammad Sharif for Petitioner.

Ijaz Ahmed Middu for Respondent.

2012 Y L R 291

[Lahore]

Before Muhammad Ameer Bhatti, J

KHUDA BAKHSH ANWAR and another---Petitioners

Versus

Mst. SHARIF BIBI and 2 others---Respondents

C.R. No.1030 of 2002, heard on 21st September, 2011.

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

----Ss. 12 & 22---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance of sale agreement---Execution of agreement denied by defendant, an old lady of 66/67 years---Proof---Stamp-vendor in his deposition did not state as to who had purchased stamp paper of agreement from him---Scribe of agreement in his deposition stated that he wrote agreement at direction of defendant without knowing her as she was clad in "Burqa"---Marginal witnesses had stated that defendant was an old lady of 66/67 years; that she was wearing "Burqa" and they were not known to her and that her son accompanied her at the time of such transaction---Validity---Testimonies of such witnesses did not inspire confidence as defendant was not known to any of them before such transaction---Plaintiff had not proved presence of defendant's son at time of transaction either by getting his signatures on any document or producing any cogent evidence---Court could refuse to decree such suit even if agreement had been proved as its specific performance was a discretionary relief---Plaintiff had failed to prove that defendant was not a pardah-observing lady and with her free consent and independent of her relatives had transferred land through agreement---Suit was dis-missed in circumstances.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Abdul Mannan and others v. Sikandar Khan and others 1992 CLC 505; Qamar-ud-Din and others v. Province of Sindh 2002 CLC 825; 1992 MLD 1758 and Province of Punjab v. Ch. Mehraj Din & Co. and others 2003 CLC 504 ref.

Abdul Aziz and others v. Abdul Rehman and others 1994 SCMR 111 rel.

(b) Pardahnashin lady---

----Illiterate and old pardahnashin lady---Execution of document by such lady, proof of---Standards stated.

The parameters in transaction, where the executant of transaction happens to be a lady specifically illiterate, old and pardah observing one, entail specific standards of substantiation. Not only the deed has to be read over to her, but it must be proved that it was substantially understood by the lady and it would be subject to her free will and intelligent act. Mere assertion that it was read over to the lady, does not fulfil the requirement, and the bona fides must also be proved that she has an independent advice.

PLD 2005 SC 658; Mst. Hafeeza Bibi v. Ali Hussain and others 1993 SCMR 1194 and Wing Commander (R) Abdul Majeeb v. Prime Minister of Pakistan 1998 SCMR 1345 rel

(c) Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Suit for specific performance of agreement---Scope---Relief of specific performance of agreement being discretionary could be refused even if agreement had been proved---Such discretion could be exercised on equitable terms.

Abdul Aziz and others v. Abdul Rehman and others 1994 SCMR 111 rel

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

----Art. 61---Disputed signatures of a party, comparison of---Powers of court---Scope---Court on its accord could compare such signatures and draw opinion.

Tasawar Hussain Qureshi for Petitioners

Messrs Munir Ahmed Khan Zai for Respondent No.1

Muhammad Kabir Khan and Asad Rashid for Respondents Nos. 2 and 3

Date of hearing: 21st September, 2011.

2012 Y L R 301

[Lahore]

Before Shahid Hameed Dar and Syed Iftikhar Hussain Shah, JJ

GHULAM SHABBIR alias SHABBU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.678 and Murder Reference No.381 of 2006, heard on 12th September, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Related witness---Credibility---Prosecution witnesses related inter se who had stood firm to the test of cross-examination and their statements were sufficiently corroborated by other material on record, could not be disbelieved---Intrinsic value of the statements of the prosecution witnesses is to be examined and nor their relationship.

Khadim Hussain v The State PLD 2010 SC 669; Muhammad Amin v The State 2000 SCMR 1784; Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1; Devi Parasad and others v The State AIR 1967 Allahabad 64 and Nazir and others v. The State PLD 1962 SC 269 rel

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence--- Substitution--- Scope---Substitution for the real culprit is a rare phenomenon, which may occur where the identity of accused is doubtful.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused, previously known to the prosecution witnesses, had been specifically nominated in the promptly lodged F.I.R.---Occurrence had taken place at night in the drawing room of the complainant in the light of an electric bulb, so there was no chance of substitution of the accused---Ocular evidence of both the prosecution witnesses was in line with medical evidence---Prosecution had established its case through trustworthy evidence---Conviction of accused was maintained accordingly---Accused had emotionally been disgraced and injured by the runaway marriage of the complainant with the girl, who wished to be divorced by her husband and might have a liking for accused---Accused was adolescent on the day of occurrence---Fire shot was not repeated by the accused---Rifle recovered at the instance of accused had been found defective by the Forensic Science Laboratory---Death sentence of accused was altered into imprisonment for life in circumstances.

Khadim Hussain v The State PLD 2010 SC 669; Muhammad Amin v The State 2000 SCMR 1784; Iqbal alias Bhala and 2 others v The State 1994 SCMR 1; Devi Parasal and others v The State 1967 Allahabad 64 and Nazir and others v The State PLD 1962 SC 269 ref

Ghulam Hussain Malik for Appellant

Khurram Khan, D.P.G. for the State.

Date of hearing: 12th September, 2011.

2012 Y L R 358

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD NAWAZ alias PALU ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.13498-B of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.397/412---Robbery or dacoity, with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Further inquiry---Delay of more than one month and 20 days in lodging F.I.R., had not been explained---Recovery of gun, pair of shoes and amount of Rs.5,000 would be appreciated by the Trial Court after recording evidence as presently no identification memo of said articles was on the file---Case of accused therefore, called for further inquiry---Almost more than one year and three months had passed, but the trial had not been concluded---Such delay had not occasioned by any act or omission on the part of accused or any other person acting on his behalf---Accused who had no previous criminal record was admitted to bail, in circumstances.

Malik Rab Nawaz for Petitioner.

Ch. Karamat Ali, DPP for the State along with Muhammad Imran, A.S.-I.

2012 Y L R 365

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ANWAR SHAH and 6 others---Petitioners

Versus

Mst. FATIMA BIBI and others---Respondents

C.R. No.295-D of 1988, heard on 31st March, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Fraud---Proof---Co-sharer, possession of---Plaintiffs claimed to be the owners of 1/3rd land belonging to their predecessor-in-interest and also claimed that the sale deeds and mutations regarding land in question were result of fraud---Defendants admitted plaintiffs as legal heirs of deceased but asserted that they were not in possession of any piece of land---Trial Court as well as Lower Appellate Court dismissed the suit and appeal respectively---Validity---Plaintiffs were the legal heirs of deceased owner of land in question, while one of the defendants was the daughter of deceased owner and other defendant was brother-in-law of the deceased, who claimed himself to be the general attorney of the deceased---Deceased was owner of immovable properties in three districts of Punjab, who was incapacitated person, he was a man of advance age, patient of paralysis, unable to walk and two years before his death he was suffering from "Marz-ul-Mout" who never executed any sale-deed nor appointed his brother-in-law as his attorney and all alleged sales and power of attorney in favour of defendant were outcome of fraud---After the admission by defendants about status of plaintiffs, being legal heirs of deceased owner, the plaintiffs had become owners of their respective shares and they were deemed to be the co-shares in the property---Suit for declaration was maintainable, as such findings of two courts below to such extent were against law---Plaintiffs had successfully proved their case and daughter of deceased was entitled to her respective share according to law even if sale deed in her favour was declared illegal---Judgments and decrees passed by both the courts below were set aside and suit was decreed in favour of plaintiffs---All legal heirs of deceased would become owners of the estate according to Islamic law of inheritance---Revision was allowed accordingly.

Muhammad Hussain Jahania for Petitioners.

Syed Muhammad Ali Gillani for Respondents

Date of hearing: 31st March, 2011.

2012 Y L R 381

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD FAROOQ alias PANNA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.9099-B and 10064 of 2011, decided on No.23rd September, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 148/ 149/ 109--- Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail, refusal of---Accused joined by his co-accused had committed a gruesome offence being armed with deadly weapons and gunned down seven persons at the festivity ceremony of "Rasm-e-Hina" of brother of the complainant---Indiscriminate firing by accused did not make any distinction between their foes and strangers and even killed an electrician at the spot, who was busy in installating decoration lights on the house and had nothing to do with the rivalry between the parties---Some other persons present in the street had also received firearm injuries as a result of said firing by the accused---Accused was a hardened and desperate criminal who along with the co-accused had turned a joyous festival into a wailing scenario within no time---Complainant had also been murdered when co-accused had absconded---Case of accused was hit by the exceptional clause of the fifth proviso to S.497, Cr.P.C.---Bail was declined to accused, in circumstances.

Mashkoor v. The State 2009 PCr.LJ 110 and Wajid Ali v. The State 2009 PCr.LJ 275 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/ 324/ 148/ 149/ 109---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail, grant of---Accused along with his co-accused had allegedly hatched up a conspiracy and abetted their co-accused to commit the main occurrence---Time, date and place of conspiracy and the names of the witnesses of conspiracy were not mentioned in the F.I.R.---Two witnesses had been produced by the complainant before the Investigating Officer one month after the occurrence in support of abetment against the accused, but none of them had explained the reason for the silence for such a long period---Value of statements of the said witnesses would be assessed at the trial---Case against accused required further inquiry within the meaning of S. 497, Cr.P.C.---Accused was admitted to bail in circumstances.

Tayyab Ramzan for Petitioner (in Criminal Miscellaneous No.9099-B of 2011).

Asghar Ali Gill for Petitioner (in Criminal Miscellaneous No.10064-B of 2011).

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

Muhammad Afzal Siddiqui for the Complainant.

Muhammad Irshad S.I. with record.

2012 Y L R 392

[Lahore]

Before Mansoor Akbar Kokab and Ch. Muhammad Tariq, JJ

Mst. KABIRI BIBI and others---Petitioners

Versus

SECRETARY (S&R), BOARD OF REVENUE and others---Respondents

I.C.A. No.189 of 2006 in Writ Petition No.47/R of 2004, and I.C.A. No.190 of 2006 decided on 11th October, 2011.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Appellants' constitutional petition for allotment of disputed land was allowed by High Court in the year 1996---Respondents also filed constitutional petition in the year 2004 on the ground that the case of the appellants did not fall within the definition of "pending cases' and the said constitutional petition was heard alongwith another constitutional petition filed by appellants against non-adjustment of their entitlement---High Court allowed constitutional petition filed by respondents and dismissed the one filed by the appellants---Validity---Matter was initiated in the year 1978 when predecessor-in-interest of the appellants filed constitutional petition after 4 years of the repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Case of predecessor-in-interest of the appellants, therefore, did not fall within the definition of 'pending cases'---Only such matters which were either actively pending consideration before authorities for final disposal or had been remanded by the High Court or Supreme Court, were to be finalized by the Notified Officer---Settlement or Rehabilitation Authorities, by express positive assertion, had no jurisdiction to entertain any fresh petition or representation---Judgment passed by High Court in constitutional petition in the year 1996 was an order void ab initio having no backing of law and was not binding on the parties---Intra-court appeal was dismissed.

PLD 1991 SC 691; PLD 1999 SC 699; PLD 2002 SC 5; Nawabzada Zafar Ali Khan others v. Chief Settlement Commissioner/Member Board of Revenue 1999 SCMR 1719; 2004 SCMR 270 and 2005 SCMR 1380 ref.

Inayat Bibi's case PLD 1974 Lah. 252; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member Board of Revenue, Punjab Lahore 1999 SCMR 1719; Evacuee Trust Property Board v. Mst. Sakina and others 2007 SCMR 262; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 and Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing), Punjab, Lahore v. Akhtar Munir and 6 others PLD 2003 SC 603 rel.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---"Pending cases"---Definition---Where question of entitlement concerning agricultural property was neither remanded by Supreme Court nor any such directions were made by the High Court whereby Notified Officer, on its strength, could commence proceedings, any petition or representation filed with regard to matter which otherwise stood finalized long back or even where aggrieved person might believe to have legitimate claim, could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/ Member Board of Revenue, Punjab Lahore 1999 SCMR 1719 and Evacuee Trust Property Board v. Mst. Sakina and others 2007 SCMR 262 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, even in an appropriate case, could only remand the case to the relevant authorities for consideration of the right and interest of a person according to law in order to meet the ends of justice and not to determine the right and entitlement of a person itself.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disposal of constitutional petition based on illegal and tainted concession and direction for its implementation was a coram non judice and as such had no binding effect.

Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 and Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing), Punjab, Lahore v. Akhtar Munir and 6 others PLD 2003 SC 603 rel.

Shahzad Shaukat for Appellants

Syed Aal-e-Ahmad for Respondents

Date of hearing: 6th October, 2010.

2012 Y L R 403

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD AFZAL NASIR and others---Petitioners

Versus

CHIEF SETTLEMENT COMMISSIONER/MBR J-V and others---Respondent

Writ Petition No.92-R and C.M. No.3 of 2010, decided on 23rd December, 2010.

(a) Displaced Persons (Land Settle-ment) Act (XLVII of 1958)---

----Ss. 10 & 11---Transfer of Property Act (IV of 1882), S. 41---Constitution of Pakistan, Art. 199---Constitutional petition--- Fraudulent transaction---Allotment, cancellation of---Ostensible owner---Protection---Land in question was evacuee land and its allotment was cancelled on the basis of Mukhbari application and was allotted in favour of vendor from whom petitioners purchased the land---Grievance of petitioners was that subsequently authorities could not have cancelled the allotment---Validity---It was established that all previous transactions were based on fraud and forgery---No party could be allowed to take advantage of his fraud---There could be no rationale or basis for discrimination between powers endowed to High Court, to a Court of general jurisdiction or to a tribunal of special or limited jurisdiction to probe into the matters of fraud---Whatsoever the case might be, the effect of fraud would be the same and duty to undo that effect was on the authority in whose jurisdiction the fraud was practised---Allotment in favour of vendor not being based on Mukhbari was found to be fraudulent and was liable to be cancelled---Petitioners who were ostensible owners claiming protection of section 41 of Transfer of Property Act, 1882, for having purchased land from allottee was not warranted under the law when title of vendor was based on fraud and in such like matters vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to vendor because transferee was to simply step into the shoes of transferor so a defective title could not become a perfect title simply because it was further transferred---When Settlement authorities found that land in question had been obtained fraudulently on Mukhbari application under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958, they cancelled allotment of the land---Claim of petitioners that they were bona fide purchasers of land in question was not acceptable---Judgment passed by Settlement authorities was based on cogent reasons---Petitioners failed to point out any illegality or infirmity in the judgment passed by Settlement authorities, therefore, High Court declined to interfere in the same---Petition was dismissed in circumstances.

Farhat Ullah Khan and others v. Additional Commissioner Revenue and others 2002 SCMR 1507 and 1984 SCMR 1027 ref.

(b) Transfer of Property Act (IV of 1882)---

----S.41---Transfer by ostensible owner---Necessary ingredients for protection under section 41 of Transfer of Property Act, 1882 are that transferor is an ostensible owner; that he is so by the consent, express or implied, of the real owner; that transfer is for consideration; and that transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

(c) Fraud---

----Order obtained by fraud---Duty of Court---Court or a tribunal of special or limited jurisdiction has powers of suo motu recall or review of order obtained from it by fraud---Fraud vitiates the most solemn proceedings and no party should be allowed to take benefit of his fraud.

Ch. Iqbal Ahmed Khan for Petitioners.

Mahmood A. Sheikh, Legal Adviser for CSC for Respondents.

Ch. Ishtiaq Ahmad for Respondent No.4.

Ghulam Farid Sanotra for Applicant (in C.M. No.3 of 2010).

Rana Shamshad Khan, Assistant Advocate-General Punjab.

Munawar Baig, A.S.-I., Police Station Khudian.

Date of hearing: 23rd December, 2010.

2012 Y L R 414

[Lahore]

Before Abdul Waheed Khan, J

Rana MUHAMMAD AFZAL---Petitioner

Versus

TEHSEEN ULLAH KHAN and others---Respondents

Writ Petition No.15603 of 2011, decided on 29th September, 2011.

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

----Arts.78 & 59---Specific Relief Act (I of 1877), S. 12---Suit for specific per-formance of agreement---Denial of signatures/thumb-impression on agreement by defendant---Expert opinion---Scope---Proper course for the court should have been to refer the matter to handwriting expert---Human experience had shown that there were cases where the court did not always found itself to be in conceptive position to form judicial opinion, without the help of persons who had acquired special skill, knowledge or experience in that particular field---Rule was to be relaxed in such cases and the expert evidence had been declared to be a relevant fact---Article 59 of Qanun-e-Shahadat, 1984, was an exception to the rule as regard the exclusion of opinion of expert evidence was concerned---Opinion of expert was admissible in evidence as relevant fact, negative or positive by virtue of Art.59 of Qanun-e-Shahadat, 1984---Rule admitting expert evidence could be said to be founded on the doctrine of necessity from which the courts of law often find assistance---Request of plaintiff for getting the assistance of handwriting expert was justified which should have been allowed by the Trial Court.

Pervaiz Akhtar Chaudhry for Petitioner.

Mian Zafar Iqbal Mehar for Respondents Nos.1, 3 and 5.

Maqsood Yasin Nizamani for Respondent No.2.

2012 Y L R 425

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.8924-B of 2011, decided on 24th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Abducting woman to compel for marriage---Bail, grant of---Accused was father of co-accused and he could not be expected to encourage or accompany his sons to commit an offence of moral turpitude or of abducting a woman---Accused was 80 years old---Factum of marriage between the co-accused and the alleged abductee was still to be probed into by Investigating Officer, who despite having received a copy of Nikahnama appeared to be reluctant to investigate the case from this angle---Co-accused had not been arrested so far---All able bodied male members of the family of the accused had been involved in the case---False implication of accused being father of co-accused and due to the malice or ulterior motives of the complainant, could not be ruled out---To keep the accused further incarcerated would be of no consequence to the prosecution case---Bail was allowed to accused in circumstances.

Ms. Khalida Parveen for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General for the State with Mehmood A.S.-I

Ch. Abdul Rasheed, for the Complainant

2012 Y L R 428

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD AKRAM---Petitioner

Versus

MUHAMMAD ASLAM---Respondent

Civil Revision No.1859 of 2004, decided on 7th July, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction---Rejection of plaint---Mother of the parties gifted away her property through registered gift-deed to one of her sons and daughters---Plaintiff, another son of the donor, filed suit for declaration and permanent injunction challenging said gifts---Defendants filed an application under O.VII, R.11, C.P.C. on the ground that doner/mother of the parties being alive, suit filed by the plaintiff was not maintainable during her life time---Trial Court accepted said application, but Appellate Court through impugned order set aside order of the Trial Court and remanded the case to the Trial Court with the direction to decide the case afresh after framing of issues and recording of evidence of the parties---Validity---Plaintiff had no right/locus standi in the estate of his mother/donor, at the time of filing of the suit during her life on the ground of undue influence and could not challenge gift deeds made by his mother in favour of the defendants---Trial Court had rightly rejected the plaint through a well reasoned order, which had illegally been set at naught by the Appellate Court through impugned judgment---Appellate Court, was not justified in remanding the case to the Trial Court.

Muhammad Arshad and another v. Ltd. Col. S. Mazhar Hussain Shah and another 1979 CLC 699 rel.

Mian Manzoor Hussain for Petitioner.

Rana Muhammad Dastgeer for Respondents.

2012 Y L R 436

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD LIAQAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.13020/B and 13160/B of 2011, decided on 23rd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Robbery---Bail, grant of---Further inquiry---Report of Finger Prints Bureau clearly revealed that the fingers and palm prints of accused did not match with the prints of fingers and palms of culprits, which were lifted/secured after the occurrence---Reasonable doubt, in circumstances, had arisen regarding involvement of accused in the commission of the alleged offence---Modern techniques usually lead to a correct conclusion and those should be resorted to as far as possible in the investigation of criminal cases---No identification parade was held in the case---Identification of the ornaments in the Police Station, could not be given any weight---Case against accused clearly needed further probe and inquiry---Accused were admitted to bail, in circumstances.

M. Irshad Chaudhry for Petitioner.

Aamir Wakeel Butt for Petitioner (in Criminal Miscellaneous No. 13020-B of 2011).

Mian Humayun Aslam, D.P.-G., for the State, along with Gulzar, A.S.-I., with record.

Muhammad Aamir Latif Sehr Bhutta for the Complainant.

2012 Y L R 447

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SALEEM---Petitioner

Versus

SADAM ALI and others---Respondents

Civil Revision Nos.356-D and 357 of 1995/BWP, heard on 22nd June, 2011

Civil Procedure Code (V of 1908)---

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact of courts below---Interference in such findings by High Court.

In revisional jurisdiction of High Court, the concurrent findings of fact recorded by both the courts below cannot be interfered with till the time the petitioner proves that these findings are factually incorrect or the result of misreading or non-reading of any material evidence or the result of misinterpretation of any documentary evidence.

Aejaz Ahmed Ansari for Petitioner.

Raja Muhammad Sohail Iftikhar for Respondent.

Date of hearing: 22nd June, 2011.

2012 Y L R 451

[Lahore]

Before Altaf Ibrahim Qureshi, J

TANVIR ISHAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5496-B of 2011 decided on 16th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery and using as genuine a forged document---Bail, grant of---Further inquiry---Unexplained inordinate delay of two years in lodging the F.I.R.---On the basis of impugned agreement, a civil suit was filed by accused after about one year and three months from its execution---Such suit was pending before civil court and complainant was appearing in the suit---F.I.R. was lodged after institution of the civil suit and prima facie matter had been converted into criminal litigation---Case against accused, in circumstances, was that of further inquiry under S.497(2), Cr.P.C.---Offences under Ss.420/471, P.P.C. were bailable---Offence under S.468, P.P.C. though was non-bailable, but the punishment provided for that offence was seven years, which did not fall within the ambit of prohibitory clause of S.497(1), Cr.P.C.---Accused was behind the bars since 4-3-2011 and was no more required by Police for further investigation---Incarceration of accused would not serve any useful purpose, in circumstances---Accused was admitted to bail.

Sardar Muhammad Khalil for Petitioner.

Ch. Karamat Ali, learned Deputy Prosecutor-General.

Raja Sameer Sultan, S.I.

2012 Y L R 460

[Lahore]

Before Syed Ejaz Hussain Shah, J

MUHAMMAD HUSSAIN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, D.G. Khan and 4 others---Respondents

Writ Petition No.7214 of 2011, decided on 13th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan, Art.199--- Constitutional petition---Registration of criminal case---Petitioner approached the Police for registration of criminal case against the respondent, but Police having not registered case, petitioner filed application before Justice of Peace under S.22-A, Cr.P.C. for issuance of direction to S.H.O. concerned to register the case---Said application was dismissed by Justice of Peace---Validity---Justice of Peace, after considering the report of S.H.O., dismissed application observing that the petitioner might file a private complaint---Impugned order had been passed by Justice of Peace with full application of judicious mind after getting the report/comments of the Local Police and same was a speaking order, which did not call for any interference by High Court---Order of Justice of Peace was upheld.

Muhammad Bashir v. S.H.O. and others PLD 2007 SC 539; Muhammad Mushtaq v. Additional Sessions Judge, Lahore and others 2008 YLR 2301 and Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 ref.

Sardar Zafar Ahmad Lound for Petitioner.

2012 Y L R 472

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD BABAR KHAN GHUMMAN---Petitioner

Versus

STATION HOUSE OFFICER and 4 others---Respondents

Writ Petition No.16617/Q of 2011, decided on 18th July, 2011.

Penal Code (XLV of 1860)---

----Ss. 420/406---Constitution of Pakistan, Art.199--- Constitutional petition---Criminal breach of trust, cheating---Quashing of F.I.R.---Petitioner had sought quashing of F.I.R. on the ground that registration of F.I.R. was result of mala fide on the part of the complainant as well as the Police and that petitioner had committed no offence---Truthfulness or falsehood of allegations contained in the F.I.R., could only be ascertained during the course of investigation or after the filing of report under S.173, Cr.P.C. to a court of competent jurisdiction---Practice of quashing the F.I.R., by High Court, in exercise of constitutional jurisdiction, was not approved---Remedies available to accused were to appear before the Investigating Officer to prove his innocence and to approach the competent higher authorities of the Investigating Officer having powers vide S.551 of Cr.P.C.---After completion of the investigation, the Investigating Officer had to submit case to the concerned Magistrate; and the Magistrate had power to discharge accused under S.63 of Cr.P.C. in case of their innocence---In case Magistrate would find the accused innocent, he would refuse to take cognizance of the matter---Rule 24.7 of Police Rules, 1934 had made a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate---Remedies for accused who claimed to be innocent were available who could seek relief without going through the entire length of investigations.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel

Asif Mahmood Ghumman for Petitioner.

2012 Y L R 517

[Lahore]

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.124 and Murder Reference No.306 of 2007, heard on 16th May, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Broad-daylight occurrence, which was promptly reported to the Police---Complainant was real brother of accused and son of the deceased---No reason was available for complainant to involve accused in the false case and give false evidence against him---Other prosecution witness had also fully supported the prosecution version regarding making of fire by accused with .12 bore gun and causing qatl-e-amd of the deceased---Said witness was resident of the same village and equally related to both the complainant and accused---No reason existed for witness to depose falsely---Both prosecution witnesses inspired confidence---Medical evidence had lent necessary corroboration to the ocular account---Prosecution witnesses had proved that accused had made disclosure and led to recovery of .12 bore gun which was secured through memo---Forensic Science Laboratory had shown that the empty recovered was fired from the gun got recovered by accused which also lent necessary corroboration to ocular evidence---Accused in his statement under S.342, Cr.P.C. had admitted that he had caused qatl-e-amd of the deceased; he had also admitted the prosecution version regarding occurrence and motive---Incident was a cold-blooded murder, the sentence awarded to accused, in circumstances, did not appear to be harsh and excessive, but in absence of any mitigating circumstance, it was a normal sentence for commission of qatl-e-amd---Impugned judgment did not suffer from any illegality or infirmity---Appeal was dismissed.

Iftikhar-ul-Hassan v. Israr Bashir The State 2007 Cr.LJ 470 and Jehanzeb and another v. The State and others 2003 SCMR 98 ref.

Muhammad Asif Karim for Appellant.

Rana Abdul Majeed Additional Prosecutor-General for Appellant.

Date of hearing: 16th May, 2011.

2012 Y L R 532

[Lahore]

Before Ch. Iftikhar Hussain, J

TARIQ alias BOGI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1225-B of 2011, decided on 9th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/427/148/149---Attempt to commit qatl-e-amd mischief causing damage to the amount of fifty rupees---Bail, grant of---Further inquiry---No specific role had been assigned to the accused persons nominated in the F.I.R. including the accused petitioner and all of them were attributed a general role in the F.I.R.---All other accused persons had already been released on bail and case of accused was not dissimilar to their case---Rule of consistency was applicable to the accused---Evidentiary value of the belated statement of the injured witness recorded after seven days of the incident in which role of firing was assigned to the accused, would be determined at the trial along with his vicarious liability in the occurrence---Two persons from the side of accused party having been injured, their cross version was also pending and the nature of aggression implied by each party, was yet to be gone into---Case of accused, thus, fell within the ambit of S.497(2), Cr.P.C. calling for further inquiry---Accused was in jail for the last five and a half months and his trial had not yet commenced---Bail was allowed to accused in circumstances.

Zulifqar Ahmad Bhatti for Petitioner.

Khurram Khan, D.P.G. on behalf of Respondent No.1./State.

Ashfaq Ahmad for the Complainant/Respondent No.2.

Muhammad Boota, S.I. with police record.

2012 Y L R 541

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD NAVEED BASHIR and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.10728-B of 2011, decided on 30th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 148/ 149/ 109--- Qatl-e-amd, attempt to commit qatl-e-amd, rioting, abetment---Bail, grant of---Ground of delay---Accused were continuously behind the bars for more than three years and the trial had not yet concluded---Accused were not involved in any act of terrorism, nor they were hardened or desperate criminals---No remarkable circumstance was available on record to disentitle them to relief of bail---Accused were granted bail in circumstances.

Muhammad Naeem Saleem for Petitioners.

Noor Ahmad Bhatti, D.P.P. for the State with Javed Iqbal, S.-I. with record.

Muhammad Afzal Siddiqui for the Complainant.

2012 Y L R 545

[Lahore]

Before Sardar Muhammad Shamim Khan, J

BASHIR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.603-B of 2011, decided on 16th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail grant of---Complainant had not properly explained the delay of four hours in lodging the F.I.R.---Motive was not attributed to accused---Accused had not fired at the deceased and he per F.I.R. had caused fire-arm injuries on the left shoulder and back of the complainant, which would be deemed to be simple in nature---Mother of the deceased and an injured co-accused had also filed private complaints under S.302/34, P.P.C. against the complainant and the injured eye-witnesses, so the case was of three versions---Trial Court was yet to determine after recording evidence as to which party had aggressed---Complainant had suppressed the injuries sustained by the aforesaid injured co-accused in the occurrence, in the F.I.R.---Accused had been declared innocent by the police in investigation---Bail was allowed to accused in circumstances.

Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Muhammad Sadiq and 4 others v. The State 2001 PCr.LJ 962 and Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 ref.

Rai Bashir Ahmad for Petitioner.

Ch. Muhammad Saleem Akhtar for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.-G.

Allah Yar, Sub-Inspector with record.

2012 Y L R 550

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD ASIF and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.5002/B of 2010 and 596-B of 2011, decided on 14th March, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Accused while armed with a pistol had, per F.I.R., caused an injury with its butt on the lip of the prosecution witness---Said injury had been declared by the Doctor as "Shajah Khafifa", which fell within the ambit of bailable offence---Accused had not inflicted any injury on the person of any of the deceased---Pistol was not recovered from the possession of accused--During investigation, accused had been declared innocent by the Police---Accused was admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Accused had allegedly fired with his rifle on the calf of right leg of the deceased from its front side---Said injury had been falsified by the post-mortem examination of the deceased---Rifle was not recovered from the possession of accused during investigation---One person from the accused side had also lost his life during the occurrence---Complainant had also filed a private complaint regarding the incident increasing the number of accused persons---Bail was allowed to accused in circumstances.

Mumtaz v. State 2002 YLR 3045; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Walayat and another v. The State 1984 SCMR 530 ref.

Rana Muhammad Asif Saeed and James Joseph for Petitioners.

Tahir Mahmood for the Complainant.

Hassan Mahmood Khan Tareen, D.P.-G. for the State.

Mehmood Ahmad, A.S.-I. with record.

2012 Y L R 555

[Lahore]

Before Sagheer Ahmad Qadri, J

GHULAM MURTAZA alias TAJ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.864-B of 2011, decided on 13th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Co-accused had been allowed bail and case of accused was almost at par with his co-accused---Vicarious liability of accused and sharing the common intention with his co-accused only could be seen at trial after recording the evidence---Case of accused, in circumstances, required further probe falling under S.497(2), Cr.P.C. entitling him for same concession of bail as extended in favour of co-accused---Accused was admitted to bail, in circumstances.

Ghulam Oasim v. The State and another 2008 PCr.LJ 1371; Muhammad v. The State 1998 SCMR 454; Shafi Muhammad v. The State 1999 PCr.LJ 890; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Tasawer and another v. The State 2006 PCr.LJ 629; Faraz Akram v. The State 1999 SCMR 1360; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Mubarik Shah v. The State 1986 SCMR 1681 and Naseer Ahmed v. The State PLD 1997 SC 347 ref.

Aamir Shafique Qureshi for Petitioner.

Raja Zahoor Ahmad for the Complainant.

Kh. Sohail Iqbal, D.P.-G. for the State.

Azhar, S.I. along with record.

2012 Y L R 561

[Lahore]

Before Shahid Hameed Dar, J

UMER SHARIF---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.8324-B of 2011, decided on 23rd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/201/34---Qatl-e-amd, abetment, causing disappearance of evidence---Bail, grant of---Accused's father, who was co-accused and also complainant in the case, had already been granted bail by High Court---Case of accused was on better footing than that of his co-accused father---Father of accused, no doubt, had burdened the accused with the murder of his mother in the F.I.R., but the circumstances mentioned in the F.I.R. had undergone a massive change---Outcome of the investigation and filing of the private complaints by two real brothers of the deceased regarding the same occurrence had not corroborated the allegation that the accused had throttled his mother to death---Bail could not be withheld as a matter of punishment---Equity of treatment had to be maintained amongst the accused placed in identical and similar circumstances---Sufficient reasons existed to believe that case of accused needed further inquiry as envisaged under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Asif Ayub v. The State 2010 SCMR 1735 ref.

Syed Hassam Qadir Shah for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State with Iqbal S.I.

Ghulam Farid Sanootra for the Complainant.

2012 Y L R 571

[Lahore]

Before Abdus Sattar Asghar, J

KHALID MEHMOOD---Petitioner

Versus

MUHAMMAD RAMZAN and another---Respondents

Writ Petition No.1978 of 2009/BWP, decided on 14th September, 2011.

West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Lambardar, appointment of---Candidate being a Teacher in Government School holding two Master Degrees as well as son of deceased Lambardar---Effect---Mere academic qualification would not be a ground to claim extra suitability for appointment as Lambardar---Person to be appointed as Lambardar should be normally available in village to perform his day to day functions and duties---Person doing some other job or being a Government servant being an absentee would not be able to perform dual duties at a time as a school teacher and Lambardar efficiently and adequately---Revenue authorities on basis of their experience would always be in a better position to make suitable choice for appointment of Lambardar on merits out of various candidates---Such candidate was not found to be suitable for appointment as Lambardar---Constitutional petition was dismissed.

Mehr Ali v. Noor Muhammad and others 2007 SCMR 1965 and Muhammad Yousaf v. Member Board of Revenue and 4 others 1996 SCMR 1581 rel.

Manzoor Khan V. The Member (Consolidation) Board of Revenue Punjab,Lahore and others 1989 MLD 1406 distinguished.

Sh. Karim ud Din for Petitioner.

Ijaz Ahmed Ansari for Respondent No.1.

2012 Y L R 586

[Lahore]

Before Ch. Shahid Saeed, J

Mst. RUKHSANA BEGUM and another---Petitioners

Versus

SURRIYA BEGUM and others---Respondents

Civil Revision No.793 of 1999, heard on 30th September, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Gift mutation---Plaintiffs filed suit for declaration challenging therein the validity and legality of mutation of gift in favour of their brother, which was fraudulently sanctioned---Plaintiffs had prayed that impugned mutation be declared unlawful, invalid and inoperative upon their rights---Trial Court dismissed suit, but on filing appeal by the plaintiffs, Appellate Court below set aside judgment and decree passed by the Trial Court---Validity---Patwari, who was produced by the defendant in proof of his claim, had deposed that entry in question was made by him under duress or coercion of defendant for which rapat was also sent to higher authorities---Mutation in question and Roznamcha Waqiati, had shown that entry was not made, but was adjusted in the space wilfully left blank earlier---Patwari had further deposed that signatures/thumb impressions, were never made on said documents in his presence---Material contradictions were also noticed in the statements made by the witnesses produced by the defendant---Plaintiff ladies, who according to the assertion of defendant, had gifted away their land to defendant, who was their brother, had their own children and spouses---Defendants had failed to adduce any cogent evidence to show as to why, they in presence of their own children and spouses, had preferred their brother or nephew---Defendants had neither rendered any special service to plaintiffs/donors, nor had such relations that the donors could prefer defendants/donees over their own children and spouses---Defendants being already in possession of the land as co-sharer, no actual possession in result of the disputed gift mutation was delivered to them---When the plaintiffs had alleged fraud against the defendants, onus to prove the same shifted on defendants as they were the beneficiaries of the disputed mutation---Defendants had miserably failed to prove that mutation in dispute was validly and lawfully sanctioned---Mutation in question was proved to be fraudulently got sanctioned by the defendant in connivance with Revenue Officials in order to deprive the plaintiffs from their lawful right/share---Mutation in question, was declared invalid, illegal and inoperative upon the rights of the plaintiffs---Judgment and decree passed by Appellate Court, being in accordance with law and facts, was maintained, in circum-stances.

Rana Muhammad Ramzan v. Malik Saeed Hussain and another 2001 YLR 2567 ref.

Kh. Saeed-uz-Zafar for Petitioners.

Muhammad Hanif Niazi for Respondents.

Date of hearing: 30th September, 2011.

2012 Y L R 596

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SHAUKAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.516/B-2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420/468/471/506---Cheating, forgery for purpose of cheating, using as genuine a forged document and criminal intimidation---Pre-arrest bail, grant of---No date and time of the occurrence had been mentioned in the F.I.R.---None of the offences charged against the accused were, prima facie, attracted to the facts of the case to the extent of accused---Documents in the case pertained to the year 1979---Prosecution had lodged the case after 32 years, which itself was sufficient to grant the relief prayed for---Documentary evidence being in the exclusive possession of the investigating agency, accused if released on bail was not likely to tamper with the same---Not only the accused but his deceased forefathers had also been roped in the case and the complainant had astonishingly kept mum during their life time---Material available on record had manifestly suggested that registration of the case might be the outcome of mala fides---Liberty was the most precious right of every citizen as guaranteed by the Constitution, which could not be curtailed on bald allegations---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170 ref.

Malik Tahir Mehmood for Petitioner.

Ch. Muhammad Waheed Khan, Deputy Prosecutor General Punjab.

Muhammad Ilyas Siddiqui for the Complainant.

Malik Amjad Ali, Sub-Inspector with Police Record.

2012 Y L R 600

[Lahore]

Before Muhammad Khalid Mehmood Khan and Syed Kazim Raza Shamsi, JJ

HAYAT AHMAD KHAN through his legal heirs and others---Appellants

Versus

Mrs. SAMINA MOAZZAM through attorney and others---Respondents

R.F.A. No.296 of 2005, decided on 11th July, 2011.

Contract Act (IX of 1872)---

----S. 188---Specific Relief Act (I of 1877), Ss.12 & 54---Agreement to sell property---Suit for specific performance, injunction and damages---Principal and agent---Principal was responsible to the acts which were done by the attorney during the currency of agreement of agency---In the present case, agency agreement between principal and agent was intact when the agreement to sell property was executed---Plea of undue influence could not be accepted on mere allegation specifically when claimant failed to prove that the respondent was in dominating position in the case rather the respondent was in compromising position as they had paid the amount but the possession remained with the appellants and as such the plea of undue influence was just a plea and had not been proved---Appellants' case was that there was an oral agreement, as such, in the circumstances of the case, it was the duty of the appellants to prove the existence of any oral agreement---Respondents had claimed that agreement was written but it was not signed by the appellants while the respondents had successfully proved the agreement of sale between the parties and payment of amount, as such the judgment of trial Court decreeing the suit did not warrant any interference---Appeal against order of the trial Court was dismissed, in circumstances.

Ali Subtain Fazali for Appellants.

Syed Najam ul Hassan Kazmi and Imran Muhammad Sarwar for Respondents.

Date of hearing: 20th June, 2011.

2012 Y L R 624

[Lahore]

Before Abdul Waheed Khan, J

HABIB ULLAH and others---Petitioners

Versus

ASIF MANZOOR---Respondent

Civil Revision No.1098 of 2010, heard on 17th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XVI, R.1 & O.XVIII, Rr.2, 3, 4---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Production of witness whose name was not mentioned in the list of witnesses---Plaintiff filed list of five witnesses---After recording statements of two witnesses, matter was fixed for remaining evidence the plaintiff produced another person as third witness---Defendant raised objection that since name of said person was not mentioned in the list of witnesses, his statement could not be recorded---Said objection of defendant was turned down by Appellate Court---Plaintiff did not make a request for calling said witness through the process of the court---Distinction had to be drawn between the terms 'call' and 'produce', after comparing provisions of O.XVI, R.1 and O.XVIII, Rr.2, 3, C.P.C.---Witness in attendance could be examined in accordance with the provisions of O.XVIII, Rr.2 & 4, C.P.C.---Objection of the defendant, was misconceived, in circumstances---Appellate Court in turning down objection of the defendant, did not appear to have commit-ted any illegality or irregularity calling for interference by the High Court---Revision was dismissed.

Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688 rel.

Atif Nisar for Petitioners.

Jamil Ahmad Abbasi for Respondent.

Date of hearing: 17th October, 2011.

2012 Y L R 630

[Lahore]

Before Syed Iftikhar Hussain Shah, J

TAJ MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.175-CB of 2010, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/ 201/ 365-B/ 34---Qatl-e-amd, causing disappearance of evidence of offence, abduction---Application for cancellation of pre-arrest bail, refusal of---Cancellation of pre-arrest bail---Considerations---Conduct of the parties after getting bail was most important for cancellation thereof---Factors to be considered for withdrawal of the concession of bail were, whether the party had misused the facility of bail, whether the accused was likely to abscond from the jurisdiction of the court and whether the party was hampering the investigation or threatening the witnesses or creating obstruction in the course of justice---Accused was not alleged to have committed any of the said acts and, therefore, there was no cogent reason or legal justification to cancel his pre-arrest bail granted by a competent court, especially when he was only alleged to have concealed the dead body of the deceased and committed a bailable offence under S.201, P.P.C.---Accused had no role, whatsoever, in the murder of the deceased---Trial Court had already enlarged the accused on bail under S.365-B, P.P.C. prior to the addition of Ss.302 and 201, P.P.C. in the F.I.R.---Impugned order of grant of pre-arrest bail to accused by Trial Court was maintained in circumstances---Petition for cancellation of pre-arrest bail was dismissed accordingly.

Barkat Ali Shaikh v. Qurban Shaikh and 3 others 2010 MLD 716; Shabbir-ul-Hassan v. Syed Zahid Hussain and another 2008 MLD 449 and Muhammad Ilyas v. Abdul Latif and another 2010 MLD 1530 ref

Rana A.D. Kamran for Petitioner.

Malik Muhammad Jafar, Deputy Prosecutor-General Punjab, along with Liaqat Ali A.S.-I for the State.

Ch. Pervaiz Akhtar Gujjar for Respondent No.2.

2012 Y L R 641

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD RAMZAN alias ASIF ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.406-J of 2005 and Murder Reference No.583 of 2005, heard on 3rd November, 2010.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Promptly recorded F.I.R. had ruled out any chances of false implication of accused and also established that complainant had seen the occurrence and he was not a chance witness being a resident of the same street---Other eye-witness was the resident of the house of occurrence and he had been injured in the incident by the accused---Medical evidence had fully corroborated the ocular testimony---Complainant and the injured eye-witnesses were not only brothers inter se but also the brothers of the accused and this relationship was not sufficient to discard their evidence, particularly in the absence of any previous enmity between them---Case was of single accused and kith and kin of the deceased would not substitute the real culprit with an innocent person---"Toka" recovered from accused was found to be stained with human blood---Accused had brutally murdered his real mother, grandmother and brother's wife besides causing serious injuries to his real brother and a minor child aged 4/5 years and he deserved nothing less than death sentence---Appeal was dismissed in circumstances.

Haji v. The State 2010 SCMR 650; Muhammad Ahmad (Mahmood Ahmed) v The State 2010 SCMR 660; Khalid Saif Ullah v The State 2008 SCMR 688; Irshad Ahmad and others v The State and others PLD 1996 SC 138; Asad Mahmood v. Akhlaq Ahmed and another 2010 SCMR 868; Zafar v The State 2010 SCMR 1084 and Manzoor Ahmed v The State 1999 SCMR 132 ref

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Interested testimony, credibility, corroboration---Principles stated.

Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660 ref.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Substitution---Plausibility---Substitution is a rare phenomenon, because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons.

Khalid Saif Ullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v The State and others PLD 1996 SC 138 ref

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

----S. 302(b)--- Qatl-e-amd--- Sentence---Penatly of death must be imposed if the Court finds the manner and method of incident to be brutal, horrific, heinous and shocking involving terrorist nature---In a conviction under S.302(b), P.P.C., normal sentence is death, except where some mitigating circumstances warranting imposition of lesser sentence are found on record.

Asad Mahmood v. Akhlaq Ahmed and another 2010 SCMR 868 and Zafar v. The State 2010 SCMR 1084 ref

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Sentnece, quantum of---Offender must be punished in proportion to the character and extent of his guilt, to be deterrent for him as well as to the rest of the society, without being unnecessarily harsh or needlessly indulgent.

Manzoor Ahmed v. The State 1999 SCMR 132 ref.

Barrister Munawar Iqbal Duggal for Appellant.

Ejaz Ahmad Bajwa, Defence Counsel appointed at the State expense.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 3rd November, 2010.

2012 Y L R 670

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Peer MUMTAZ SHAH KHAGGA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1086-B of 2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34/109---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Matter was reported to the Police with the delay of about four hours which delay had not been properly explained by the complainant---Firearm injury sustained by accused in the occurrence, had been suppressed by accused in F.I.R.---F.I.R. had revealed that there was a dispute of inheritance of property between accused and the complainant, who was brother of wife of accused---Case was of two versions, which version was correct; and who was aggressor, would be determined by the Trial Court after taking evidence of both parties---Such cases of counter versions about the same occurrence were covered for the grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C.---Plea of self-defence was one of the factors that could be considered by the court at time of bail stage---Case of accused falling within the ambit of further inquiry, accused was admitted to bail, in circumstances.

Farmanullah v. State and 3 others 2010 YLR 670 ref.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1875; Ali Akbar Shah v. Banaras Shah 1990 SCMR 1097; Zafar Iqbal v. The State 1999 PCr.LJ 1840 and Nadra v. Hamiat Khan PLD 1968 SC 310 rel.

Rai Bashir Ahmad for Petitioner.

Ch. Pervez Aftab for the Complainant.

Hassan Mahmood Khan Tareen, D.P.-G. Ghulam Rasool, Sub-Inspector with record for the State.

2012 Y L R 677

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

MUHAMMAD SHABAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1698 and Murder Reference No.838 of 2006, heard on 14th July, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b)/ 148/ 149--- Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---No inordinate delay had been caused by the complainant party in the lodging of the F.I.R.---Motive as alleged, seemed to not fit in the prosecution story and same had not been proved by the prosecution---Ocular testimony was not only inter se consistent, but had been corroborated by the medical evidence---No major flaw had been found in the prosecution version during cross-examination---Evidence of two witnesses could not be thrown out of consideration just on the ground that they were related to the deceased; and mere relationship by itself was no ground to disbelieve their evidence---Testimony of two eye-witnesses being natural, not suffering from any dishonest improvement, could be believed---No crime empty was taken into possession from the spot---Alleged 8 mm rifle recovered from the accused being a licenced one, would have to be in working order and the same result had been produced by the Forensic Science Laboratory---Report was mute as to when the last fire shot was made from its barrel---Recovery of alleged crime weapon, in circumstances, being inconsequential, was thrown out of consideration---Medical evidence, was in line with the ocular account and deformed metallic piece was extracted from the corpus at the time of autopsy, which in circumstances, corroborated the ocular testimony and was believed---Prosecution had been able to prove its case against accused beyond any shadow of doubt---Capital sentence awarded to accused by the Trial Court, however, could not be upheld for the reasons that no previous deep-rooted enmity had been found between the parties; that it was a case of single fire shot; that motive had not been proved by the prosecution and that recovery of crime weapon lacked legal value being not supported by positive ballistic report the same, in circumstances, could not be used against accused---Mitigating circum-stances being present in the quantum of sentence of accused, death sentence awarded to accused was converted into imprisonment for life, in circumstances.

Ahmed Yar Khan Dah for Appellant.

Tariq Javaid, D.P.-G. along with Muhammad Hussain, S.I. for Respon-dents.

Date of hearing: 14th July, 2011.

2012 Y L R 708

[Lahore]

Before Rauf Ahmad Shaikh, J

TANVEER and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Nos.2204-B and 4048-B of 2011, decided on 21st April, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Bail, grant of---Further inquiry---Accused who was very well-known to the complainant and the prosecution witnesses, was not nominated in the F.I.R., but was implicated through supplementary statement made after one month and one day---No overt act was attributed to said accused in said statement, and it was only alleged that he was also involved in the commission of offence---Allegation regarding accused's involvement in the commission of the offence, needed further probe and inquiry within the meanings of S.497(2), Cr.P.C. in circumstances---Accused, was admitted to bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/ 148/ 149--- Qatl-e-amd--- Bail, refusal of---Incident was a broad daylight occurrence, and there was no possibility of misidentification---Contention that deceased was killed by some other person, was repelled, because the real father of the deceased would not spare accused, if they had been in fact involved in the commission of offence---Prosecution witness had fully supported the prosecution version---Deceased sustained .12 bore firearm injuries on his person and according to the prosecution witnesses, all said co-accused made firing with their respective weapons---Prima facie, accused were responsible for all injuries sustained by the victim and his ultimate demise and were connected with the commission of offence under S.302, P.P.C. which fell within the prohibitory clause of S.497, Cr.P.C.---Bail was refused to said co-accused, in circumstances.

Malik Aftab Aslam for Petitioners.

Rana Muhammad Sajjad Afzal for the Complainant.

Mian Muhammad Awais Mazhar, D.P.-G. for the State and Israr, Inspector/S.H.O. along with record.

2012 Y L R 721

[Lahore]

Before Asad Munir, J

MUHAMMAD MIFTAH---Petitioner

Versus

Mst. IFFAT AZIZ and others---Respondents

Writ Petition No.24671 of 2011, decided on 22nd November, 2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17-A ---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance of minor child---Order of Family Court fixing interim maintenance of minor---Validity---Such order was tentative in nature as issue of maintenance had yet to be decided finally by Family Court on basis of evidence to be produced by parties---High Court dismissed constitutional petition for being not maintainable.

Fawad Akram Shafi for Petitioner.

Waqar Anjum for Respondents Nos. 1 to 3.

2012 Y L R 732

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMJAD FAROOQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.126, Murder Reference 2012 and Criminal Revision No.117 of 2005, heard on 29th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Firearm injury specifically attributed to accused on the back of the deceased's right shoulder was supported by the postmortem report---Ocular account was corroborated by medical evidence---Eye-witnesses had no motive to falsely implicate the accused in the case and they had remained consistent on material points during cross-examination---Trial Court had rightly relied upon the ocular testimony---Counsel for the accused had not seriously challenged the conviction and had prayed for reduction in his sentence---What happened immediately before the occurrence, was not brought on record---Motive for the incident could not be proved---Accused had not repeated the fire---Prosecution witnesses had made exaggerations about the involvement of other acquitted accused in the case---Conviction of accused was maintained, but his sentence of death was converted into imprisonment for life in circumstances.

Abdul Aziz Khan Niazi for Appellant.

Altaf Ibrahim Qureshi for Complainant.

Mian Bashir Ahmad Bhatti, Additional Prosecutor General for the State.

Date of hearing: 29th April, 2010.

2012 Y L R 745

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. FARZANA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3097-B of 2011, decided on 28th April, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/ 324/ 148/ 149/ 109---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused lady at the relevant time appeared to be empty-handed and she had been assigned a general role along with others to have hurled abuses and beaten a woman---No specific injury had been attributed to accused and the question of vicarious liability in the occurrence was to be gone into at the trial---Case against accused, therefore, called for further inquiry into her guilt as envisaged under S.497(2), Cr.P.C.---Accused could not be refused bail on account of her alleged abscondence when she had been found entitled to bail on merits---Accused was having one year old suckling baby with her in jail and on this ground alone she deserved her release on bail---Accused was a previous non-convict and she was in jail for the last one month and twenty-five days---Bail was allowed to accused in circumstances.

Mst. Zarina v. The State 1991 MLD 518 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/ 324/ 148/ 149/ 109--- Qatl-e-amd attempt to commit qatl-e-amd---Bail---Accused lady was having her one year old suckling baby with her in jail---Accused deserved bail on this ground alone.

Mst. Zarina v. The State 1991 MLD 518 ref.

Malik Mushtaq Ahmed for Petitioner.

Khurram Khan, Deputy Prosecutor General on behalf of Respondent No.1/State with Javed Iqbal, S.I. with Police Record.

2012 Y L R 761

[Lahore]

Before Sagheer Ahmad Qadri and Muhammad Ameer Bhatti, JJ

ABDUL SATTAR alias TARA---Petitioner

Versus

HABIB ULLAH and others---Respondent

Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.1042 of 2004, decided on 26th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c) [as amended by Code of Criminal Procedure (Amendment) Act (VIII of 2011), S.2]---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspension of sentence---Bail, grant of---Appeal of accused against his conviction and sentence which was pending since 2004, had not been disposed of---Case of accused was covered under clause (c) of amended S.426(1-A), Cr.P.C. as his appeal had not been decided within period of two years of his conviction---Petition for suspension of sentence was allowed and sentence passed against him was suspended and he was directed to be released on bail, in circumstances.

Abdur Rashid v. The State 1988 SCMR 149 and Shahbaz v. The State 1992 SCMR 1903 distinguished.

Liaquat v. State 1995 SCMR 1819 rel.

Ch. Muhammad Anwar Bhinder for Petitioner.

Syed Hassan Qadir Shah, for Respondent.

Shahid Bashir, D.P.-G.

2012 Y L R 778

[Lahore]

Before Shahid Hameed Dar, J

SARDAR MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4808/B of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/324/353/186/224/225/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistence or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, rioting armed with deadly weapon and unlicenced possession of arms---Bail, refusal of---Accused was specifically charged for causing firearm injuries on the back of the deceased, which were supported by medical evidence---Mother of the deceased in her private complaint had also reiterated her version qua the said role of the accused---Investigating Officer had also found the accused to have participated in the occurrence at the relevant time---Case had reached the stage of recording of prosecution evidence---Accused having been assigned specific role of firing on the deceased, dictum of consistency was not applicable to him, as his case did not warrant further inquiry within the meaning of S.497(2), Cr.P.C.---Reasonable grounds, prima facie, had linked the accused with the crime---Case of accused fell within the mischief of the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Ch. Abdul Rashid for Petitioner.

A.D. Naseem for Mst. Rashida Bibi.

Syed Abbas Haider, Advocate.

Sahibzada M.A. Amin Mian, A.P.-G for the State.

Liaqat Ali S.-I.

2012 Y L R 791

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD MATTA---Appellant

Versus

MUHAMMAD LATIF and others---Respondents

Criminal Appeal No.1189 of 2005, decided on 3rd November, 2010.

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

----Ss. 337-F(i)/337-L(2)/34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Causing of hurt Ghayr-Jaifah etc.---Appeal against acquittal---Accused had been admitted to bail by Trial Court on the basis of Compromise between the parties---Later on Trial Court accepted the application moved by accused under S.249-A, Cr.P.C., and acquitted them of the charges levelled against them on the basis of the said compromise---Validity---Compromise entered into by the parties confined only to bail matter and finding of Trial Court that in the presence of the aforesaid compromise between the parties at bail stage there was no possibility of conviction of accused, was contrary to and against the dictates of settled law---Impugned order of acquittal was consequently set aside and the case was remanded to Trial court for decision afresh keeping in view the statement of the complainant---Appeal was accepted accordingly.

PLD 2002 Lah. 739 rel.

Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342 rel.

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

----S.345(2)---Penal Code (XLV of 1860), S.337-F(i)/337-L (2)/34 causing of hurt "Ghyr-Jaifah" etc.---Compromise at bail stage invalid at trial---Compromise effected at bail stage when prosecution of the offence was not pending before Trial Court, cannot be made basis for acquittal of accused, as under S.345(2), Cr.P.C. Trial Court had to satisfy itself and grant permission to compound the offence being tried by it.

Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342 rel.

Naseem Ullah Khan Niazi for Appellant.

Mian Muhammad Awais Mazhar, D.P.-G.

Ch. Muhammad Arshad Bajwa for Respondents.

2012 Y L R 801

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD SHAFEEQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2832-B of 2011, decided on 24th August, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.395/412---Dacoity, dishonestly receiving property stolen in dacoity---Bail, grant of---Further inquiry---Accused was not nominated in F.I.R. and after 26 days of the occurrence complainant in his supplementary statement had shown his suspicion on the accused and others---Accused was not put to any identification test and this fact alone was sufficient to make his case one of further inquiry---Mere presence of accused did not bar grant of bail to him if otherwise he deserved the same---Investigation was complete and challan had been submitted in the court---Accused was not a previous convict---Bail was allowed to accused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 395 & 412---Dacoity, dishonestly receiving property stolen in dacoity---Bail--Principles--- Mere presence of accused does not create any bar for grant of bail if otherwise accused becomes entitled for the same.

Abid Hussain Bhutta for Petitioner.

Ch. Muhammad Akbar, D.P.-G. for the State along with Sadiq S.I. with record.

Bakht Yar Mehdi for the Complainant.

2012 Y L R 805

[Lahore]

Before Ch. Muhammad Tariq and Sagheer Ahmad Qadri, JJ

IBRAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.177 and 178 of 2010 and Criminal Appeal No.171 of 2011, heard on 29th June, 2011.

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

----Ss. 9(c), 25 & 29---Smuggling of narcotics--- Appreciation of evidence---Statements of prosecution witnesses had no material discrepancies---Minor discrepancies and innocent admissions during cross-examination were natural due to a lapse of more than three years---Credibility of police witnesses or Excise Staff was as good and respectable as any other public witnesses and their statements could not be discarded owing to their being employees of the said departments---Section 25 of the Control of Narcotic Substances Act, 1997, had excluded the applicability of S.103, Cr.P.C. in narcotic cases--- Non-association of private witnesses with investigation, therefore, was no defect to vitiate conviction---Provisions of Ss.20, 21 and 22 of the said Act being directory in nature, their non-compliance would not make the trial bad in the eyes of law---Charas and opium had been recovered from the car in possession of accused, technicalities of any nature could be overlooked in the larger interest of the country, if the case otherwise stood proved---Chemical Examiner's reports regarding charas and opium recovered from the accused were positive---Prosecution thus, had discharged its initial onus, whereas accused had failed to discharge their burden in terms of S.29 of the Control of Narcotic Substances Act, 1997---Prosecution evidence was consis-tent---Impugned judgment did not suffer from any illegality---Appeals were dis-missed in circumstances.

Muhammad Khan v. The State 2008 SCMR 1616 ref.

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

----Ss. 20, 21 & 22---Search and investigation---Provisions of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997, being directory in nature, non-compliance thereof would not make the trial or conviction bad in the eyes of law.

(c) Interpretation of Statutes---

----Special law---Standard of proof---Standard of proving the case under Special Law is different, because Special Law is read as a whole while comparing with general law, as Special Law excludes the provisions of general law.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Principle---Approach of court should be dynamic and pragmatic in reaching true facts of the case and drawing correct and rational inference and conclusion, while deciding such cases---Court shall consider entire material as a whole and if satisfied about the case having been proved, conviction should be recorded notwithstanding procedural defects.

Raja Shahzad Anwar for Appellant.

Waqas A. Rehman, Special Prosecutor NAB for Respondent.

Date of hearing: 29th June, 2011.

2012 Y L R 812

[Lahore]

Before Manzoor Ahmad Malik and Altaf Ibrahim Qureshi, JJ

MUHAMMAD SALEEM and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.331 and Criminal Revision No.133 of 2006, heard on 4th October, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant and other prosecution witness, were the real brothers and both of them were living in a Mauza, which was 40/50 miles away from the place of occurrence and they had no business to be there on the relevant date---Story of the prosecution was highly improbable---Except said two real brothers, no independent witness from the place of occurrence, was cited to strengthen the prosecution case---Said two prosecution witnesses had their own motive to falsely implicate accused and their credibility was not free from doubt---Said witnesses were interested and inimical witnesses, as factum of enmity was admitted between the parties---Incident, prima facie, appeared to be a blind murder but accused was involved only to exert pressure upon him and others to effect compromise in another murder case, which had culminated into conviction of two persons of the complainant party, who were confined and suffering life imprisonment---Medical evidence, did not fully support the ocular account---Enmity between the parties was admitted, therefore, motive could not be attributed to the accused---Report of Forensic Science Laboratory, was in negative and same was intentionally withheld by the prosecution---Prosecution having failed to bring home the guilt of accused beyond reasonable doubt, accused was acquitted from the charge and was directed to be released, in circumstances.

2001 SCMR 208; 2011 SCMR 910; 2004 SCMR 1676; 2005 SCMR 427 and 2005 SCMR 49 ref.

Hafiz Shahid Nadeem Kahloon for Appellants.

Mumtaz Hussain Bazmi for the Complainant/Petitioner (in Criminal Revision No. 133 of 2006).

Asghar Ali Gill, Deputy Prosecutor General for the State.

Date of hearing: 4th October, 2011.

2012 Y L R 824

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3188-B of 2011, decided on 29th April, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii)/337-F(v)/337-L(1), (2)/ 452/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Causing hurt, house trespass and abduction---Bail, grant of---Accused had allegedly enticed away the daughter-in-law of the complainant due to illicit intimacy with her---Complainant had not named the accused in the F.I.R., but had implicated him in the case in his supplementary statement recorded after five years of the occurrence, the evidentiary value of which would be determined at the trial---No other evidence existed on record except the said belated supplementary statement of the complainant---Guilt of accused, thus, needed further probe under S.497(2), Cr.P.C.---Commencement of trial was not a clog on grant of bail to accused---Accused was admitted to bail in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497---Bail---Commencement of trial---Effect---Commencement of trial of accused in the case is not a clog on grant of bail to him.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Kamran Khalil for Petitioner.

Khurram Khan, D.P.-G. for the State with Muhammad Iqbal, A.S.-I., with police record.

Respondent No.2/Complainant, in person.

2012 Y L R 828

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD SHAFI---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No.12340 of 2011, decided on 5th July, 2011.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Valid grounds for quashing F.I.R. are jurisdictional defect patent on the record; patent violation of some provision of law; allegations contained in the F.I.R. not constituting an offence, and attempt to enforce civil liability through criminal court.

(b) Administration of justice---

----When law requires a thing to be done in a particular manner, it should be done in that manner or not at all.

(c) Police Order (22 of 2002)----

----Art. 155-C---Criminal Procedure Code (V of 1898), Ss.154 & 155---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---Allegation made in the F.I.R. under Art.155(c) of the Police Order, 2002, did not constitute commission of a cognizable offence within the meaning of S.154, Cr.P.C., therefore action, if at all to be initiated, was under S.155, Cr.P.C. in view of use of expression "shall" in the aforementioned provision---Patent violation of the provisions of Ss.154 and 155, Cr.P.C. having occurred, and continuation of proceedings would be an abuse of the process of law---Impugned F.I.R. was consequently quashed, with liberty to proceed under S.155, Cr.P.C.---Constitutional petition was accepted accordingly.

Shahid Hussain and another v. Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others 2011 YLR 294 and Khuda Bakhsh v. Additional Sessions Judge, D.G. Khan and 3 others 2010 YLR 2622 ref.

Muhammad Ijaz Khan for Petitioner with Petitioner in person.

Rana Shamshad Khan, A.A.-G. for the State.

2012 Y L R 838

[Lahore]

Before Muhammad Anwaar ul Haq, J

Rana ZAHEER AHMAD and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.11237-B of 20j 1, decided on 11th October, 2011.

Criminal Procedure Code (V of1898)---

----Ss.497(2) & 498---Penal Code (XLV of 1860), Ss.440, 448, 148 & 149---Police Order (22 of 2002), Art.155-C---Mischief committed after preparation made for causing death or hurt and house trespass--Pre-arrest bail, grant of---Delay of three months in lodging of F.I.R.---Pendency of civil litigation between parties regarding the same property---No specific role attributed to accused in F.LR.---Absence of medico-legal certificate in support of injury on person of complainant---Report of Senior DPO, showing F.LR. to be based on wrong facts and recommendation for registration of F.I.R. against Investi­gation Officer under Art. 155-C of Police Order, 2002---Application of S.440, P.P.C. to the case was prima facie matter of further inquiry---Guilt of accused in view of the facts could be validly determined after recording evidence---Recovery of mobile phone and cash from accused would be futile in absence of any specific allegation on record against accused---Accused were granted pre-arrest bail, in circumstances.

Muhammad Azam v. The State 1996 SCMR 71 and Muhammad Arshad v. The State 1996 SCMR 74 distinguished.

Muhammad Shahzad Mushtaq for Petitioners along with petitioners in person.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State with Nasrullah S.-I. with record.

Ch. Muhammad Hussain for the Complainant.

2012 Y L R 841

[Lahore]

Before Manzoor Ahmad Malik and Altaf Ibrahim Qureshi, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.287. 303-J of 2008, and Murder Reference No.8 of 2009/BWP, decided on 6th October, 2011.

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

----Ss. 302(b) & 364---Qatl-e-amd, abduction---Appreciation of evidence---Benefit of doubt---Unexplained delay of more than 24 hours in reporting the matter to the Police---No allegation that the deceased was taken away by accused forcibly or deceitfully---Occurrence had happened at a place which was at a place of about 24 Kilometers from the residence of the complainant, the story of the complainant that when he reached the place of occurrence, accused and his co-accused were concealing the dead-body, did not appeal to common sense---Complainant was not eye-witness, but he claimed that he was informed by two persons---One of those two persons did not appear and the statement of the other one could not be relied upon because he was not resident of the area where the occurrence had taken place---Said person, in circumstances, was a chance witness, his testimony was highly improbable---Stick was taken into possession as offensive weapon, but the complainant had admitted that sticks were available at the spot when he was there---In absence of description of the stick, which was not stained with blood, an inference could be drawn that, same being an ordinary stick, could easily be procured from any place or the market---Recovery of stick, in circumstances, was of no avail to prosecution---Motive, which remained unproved, was disbelieved---Apart from accused four other persons were also implicated---Out of those was an accused of abetment, who was not even tried and was let off by the Police---One other person was absconder, while remaining two were tried and acquitted---Evidence to the extent of acquitted accused, which was disbelieved, same could not be believed qua the accused, until the same was corroborated by an independent piece of evidence, but same was not corroborated from the evidence on record---Conviction and sentence awarded to accused vide impugned judgment by the Trial Court, was set aside, giving him benefit of doubt, he was acquitted of the charge and was released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution must prove its case beyond any shadow of doubt; and if a slightest doubt was created, its benefit was to be given to accused, not as a matter of grace, but as a matter of right.

Shahid Zaheer Syed and Aslam Javed Minhas for Appellant.

Muhammad Sharif Bhatti for the Complainant.

Asghar Ali Gill, Deputy Prosecutor General.

Date of hearing: 6th October, 2011.

2012 Y L R 856

[Lahore]

Before Abdus Sattar Asghar, J

ZULFIQAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5228-B of 2011, decided on 6th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. showed that accused was present at the spot empty handed and no injury was attributed to him upon the deceased or any other prosecution witness---Only proverbial lalkara was attributed to the accused and it was yet to be established, whether actual assailant acted independently or under the influence of the accused at the time of commission of the offence---Plea of previous animosity or alleged motive raised by complainant party was not sub-stantiated by any evidence---Contention of complainant concerning common intention or vicarious liability was yet to be established during the course of evidence--Case of accused called for further inquiry into his guilt---Charges had been framed against accused but no prosecution witness was recorded---Accused was about 65 years old and in such circumstances bail could not be refused to him as a matter of punishment---Bail application of accused was accepted and he was allowed bail.

Rafiq Khan v. The State 1995 SCMR 343 rel.

Malik Imtiaz Haider Maitla for Petitioner.

Muhammad Amjad Rafique, Deputy Prosecutor General for the State. With Mukhtiar A.S.-I

Muhammad Zafar Khan Punian for the Complainant.

2012 Y L R 867

[Lahore]

Before Sagheer Ahmad Qadri and Malik Shahzad Ahmed Khan, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.521 of 2009, heard on 28th November, 2011.

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

----Ss. 9(c) & 29---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---When severe punishments were provided under special enactment i.e. Control of Narcotic Substances Act, 1997, heavy burden lay on the prosecution to prove the charge against accused beyond any reasonable shadow of doubt---Keeping possession of narcotic substance itself was an offence; and if conscious possession of any such substance was proved, then under S.29 of Control of Narcotic Substances Act, 1997, burden would shift on the person to show as to how and in what circumstances he was found in possession of the substance; and if he failed to show cause, severe punishment could be awarded to him---Prosecution was to prove firstly that the recovered substance was narcotic; and was to be proved with certainty by unimpeachable admissible evidence statements of the prosecution witnesses that the substance was recovered from the possession of the accused person---In the present case, accused was found present in the parking area of the Airport along with his two co-accused, and from his possession a bag containing 4 kgs. heroin was recovered out of which only one gram substance allegedly was separated for sample---Two witnesses who claimed themselves to be present at the time of recovery of heroin from accused, specifically stated that only one gram was separated as sample---Five packets which contained five grams of heroin as sample parcel were sent to the Office of Chemical Examiner, about which report in the positive was submitted before the Trial Court---Said report, according to the statement of prosecution witness, did not relate to the substance recovered from the accused---One could not say with certainty that the substance allegedly recovered from the accused was narcotic---Prosecution was not able to prove that substance was the same which was recovered from the accused---Report of Chemical Examiner, in circumstances, could not connect accused with the alleged recovery of heroin---Benefit of doubt was to be extended in favour of accused---Impugned conviction and sentence awarded to accused, was set aside, he was acquitted of the charge and was released from the jail, in circumstances.

Noor Alam Khan for Appellant.

Waqas A. Rehman, Special Prosecutor ANF for Respondent.

Date of hearing: 28th November, 2011.

2012 Y L R 875

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD AKRAM and 2 others---Petitioners

Versus

Mian GHULAM MUHAMMAD and others---Respondents

Writ Petition No.5253 of 2006, heard on 23rd January, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 151, 152 & 153---Constitution of Pakistan, Art. 199---Constitutional Petition---Rectification of clerical, typographical errors and amendment/ correction in decree after pronouncement of judgment---Correction in khasra numbers of land mentioned in the decree---Petitioner's application for correction of khasra numbers of suit-land as mentioned in the decree was dismissed by Trial Court---Contention of petitioner was that due to typographical mistake, khasra numbers had been incorrectly mentioned in the plaint as well as the decree of Trial Court and confusion had arisen in relation to the said khasra numbers due to numbering done by the use of Urdu numerical letters---Said khasra numbers had not been disputed by the original owner of the land at the time of filing the consenting written statement---Validity---Mistake in the decree sheet was declared as a bona fide mistake, and Trial Court was directed to make necessary corrections and amendments in the decree sheet---Orders of courts below were set aside, and constitutional petition was allowed accordingly.

Rashida Begum and another v. Ghulam Farid Shah and another PLD 1973 Lah. 637; Muhammad Munawar v. Ch. Khurshid Alam 1979 SCMR 159 and Muhammad Tufail and 3 others v. Ghulam Farid and 4 others 2000 SCMR 1035 rel.

Sh. Naveed Shehryar for Petitioner.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 23rd January, 2012.

2012 Y L R 881

[Lahore]

Before Sh. Ahmad Farooq and Syed Muhammad Kazim Raza Shamsi, JJ

ALLAH DITTA and another---Appellants

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2011 and Criminal Appeal No.1794 of 2010, decided on 14th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302/392/404/411---Qatl-e-amd, robbery, dishonest misappropriation of property possessed by deceased, dishonestly receiving stolen property---Application for suspension of sentence---Scope---Accused and co-accused had been sentenced by Trial Court and report of jail authorities revealed that out of their total sentence, both had only served out five years, eight months and twelve days including remissions while the remaining unserved period of their sentence was nineteen years, three months and eighteen days---Contentions raised by accused and co-accused were relatable to the merits of the case and court could not enter into re-appraisal of the evidence at stage of present petition---Trial court had found that accused and co-accused shared common intention of the co-accused, who had committed the murder of the deceased---Accused and co-accused failed to identify any legal error in the impugned order of Trial Court to justify suspension of their sentences---Application for suspension of sentence was dismissed accordingly.

Liaqat Ali Malik for Appellant.

Muhammad Akhlaq, Deputy Prosecutor-General for the State.

Syed Faiz-ul-Hassan for the Complainant.

2012 Y L R 899

[Lahore]

Before Malik Shahzad Ahmad Khan, J

ABDUL RAUF---Petitioner

Versus

S.H.O. and 3 others---Respondents

Criminal Miscellaneous No.1977-H of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Detention of accused while on bail---Recovery of accused---Detenu (accused) and co-accused were charged for a case under section 376, PPC but were granted bail by court below---Complainant of the case filed a petition before High court for cancellation of bail to the extent of the co-accused only, which was accepted---Complainant did not move any petition for cancellation of bail of the detenu but still detenu was arrested by police officials---Bail granted to detenu had not been cancelled by any court, therefore, his detention was improper---Habeas corpus petition was accepted and detenu was directed to be released.

Syed Faiz-ul-Hassan for Petitioner.

Arshad Mehmood, D.P.G. with Amir, A.S.-I. for Respondents.

2012 Y L R 905

[Lahore]

Before Ijaz Ahmad, J

GHULAM HASSAN---Petitioner

Versus

AHMAD BAKHSH and another---Respondents

Civil Revision No.287-D of 1997, decided on 13th October, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Making of Talb-e-Muwathibat--- Necessary for plaintiff to give particulars of date, time and place in the plaint of making Talb-e-Muwathibat---Suit of plaintiff was dismissed by Trial Court but same was decreed by Appellate Court---Defendants contended that plaintiffs did not mention the time, date and place of receipt of information about sale of suit-land and the making of Talb-e-Muwathibat---Effect---Plaintiffs, in their plaint before Trial Court, had not mentioned the time place and date of receipt of information about the sale and of making the Talb-e-Muwathibat and could not be allowed to improve their case by mentioning of such factors in the evidence---Statement of plaintiffs before Trial Court included the bald statement that four months and some days earlier they had information of sale of suit-land---Such statement could not be taken to be the making of Talbs in accordance with the law as envisaged in S.13 of the Punjab Pre-emption Act, 1991---Plaintiffs had been unable to prove the making of Talbs in accordance with law and were not entitled to the decree by the Appellate Court---Decree of Appellate Court was set aside and that of the Trial Court in favour of the defendants was restored---Revision was accepted accordingly.

Mian Pir Muhammad and another v. Faqair Muhammad through L.Rs. and others PLD 2007 SC 302; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2004 SCMR 404; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309 and Mst. Saleem Akhtar v. Chaudhary Shauk Ahmed 2009 SCMR 673 rel.

Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 distinguished.

Syed Muhammad Mumtaz Hussain Shah for Appellant.

Athar Rehman Khan for Respondents.

Date of hearing: 10th October, 2011.

2012 Y L R 910

[Lahore]

Before Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

AKHTAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.422-J and Murder Reference No.585 of 2006, heard on 19th December, 2011.

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

----S.302(b)--Qatl-e-amd---Appreciation of evidence---Delay of more than six hours in reporting the matter to police in circumstances was neither conscious nor deliberate---Presence of complainant in the house along with her mother and real brother on the night of occurrence was quite natural---Case of the complainant, both in the F.I.R. and private complainant, was that her real mother and minor brother had been killed by the accused in her presence in the said house, who was her husband---Mistaken identity of accused was out of question and there was no reason for false implication of accused---Medical evidence had supported the ocular account of occurrence furnished by the complainant---Case of accused was quite distinguishable from that of the three acquitted co-accused---Motive set up by the prosecution appeared to be probable---Quality of evidence which weighed with the Court and not the quantity thereof---Even if the report of Forensic Science Laboratory qua the carbine recovered from the accused and the crime empties was taken out of consideration, yet prosecution had fully proved its case against the accused beyond any doubt---No mitigating circumstance was available on record in favour of accused and he being a callous person did not deserve any leniency---Conviction and sentence of death of accused on two counts were maintained in circumstances.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199 ref

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Principle---Quality of evidence weighs with the Court and not its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199 ref

Sh. Irfan Akram Assisted by Muhammad Aslam Malik, for Appellants for the State expence.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Mehram Ali Bali for the Complainant.

Date of hearing: 19th December, 2011.

2012 Y L R 928

[Lahore]

Before Mazhar Iqbal Sidhu, J

AHMAD DIN alias AHMAD YAR---Applicant

Versus

THE STATE and another---Respondents

C.M. No.1 in Criminal Appeal No. 1797 of 2011, decided on 17th November, 2011.

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

----Ss.426(1) & 496---Penal Code (XLV of 1860), S.337-A(i)---Hurt "Shajjah"---Suspension of sentence---Accused was convicted under S.337-A(i), P.P.C., which according to Schedule-II, Cr.P.C. was bailable and therefore he had indefeasible right by virtue of S.496, Cr.P.C. to be enlarged on bail by suspension of his sentence---Sentence awarded to accused by Trial Court was, consequently, suspended and he was admitted to bail accordingly.

Mian Muhammad Ali Qureshi and others v. The State PLD1963 SC 478; Ghulam Mujtaba v. The State 1998 PCr.LJ 1379 and Shah Hussain v. The State PLD 1995 Kar. 209 ref.

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

----S.426---Penal Code (XLV of 1860), S.337-A(i)---Hurt "Shajjah"---Suspension of sentence in bailable offence---Right of accused---After having filed an appeal against his conviction under a bailable offence, accused is entitled to be released on bail as a matter of right.

Shah Hussain v. The State PLD 1995 Kar. 209 ref.

Abdul Qadus Rawal for Applicant.

Noor Ahmad Bhatti, DPP for the State.

2012 Y L R 938

[Lahore]

Before Rauf Ahmad Sheikh and Syed Ejaz Hussain Shah, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.59 and C.S.R. No.3 of 2007, heard on 14th September, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd---Appreciation of evidence---Accused in his statement recorded under S.342, Cr.P.C. had admitted to have committed the murder of the deceased under grave and sudden provocation in the court room of Sessions Judge---Contention that the accused had fired at the deceased when the latter had hurled abuses and called his mother and sister bad names, was not substantiated on record by any tangible proof---Accused could not be believed to have hurled abuses in the Sessions Court, where he had appeared to face the trial of a murder case---Ocular evidence had proved that the accused had fired at the deceased causing his death and this fact was not denied by the accused---Accused was apprehended at the spot along with the pistol---Crime empty had been found to have been fired from the said pistol by the Forensic Science Laboratory, which had fully corroborated the prosecution version---Accused had come to the court while concealing a pistol in his fold (Dub) and used it in the court room---No question of any sudden and grave provocation thus arose---Murder was a premeditated, preplanned and a cold-blooded one---Age of the accused being 20 years was not a mitigating circumstance in his favour, as he had caused the qatl-e-amd of a young man of 27 years, after having made preparation and under a plan in the court room of Sessions Judge, which was a grave instance of devil dareness and of a gruesome and callous act---Conviction and sentence of death of accused were upheld in circumstances.

Ajun Shah v. The State PLD 1967 SC 185; Zulfiqar alias Bhutto v. The State 1995 SCMR 1668; Shera and others v. The State 1976 PCr.LJ 1028; Shah Nawaz alias Shani v. The State 2005 YLR 1011 and Nasir Shah v. The State 2006 SCMR 1796 ref.

Khalid Ibn-e-Aziz for Appellant at State expenses.

M. Amjad Rafiq, D.P.-G., for the State.

Date of hearing: 14th September, 2011.

2012 Y L R 945

[Lahore]

Before Sagheer Ahmed Qadri, J

MUHAMMAD AKHTAR KIANI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and others---Respondents

Writ Petition No.2369 of 2011, decided on 12th December, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Civil Procedure Code (V of 1908), O.XVI, R.1---Constitution of Pakistan, Art.199---Constitutional peti-tion---Pre-emption suit---Receipt of notice of Talb-e-Ishhad denied by defendant---Non-filing of list of witnesses to be called through court by plaintiff within statutory period of seven days---Plaintiff's application after completing his evidence for summoning Postman as witness to prove sending of such notice through registered post and its receipt by defendant---Validity---Proving of Talb-e-Muwathibat first and then Talb-e-Ishhad was sine qua non to exercise of right of pre-emption---Plaintiff had failed to comply with mandatory provision of O.XVI, R. 1(1), C.P.C. and kept waiting till day when statements of plaintiff's witnesses were recorded and cross-examined---Plaintiff at such belated stage wanted to fill lacuna left in his case---Plaintiff for his failure to submit such list at relevant time had not shown "good cause", which was mandatory requirement for exercise of jurisdiction under O.XVI, R.1(2), C.P.C.---Such application was dismissed, in circumstances.

Messrs Varan Tours v. Province of the Punjab and others 2011 YLR 5; Naeem Akhtar v. Additional District Judge and others 2005 MLD 1713; The Australasia Bank Limited v. Messrs Mangora Textile Industries, Swat and others 1981 SCMR 150; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Saeed Ahmad v. Muhammad Anwar and others 1989 MLD 4119; Mst.Surriya Begum and 3 others v. Abdul Rub and 4 others 1992 ALD 425(1) Karachi; Abdul Jalil and another v. Mansoor Ahmad 1980 CLC 1815; Khadim Hussain v. Additional District Judge, R.Y.Khan, and others NLR 1991 Civil 354; Mst.Hanifan Khatoon v. Second Additional District Judge, Khanpur and others 1989 CLC 42 and Muhammad Khalid v. Mst. Mehmooda Khanum and 9 others 2008 YLR 1871 ref.

Mst.Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 rel.

Imran Shafique for Petitioner.

Raja Muhammad Aslam for Respondents Nos. 3 and 4.

2012 Y L R 953

[Lahore]

Before Ch. Muhammad Tariq and Muhammad Yawar Ali, JJ

MUHAMMAD ISMAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.66 of 2008 and Murder Reference No.343 of 2005, decided on 10th May, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused had been nominated with a specific role in the promptly lodged F.I.R.---Occurrence had taken place in broad-daylight---Eye-witnesses had explained the occurrence in detail---Hatchet recovered at the instance of accused was found to be stained with human blood---Accused and deceased were brothers---Accused, in his statement recorded under S.342, Cr.P.C. had admitted to have committed the murder of the deceased---Incident had taken place in the house of the complainant---Accused had brutally killed the deceased by causing five hatchet injuries on his person and he deserved no leniency---Plea of partial compromise and relationship between the parties could hardly be considered for mitigating sentence---No mitigating circumstance was available in favour of accused---Appeal was dismissed in circumstances.

Muhammad Nawaz and 12 others v. The State 2005 YLR 2640 and Muhammad Yaqoob and others v. The State 2009 SCMR 527 ref

Muhammad Masood Sabir for Appellant.

Munir Ahmed Sial Deputy Prosecutor-General for the State.

Date of hearing: 10th May, 2011.

2012 Y L R 969

[Lahore]

Before Sardar Muhammad Shamim Khan, J

KHADIM HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.430-B and 127-B of 2011, decided on 15th June, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/ 109/ 148/ 149---Qatl-e-amd, abetment rioting, armed with a deadly weapon, common object---Bail, refusal of--Matter had been reported to police with reasonable promptitude---Accused had been nominated in the F.I.R. with a specific allegation of having caused the death of the deceased by strangulation after tying cloth around his neck---Occurrence having taken place at day time, complainant being father of the deceased could not be expected to falsely involve the accused instead of real culprits---Post mortem report of deceased had corroborated the ocular evidence---Prima facie, police had created a second version in order to favour the accused---Opinion of police regarding innocence of accused was immaterial---Bail was disallowed to accused, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/109/148/149--- Qatl-e-amd, abet-ment rioting, armed with a deadly weapon, common object---Bail, grant of---Accused though nominated in F.I.R. was not alleged to have caused death of the deceased---Allegation against accused was that he along with co-accused had caught hold the deceased from his arms and legs, without specifying as to how accused had held the deceased---Deceased being a boy of 12/13 years it would be adjudged at the trial if it was necessary to catch hold of the deceased by his legs and arms for strangulation or not---Accused during police investigation was found only to have abetted his co-accused for the murder of the deceased---Co-accused who had allegedly caught hold the deceased from his arms and legs along with the accused at the time of occurrence, had been declared innocent in police investigation---Accused was behind the bars for eleven months without trial---Case of accused required further inquiry---Accused was admitted to bail in circumstances.

Allah Bakhsh Khan Kolachi for Petitioner (in Criminal Miscellaneous No.430-B of 2011).

Sardar Abid Khan Jatoi for Petitioner (in Criminal Miscellaneous No.127-B of 2011).

James Joseph for the Complainant.

Hassan Mehmood Khan Tareen, D.P.G. for the State.

Haq Nawaz, Sub-Inspector with record.

2012 Y L R 977

[Lahore]

Before Mehmood Maqbool Bajwa, J

AHMAD YAR---Petitioner

Versus

GHULAM ABBAS and 26 others---Respondents

Civil Revision No.3520 and Revision Petition No.3595 of 2010, heard on 15th November, 2011.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Pleadings, amendment of---Principle---Defendants filed application before Trial Court for amendment of their written statement, whereby they wanted to incorporate facts regarding possession of suit property, which application was allowed by Trial Court---Validity---Stance of defendants regarding possession of suit property prior to year, 1985 and after year, 1985, would not change nature of defence by defendants---Objection regarding main-tainability of suit in view of dismissal of earlier suit on similar cause of action required serious consideration and would not ensue result advanced by defendants---Proposed amendment, even if presumed to be raising new plea, could not be declined---Revisional jurisdiction could be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity---Plaintiffs failed to point out any such jurisdictional defect in the order assailed, warranting interference by High Court---Revision was dismissed in circumstances.

Syed Nazir Hussain Rizvi v. Zahoor Ahmad and another PLD 2005 SC 787; Azad Jammu and Kashmir Council through Secretary and 3 others v. Messrs Paidar Builders (Pvt.) Ltd. through Engineer, Chief Executive PLD 2010 HC (AJ&K) 12; Atlantic Steamers Supply Company v. Titisee and others PLD 1993 SC 88; Mst. Sardar Begum v. Malik Khalid Mahmood and others 1986 CLC 2342; Ehsanullah Afridi v. Province of Sindh and others 2009 YLR 321 and Mst. Wazir Begum v. Mst. Sardar Begum and 7 others 1979 CLC 72 ref.

Mian Muhammad Ismail Thahim for Petitioners.

Malik Muhammad Akram Awan for Respondents.

Date of hearing: 15th November, 2011.

2012 Y L R 986

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

MAQSOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.605 and Murder Reference No.463 of 2006, heard on 7th July, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Presence of eye-witnesses at the place of occurrence at the relevant time was highly doubtful---Dead body of deceased appeared to have been kept in cold storage and his post-mortem had been deferred till the arrival of the complainant and other eye-witnesses---Name of the accused was not mentioned in the injury statement---Site plans had been tampered with by rubbing the names and overwriting the dates---Place of occurrence shown in the site plan was different than the one given in the F.I.R.---Recovery of hatchet, weapon of offence, was also very doubt-ful---Either the prosecution witnesses had not seen the occurrence or the recovery had been planted against the accused---Prosecution, thus, had failed to prove its case against the accused beyond reasonable doubt---Accused was acquitted accordingly.

Haji Muhammad Tariq Aziz Kokhar for Appellant.

Rana Abdul Majeed, Addl: Prosecutor-General, for the State.

Ch. Bashir Ahmad Gujjar for the Complainant.

Date of hearing: 7th July, 2011.

2012 Y L R 1006

[Lahore]

Before Ch. Shahid Saeed, J

REHMAT ALI through L.Rs.---Petitioner

Versus

Mst. RASHEEDA BIBI and 4 others---Respondents

Civil Revision No.737 of 2003, decided on 8th September, 2011.

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

----Ss. 12 & 27(b)---Suit for specific performance of sale agreement---Plea of second vendee to be bona fide purchaser of suit-land---Proof---Second vendee as witness stated that he had asked the vendor about agreement in favour of plaintiff, over which vendor stated that such agreement was forged and fabricated---Validity---Vendor had not challenged the agreement in favour of plaintiff---Second vendee before entering into sale agreement was bound to satisfy himself about ownership of suit-land and ascertain whether vendor had alienated same to someone or not---Second vendee was, not a bona fide purchaser, in circumstances.

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

----S. 41---Khasra girdawri would not create any title.

(c) Witness---

----Plaintiff's witnesses though related inter se, but not having relationship with plaintiff---In absence of any malice on part of such witnesses their inter se relationship would not affect plaintiff's case and their veracity could not be doubted---Illustration.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had ample power to interfere with judgment of appellate court in case of an illegality, infirmity or misreading or non-reading of evidence.

Ch. Muhammad Zubair Rafique Warraich for Petitioner.

Muhammad Iqbal for Respondents Nos. 4 and 5.

Date of hearing: 8th September, 2011.

2012 Y L R 1013

[Lahore]

Before Rauf Ahmad Shaikh and Mazhar Iqbal Sidhu, JJ

WASEEM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1/B of 2011 in Criminal Appeal No.1168 of 2010, decided on 18th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Suspension of sentence on ground of statutory delay---Despite the expiry of more than two years appeal of accused had not been decided by High Court so far---Record did not present any antecedents of the accused of having been involved in any case of alike nature or of terrorism---No remarkable circumstance had been found to prevent the accused from seeking the relief prayed for---Statutory right had accrued in favour of accused and his case did not fall within any exceptional clause of S.426, Cr.P.C.---Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Rai Salah ud Din Kharal for Applicant.

Shahid Ali Shakir for the Complainant.

Arshad Mehmood, D.P.G. for the State.

2012 Y L R 1017

[Lahore]

Before Syed Iftikhar Hussain Shah, J

Mst. REHANA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 in Criminal Appeal No.917 of 2011, decided on 23rd December, 2011.

Criminal Procedure Code (V of 1898)---

---S. 426---Penal Code (XLV of 1860), S.302---Qatl-e-amd--- Application for suspension of sentence, dismissal of--- Mobile phone of deceased was recovered from the convict and dead body of deceased was recovered on his pointation---Convict along with her co-convict had abducted the deceased, robbed him and committed his murder---Trial Court had rightly come to the conclusion that charge against convict was proved and convicted and sentenced her---Presumption of innocence did not operate in favour of convict due to her conviction, therefore, no reason existed to suspend her sentence---Application for suspension of sentence was dismissed accordingly.

Nadeem Siddiqui for Petitioner.

Mirza Abid Majeed, D.P.G. for the State.

Haji Khalid Rehman for the Complainant.

2012 Y L R 1021

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD JAVED---Appellant

Versus

NISAR AHMED through L.Rs.---Respondent

Regular Second Appeal No.39 of 2001, heard on 31st October, 2011.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Gift---Proof---Exclusion of other legal heirs---House in question was owned by father of parties and after the death of their father, plaintiff sought recovery of possession of the house on the basis of a registered gift deed executed in his favour---Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court allowed the appeal and suit was dismissed---Validity---No witness deposed as to why gift was made in favour of plaintiff and donor used to live with him---No evidence was available about health of the donor till his death and types of special services rendered by the plaintiff---No reason was on record as to why other children were divested of their legitimate rights and were denied their rightful claim---Act of making a gift was a prerogative of an owner and it should not have been a covert exercise but an overt recital on the beat of a drum---Purported gift was brought in the notice of heirs after death of the donor which also cast doubt on the transaction---If such was intention of the donor, it would have seen the light of the day during his lifetime, so that the donor himself could have defended and endorsed execution of gift deed---Suit was brought after the death of the donor and averments of plaint were sufficient to hold that gift was kept secret and after the death of donor, suit was filed through which not only possession was claimed but mesne profits were claimed from the date of execution of purported gift deed, notwithstanding the fact that donor remained alive till year, 1983, whereas purported gift deed was got registered in year, 1980---No witness had uttered a single word about execution of the document in his presence---Even testimony of commission did not establish execution of purported gift as it was not found in evidence that donor had signed before him or he made any determination about gift---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Province of the Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554; Reham Ali and another v. Abdul and 3 others 1980 CLC 1110; Saida v. Pinnu and another PLD 1979 SC (AJ&K) 245; Mst. Sardaran Bibi v. Taj Din PLD 1993 Lah. 411; Khursheedul Islam v. Mrs. Qamar Jahan 1989 CLC 1467; Amirullah Khan and another v. Muhammad Akram 2004 YLR 709; Auqaf Department v. Javed Shuja and others 1995 CLC 1173; Hoshiar Ali v. Ghulam Sabir 1993 CLC 2476; Mst. Allah Jawai and others v. Maqbool Shah and others 2005 MLD 261; Barrister Ch. Muhammad Abdus Saleem and 4 others v. Mst. Tanveer Mirza and 3 others 1996 SCMR 351 and Province of the Punjab through Secretary, Irrigation and Power Department, P.W.D, Secretariat Old Anarkali Lahore and 3 others v. Ch. Mehraj Din and Co. through Proprietor 2003 CLC 504 distinguished.

Ch. Muhammad Arshad Bajwa for Appellant.

Khalid Aziz Malik for Respondent.

Date of hearing: 31st October, 2011.

2012 Y L R 1037

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.13683-B of 2011, decided on 16th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd---Bail, refusal of--Accused contended that his apprehension from the spot of occurrence was false; that he had been falsely involved in the case on account of suspicion and that he himself received injuries in the occurrence and while he had gone away for medical examination, cross firing took place between the parties in which deceased received fatal injuries and died of the same---Validity---Accused had been found nominated in the F.I.R. and he had caused fatal injury to the deceased---Accused was apprehended from the spot and question of mistaken identity did not arise in the case---Accused being charged of offence which fell within the prohibitory clause of S. 497 Cr.P.C. , his bail petition was dismissed.

Imran Malik for Petitioner.

Khalid Rehman for the Complainant.

Noor Ahmad Bhatti, DPP for the State.

2012 Y L R 1045

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD BAKHSH---Petitioner

Versus

GUL MUHAMMAD and another---Respondents

Civil Revision No.1650 of 2003, heard on 16th September, 2011.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Failure to make Talbs---Effect---Suit was concurrently been decreed by Trial court and Appellate Court---Plaintiffs and vendor, were real brothers and they lived in the same vicinity; it could not be believed that the plaintiffs remained unaware about the sale transaction, especially when the possession of the suit property was also delivered to the vendee---Pre-emption suit appeared to be an afterthought---Vendee/defendant being bona fide purchaser of suit property against consideration, could not be ousted, in the circumstances of the case, when there was contradiction in the statement of the informer and other witness in respect of making of Talbs---Pre-emption was a weak right and until and unless all the requirements of law had been fulfilled by the pre-emptor, the bona fide purchaser of suit property could not be ousted---In the present case pre-emptors had failed to perform the Talb-e-Muwathibat and the Talb-e-Ishhad as required under the law---Both courts below having committed misreading of evidence, impugned judgment and decrees could not sustain in the eye of law---High Court, in exercise of revisional jurisdiction, set aside concurrent judgment and decrees of the courts below.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court to interfere in concurrent findings of fact of courts below---It was contended that concurrent findings of fact could not be interfered with in the constitutional jurisdiction of High Court---Contention was misconceived as High Court had ample powers to interfere with the concurrent findings where there was misreading/non-appraisal of evidence apparent on the face of the judgment.

Allah Wasaya Malik for Petitioner.

Muhammad Sharif Chohan for Respondents.

Date of hearing: 16th September, 2011.

2012 Y L R 1053

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 16158-B of 2011, decided on 10th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit qatl-e-amd---Bail, grant of---Accused along with his co-accused and another unknown assailant allegedly entered the house of the complainant and made fire shot hitting the right leg of complainant's son---Motive behind occurrence was alleged abduction of complainant's daughter for which complainant had lodged F.I.R. but accused party had allegedly extended threats to complainant for pursuing the abduction case---Accused had been nominated in F.I.R. and injury had been attributed to him but nevertheless said injury was not on the vital part of injured's body---Accused was alleged to have made a single fire shot and omission to repeat fire shots reflected upon intention of accused and as such question of applicability of S. 324 P.P.C , could only be adjudicated at the time of trial---Accused was in judicial lockup for more than one year and his trial had not been concluded---Accused was admitted to bail, in circumstances.

Haji Khalid Rehman for Petitioner.

Messrs Mian Shahid Rasool and Rana Muhammad Arshad for the Complainant.

Mian Muhammad Awais Mazhar, D.P.-G. for the State.

Muhammad Anwar S.-I. with record.

2012 Y L R 1057

[Lahore]

Before Nasir Saeed Sheikh, J

ISLAMIC REPUBLIC OF PAKISTAN and others---Appellants

Versus

Messrs M. FAHEEM HAIDER AND COMPANY through Chief Executive, Okara---Respondent

R.S.A. No.88 of 2004, decided on 15th December, 2011.

Civil Procedure Code (V of 1908)---

----O.VII, R.2 Ss.96 & 100---Appellate Court---Jurisdiction of---Suit for recovery of money---Scope---Trial Court dismissed suit and First Appellate Court set aside order of Trial Court and decreed the suit in favour of respondents---Appellant contended that it was obligatory for Appellate Court to have discussed the entire evidence produced by the parties, whereas it only referred to one document---Contention of respondent was that said document was the only relevant document that had been discussed by the Appellate Court---Validity---Perusal of record revealed that the Appellate Court discussed the contents of the written statement and one document only whereas it was a matter of record that witnesses and other documents had been produced by the parties at the Trial Court---Right of appeal against judgment and decree of civil court was a statutory right and litigants had a legal right to claim the decision of the appeal in accordance with the law after discussing of the evidence produced by the parties by the first Appellate Court---First Appellate Court had not complied with these requirements of the law---Manner in which first Appellate Court accepted the appeal of the respondent resulted into miscarriage of justice and therefore, same was not sustainable in the eye of law---Judgment and decree of Appellate Court were set aside and matter was remanded to the Appellate Court---Appeal was allowed, accordingly.

Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 rel.

Azar Latif Khan, Deputy Attorney General for Petitioner.

Riaz Karim Qureshi for Respondent.

2012 Y L R 1067

[Lahore]

Before Manzoor Ahmad Malik and Altaf Ibrahim Qureshi, JJ

ABDUL LATIF---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.336 of 2003/BWP, heard on 11th October, 2011.

Penal Code (XLV of 1860)---

----Ss.302(b) & 377---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd and commission of sodomy---Appeal against acquittal---No allegation of sodomy against accused---Allegation against accused was that of his mere presence at the place of occurrence---Even otherwise, it did not appeal to common sense that accused who was brother-in-law of other accused, would jointly commit the act of sodomy or murder---Every person, initially was presumed to be innocent, unless proved guilty; and when he was found otherwise and was acquitted of the charge, then he was presumed innocent two times---No ground was available for interference in the verdict of acquittal as the same was neither perverse nor capricious.

Latif-ur-Rehman for Appellant.

Jam Nazir Ahmad Ghazali and Sardar Zafar Iqbal Khan Respondents.

Muhammad Ali Shahaab, Deputy Prosecutor General for the State.

Date of hearing: 11th October, 2011.

2012 Y L R 1073

[Lahore]

Before Nasir Saeed Sheikh, J

Mst. NOOR BEGUM and others---Petitioners

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Revision No.3359 and C.M. No. 2-C of 2011, decided on 15th November, 2011.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Additional evidence, production of---Principle---Petitioners, during pendency of appeal before Lower Appellate Court, sought permission to file additional evidence, which application was dismissed---Validity---For the purpose of invoking provisions of O.XLI, R.27 C.P.C., it was for the Lower Appellate Court to come to the conclusion that appeal before it could not be decided on the basis of available record and additional evidence was needed by the court itself---High Court, in exercise of revisional jurisdiction, declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Bashir Ahmad v. Ahmad-ul-Haq Siddiqui 1985 SCMR 1232 rel.

Sh. Irfan Akram for Petitioners.

2012 Y L R 1088

[Lahore]

Before Sardar Tariq Masood, J

MUBEEN NAWAZ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.16061-B of 2011, decided on 14th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 34 & 201---Qatl-e-amd and causing disappearance of evidence of offence---Bail, grant of---Further inquiry--No role was attributed to accused in the F.I.R., and he was not even shown to be armed with any weapon, due to which case of accused called for further inquiry falling under subsection (2) of S.497, Cr.P.C.---Police had deleted offence under S.34, P.P.C. and added S.201, P.P.C. against accused which was bailable---Opinion of the Police, though was not binding on the court, but while dealing with the bail petitions, such opinion had some persuasive value---Nothing was recovered from accused during investigation; and his person was no more required by the Police for the purpose of investigation---Further incarceration of accused in jail would not serve any useful purpose---Accused was enlarged on bail, in circumstances.

Muhammad Shaoib Khokhar for Petitioner.

Ch. Karamat Ali, DPP with Javaid A.S.-I. for Respondent.

Naseer-ud-Din Nayyar for the Complainant.

2012 Y L R 1101

[Lahore]

Before Shahid Hameed Dar, J

MUSHTAQ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.15192/B of 2011, decided on 25th November, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused along with his co-accused, armed with .12 bore gun, allegedly fired at the time of occurrence and committed the murder of the deceased---Accused had also been burdened with the liability of having raised 'Lalkara' and his fire shot allegedly landed at the middle finger of the left hand of the deceased---Accused raised the plea of alibi and produced witnesses in support thereof and his plea was verified by the Investigating Officer during the course of investigation---Accused also underwent physical remand for thirteen days, but this time period remained unproductive for the prosecution---Investigating Officer after having extensively investigated the case had opined that accused had not taken part in the incident and he was not responsible for the alleged occurrence in any manner---Name of accused had been placed in column No.2 of the report under section 173, Cr.P.C and a discharge report in respect of accused was also prepared by the Investigating Officer---Postmortem examination report of the deceased revealed a fire arm entry wound on the back of the left hand at the root of the middle finger which fractured the underlying bone---Accused was armed with a .12-bore gun, which was a soft bore weapon and causes dispersal of multiple spherical lead pellets and as such it may not be possible for the human eye to visualize the landing of multiple pellets of .12-bore, on the body of a human being with exactitude--- Probability of a pellet landing at the back of the left hand of deceased of a fire shot made by the co-accused could not be ruled out---Sufficient reasons existed to believe the case of accused was that of further probe into his guilt within the meaning of section 497(2) Cr.P.C---Accused's bail application was allowed and he was released on post-arrest bail.

Anwar Shamim and another v. The State 2010 SCMR 1791 and Muhammad Arshad and others v. The State and others PLD 2011 SC 350 distinguished.

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

----S. 173---Report of police-officer---Effect---Opinion of the Investigating Officer does not have binding effect on the court and it becomes not only irrelevant but also inadmissible in evidence at trial.

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

----Ss. 497 & 173---Bail---Report of police-officer---Reasonableness or the persuasiveness of police opinion can be glanced at while adjudicating upon the bail plea of an accused by tentatively assessing the worth thereof.

Hafiz Khalil Ahmad for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab.

Mushtaq Ahmad Mohal for the Complainant.

Muhammad Nawaz S.I. with record.

2012 Y L R 1110

[Lahore]

Before Shahid Hameed Dar, J

MUMTAZ IMTIAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.16119-B of 2011, decided on 22nd December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392 & 411---Robbery, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused despite being well-known to the complainant side had not been nominated as an accused at the time of reporting the crime to the police---Accused underwent maximum period of physical remand, permissible under law but said period remained unproductive for the prosecution---Heinousness of the offence could not be deemed to be a ground to decline the right of an accused to be granted bail if his case was covered by section 497(2), Cr.P.C.---Case of accused falling within purview of section 497(2), Cr.P.C, he was admitted to bail.

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

----S. 497(2)---Bail---Further inquiry---Heinousness of offence, effect of---Heinousness of the offence could not be deemed to be a ground to decline the right of an accused to be granted bail if his case was covered by S. 497(2), Cr.P.C.

Malik Matee Ullah and Shahid Azeem for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General for the State.

Mian Ghulam Rasool for the Complainant.

Muhammad Anwar S.I. with Record.

2012 Y L R 1119

[Lahore]

Before Amin-ud-Din Khan, J

WASIQAN BEGUM---Petitioner

Versus

Syed KHURSHID AHMAD SHAH and others---Respondents

Civil Revision No.435-D of 1995/BWP, heard on 13th June, 2011.

Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Plaintiff had challenged mutation of suit land sanctioned in favour of the defendants---Suit of plaintiff was decreed by Trial Court and Appellate Court affirmed said decree of Trial Court---Validity---Plaintiff had failed to show as to how the name of his mother came in the Jamabandi without any backing of law or any relevant document---Plaintiff had failed to prove the fact that plaintiff's mother was owner to the extent of one-third share in the suit land---Plaintiff, it seemed, in connivance with Revenue Officials had filed the suit for declaration in order to perpetuate illegalities---Plaintiff was bound to prove his case on the basis of clear unrebutted evidence, but he failed to do so---Evidence produced by the defendants clearly proved their stand---Plaintiff had failed to establish the date of death of the predecessors-in-interest of the suit land---Courts below had ignored or misinterpreted important documentary evidence, and reached to a wrong conclusion---Plaintiff was present at the time of the sanctioning of the mutation dated 8-4-1967 and filing of year 1990, was clearly time-barred---High Court set aside concurrent findings of the courts below, and dismissed the suit of the plaintiff---Revision was accepted, accordingly.

Aejaz Ahmad Ansari for Petitioner.

Rehan Malik for Respondents.

Date of hearing: 13th June, 2011.

2012 YLR 1122

[Lahore]

Before Abdul Waheed Khan, J

ZAHID MASOOD---Petitioner

Versus

MUHAMMAD IJAZ and 2 others---Respondents

Writ Petition No.19594 of 2011, decided on 9th February, 2012.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Expiry of lease period, ground of---Leave to contest ejectment petition---Order of Special Judge (Rent) refusing to grant such leave upheld by Appellate Authority---Tenant's plea that after expiry of first written tenancy for 11 months, period of tenancy was extended from time to time at enhanced rate of rent, but landlord had not specified period of each extension of tenancy; and that in case of tenancy-at-will, landlord could not demand payment of rent, but could claim compensation for use and occupation of demised premises---Validity---Tenant, in leave application, had claimed to have paid to landlord a huge amount as Pagri, whereas neither rent deed found mention thereof nor any material in support thereof was brought on record---Tenant had introduced a new case before High Court as he had not raised such pleas in leave application or memo of appeal---High Court dismissed constitutional petition, in circumstances.

Saleem Anwar Khan for Petitioner.

Tariq Mahmood Ansari for Respondents.

2012 Y L R 1129

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD BOOTA and others---Appellants

Versus

KHURSHID AKHTAR and others---Respondents

R.S.A. No.19 of 2003, decided on 20th September, 2011.

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

----Ss. 12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance of agreement to sell---Bona fide purchaser for valuable consideration without knowledge---Agreement to sell---Proof---Plaintiffs sought specific performance of agreement to sell in their favour, executed prior to registration of sale deed in favour of defendants---Plea raised by defendants was that they were bona fide purchasers for valuable consideration without knowledge of any agreement in favour of plaintiffs---Trial Court dismissed the suit as plaintiffs failed to produce two witnesses to prove execution of agreement to sell but Lower Appellate Court decreed the suit in favour of plaintiffs---Validity---If document was required by law to be attested, it should not be used as evidence until two attesting witnesses were called for the purpose of proving its execution---Agreement to sell was compulsorily required by law to be attested by two witnesses but plaintiffs failed to fulfil the basic requirement of Art. 79 of Qanun-e-Shahadat, 1984---Defendants were bona fide purchasers of the property in question and they had no knowledge about execution of agreement to sell in favour of plaintiffs prior to registered sale-deed in their favour---Consideration amount was also proved to be paid to defendants and there was no evidence on record to the effect that defendants had the knowledge of execution of agreement to sell in favour of plaintiffs---Lower Appellate Court committed illegality and material irregularity while passing judgment and decree which had no bearing in the eyes of law---High Court, in exercise of appellate jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed in circumstances.

Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623 and Muhammad Afzal v. Muhammad Ayub and others 2003 SCMR 961 rel.

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

----S. 42---Mutation--- Attestation--- Mutation cannot be attested simply on the basis of an agreement---Mutation can be attested either on the basis of a registered deed or on the basis of a decree of a court.

Ch. Muhammad Anwar Bhindar for Appellants.

Muhammad Aslam Khan Buttar and Mian Sarfraz-ul-Hasan for Respondents.

Date of hearing: 12th September, 2011.

2012 Y L R 1136

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD ISMAIL---Petitioner

Versus

SUI NORTHERN GASS PIPE LINES LTD. through General Manager---Respondent

Civil Revision No.3646 of 2011, decided on 7th February, 2012.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877) Ss. 42 & 54---Suit for declaration and perpetual injunction---Temporary injunction, grant of---Plaintiff moved application for restraining defen-dant Gas Company from disconnecting gas supply for non-payment of bill that had been levied on the plaintiff for alleged tampering of gas meter---Said application was dismissed by Appellate Court---Validity---Keeping in view the divergent stance of parties, a serious question of fact had to be adjudicated upon by the Trial Court, as such, the plaintiff had a prima facie case---High Court, while accepting the plaintiff's prayer for grant of temporary injunction, directed the plaintiff to furnish bank guarantee to the extent of the outstanding amount---Revision was disposed of, accordingly.

Nasir Glass Factory v. S.N.G.P.L. 2007 YLR 217 and S.B. Industries Pak. Ltd. v. Sui Northeren Gas PLD 1995 Lah. 117 ref.

Muhammad Shafique Malik for Petitioner.

Umar Sharif for Respondent.

2012 Y L R 1143

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

JAVED ROBERT and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.16625-B of 2011, decide don 24th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Drugs Act (XXXI of 1976), Ss.23/27---Import, manufacture and sale of drug---Bail, refusal of---Accused had been arrested red handed at the time of raid being busy in preparing spurious and substandard medicines and packing them in the drug manufacturing factory, owner of which had managed to escape---Medicines of 26 categories along with sealing machine and packing material, were recovered from the spot---Accused had failed to submit their explanation in response to the notice served upon them by Drug Inspector---Samples of the recovered medicines were found to be substandard and spurious by the Government Analyst Testing Laboratory---Accused were involved in the heinous offence of preparing spurious medicines and were the worst offenders against the society and they did not deserve any leniency---Bail was refused to accused accordingly.

2005 MLD 1366; 2002 YLR 1612 and 1991 PCr.LJ Note 278 distinguished.

2007 MLD 188 and 1986 MLD 1691 ref.

Malik Muhammad Jamil Awan for Petitioner.

Tariq Javed, D.P.-G. with Shahnawaz Khan, Inspector and Azhar Jamal Saleemi Drug Inspector for Respondents.

2012 Y L R 1152

[Lahore]

Before Sardar Tariq Masood and Syed Iftikhar Hussain Shah, JJ

AZMAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1416 and 1534 and Murder Reference No.611 of 2006, decided on 21st November, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Eye-witnesses had made improvements and alterations in their statements during trial, particularly on the material point of presence of complainant at the scene of occurrence---Such deliberate and dishonest improvements had cast serious doubt on the veracity of ocular witnesses---F.I.R. had been lodged after due deliberation and consultation---No recovery of crime empty having been made from the spot, recovery of pistol from accused had not advanced the prosecution case---Report of Forensic Science Laboratory about the pistol being in working condition, was inconsequential---Motive for occurrence was not sufficiently established---Medical evidence could not connect the accused with the commission of crime---Single instance causing reasonable doubt in the mind of the court would entitle the accused to the benefit of doubt, not as a matter of grace but as a matter of right---Accused were acquitted in circumstances.

Israr Ali v. The State 2007 SCMR 525; Muhammad Akram v. The State 2009 SCMR 230; Tariq pervez v. The State 1995 SCMR 1345 and Muhammad Luqman v. The State PLD 1970 SC 10 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Improvements by witness---Effect---Improvements once found deliberate and dishonest, cast serious doubt on the veracity of eye-witnesses.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence---Value---Medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon of offence, duration between the injury and the death, but it cannot connect the accused with the commission of the crime.

Israr Ali v. The State 2007 SCMR 525 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Single instance causing a reasonable doubt in the mind of the court entitles the accused to the benefit of doubt, not as a matter of grace, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Conviction of accused---Principle---Finding as regards guilt of accused should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence---Mere conjectures and probabilities cannot take the place of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 ref.

Talish Umar Ch. And Malik Ejaz Ahmad Phularwan for Appellants.

Tariq Javed, D.D.P.P. for the State.

Kh. Akhtar Hussain Bhatti for the Complainant.

Date of hearing: 21st November, 2011.

2012 Y L R 1166

[Lahore]

Before Sagheer Ahmad Qadri, J

GHULAM YOUSAF and 5 others---Petitioners

Versus

MUHAMMAD SHOAIB and another---Respondents

Civil Revision No.1606 of 2004, heard on 11th October, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, per-formance of---Plaintiffs' plea in plaint that he came to know about suit sale on 13-3-1996 in the afternoon at the house of second plaintiff through informer "G" and pronounced there intention to pre-empt sale---Proof---Statement of second plaintiff in court to the effect that he came to know about suit sale on 13th date without disclosing its month and year---Informer as witness stated that he had informed plaintiffs about sale about 4 years and 6 1/2 months back---Witness of notice Talb-e-Ishhad in court stated that 4 years and 6 1/2 months had elapsed between his statement and issuance of such notice---Validity---Performance of Talbs was "sine qua non" for exercising right of pre-emption---Plaintiff had failed to prove such performance by leading cogent, unambiguous and unimpeachable evidence---Suit was dismissed, in circum-stances.

Mian Peer Muhammad and others v. Faqir Muhammad PLD 2007 SC 302 and Muhammad Yousaf v. Muhammad Rafique and others PLD 2006 Lah. 39 rel.

Ashfaq Qayyum Cheema for Petitioners.

Khalid Mian for Respondents.

Date of hearing: 11th October, 2011.

2012 Y L R 1187

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD UMAR TARAR---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Law and Parliamentary Affairs and others---Respondents

Writ Petition No.20497 of 2011, decided on 24th November, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199--- Constitutional petition-Registration of F.I.R.---Complainant petitioner being distressed by the torture and ignominy at the hands of the respondent S.H.O. had moved an application under Ss.22-A & 22-B, Cr.P.C., before the Ex-Officio Justice of Peace for registration of case against him, who without deciding that whether prima facie a cognizable case was made out or not, mechanically directed the petitioner to approach the S.H.O. concerned for recording his statement under S.154, Cr.P.C.---Ex-Officio Justice of Peace had left the controversy to the judgment of the S.H.O. to decide as to what was in accordance with law and the S.H.O. against whom the application was made decided the said controversy against the petitioner---Validity---Justice of Peace should have minutely examined the petition in order to find out if a cognizable case was made out and then to pass order for registration of case---Such process would curtail the discretion of the Police Officer and facilitate the process for the registration of case and would also definitely diminish the agony of the aggrieved persons---Impugned order of Justice of Peace was set aside with the direction that he himself should ascertain as to whether any cognizable offence was made out or not and then to decide the application of the petitioner afresh strictly in accordance with law---Constitutional petition was allowed accordingly.

Muhammad Asad Manzoor Butt for Petitioner.

Rana Javed Iqbal for Respondents.

Ch. Maqsood-ul-Hassan, Asstt. A.G. along with Riaz-ud-Din Inspector and Amjad, S.I. for Respondents.

2012 Y L R 1192

[Lahore]

Before Muhammad Qasim Khan, J

ABDUL RAZZAQ---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Revision No.90 of 2010, decided on 2nd December, 2010.

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

---Ss.540 & 94---Power to summon material witness or examine persons present---Production of further evidence, application for--- Applicant/complainant filed application under S.540, Cr.P.C. read with S.94, Cr.P.C for production of certain documents, which application was dismissed by the Trial Court---Complainant's contention was that said documents were very essential and necessary for just decision of the case and Trial Court had not properly exercised jurisdiction vested in it and dismissed the application on grounds which were not available---Validity---Documents required to be exhibited were prima facie important to establish as to which of the party was in possession of the land at the relevant time, where occurrence took place and the Trial Court was not justified in observing that complainant wanted to fill up the lacunae or flaws of the ocular account, especially when there was no embargo with regard to limitation and such jurisdiction could be exercised at any stage---Only examination-in-chief of three witnesses had been recorded, and they were yet to be cross-examined and the entire evidence was yet to be produced, hence, it could not be said that the documents would prejudice the rights of the accused/respondent---Said documents were essential for just decision of the case, therefore, Trial Court had passed its order without applying the law in its true perspective---Impugned order was consequently set aside with the direction to Trial Court to allow the complainant to produce documents during trial in accordance with law---Revision petition was allowed accordingly.

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

----Ss.540---Power to summon material witness or examine persons present---Scope---Section 540, Cr.P.C. gave wide powers to the court and main ingredient under the section was that whether the piece of evidence, which any party wanted to produce before the court, was essential to the just decision of the case or not---Section 540, Cr.P.C. enabled the court to examine any evidence at any stage of the proceedings which was deemed essential by the court for just decision of the case.

Zahid-ur-Rehman Tayib for Petitioner.

Muhammad Umair Mohsin for Respondents.

Muhammad Ali Shahab, D.P.-G. for the State.

2012 Y L R 1204

[Lahore]

Before Mazhar Iqbal Sidhu, J

AZHAR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.13668-B of 2011, decided on 15th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused along with his co-accused was alleged to have murdered the deceased on account of a dispute regarding the sale of a vehicle---No specific injury had been attributed to the accused in the F.I.R.---Accused was brother of an accomplice, to whom the alleged motive had been attributed---Accused was found innocent by the police and his name was placed in Column No.2 of the report under S. 173, Cr.P.C---Facts and circumstances, prima facie, made out a case for further probe into accused's involvement in the offence and he was allowed bail on the basis of doctrine of further inquiry.

Imran Humayun Cheema for Petitioners.

Rana Zulfiqar Ali Khan for the Complainant.

Mr. Noor Ahmad Bhatti, DPP for the State.

2012 Y L R 1214

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD RIAZ---Petitioner

Versus

Mst. TAHIRA PARVEEN and others---Respondents

Writ Petition No.13224 of 2011, decided on 2nd February, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 17-A, 5 & Sch.----Civil Procedure Code (V of 1908), S. 2(2)----Constitution of Pakistan, Art. 199---Constitutional Petition---Decree---Definition---Suit for recovery of maintenance allowance of minors and dower---Interim order for maintenance and striking off defence---Jurisdiction of Family Court, exercise of---Family Court struck off defence of husband (petitioner) to the extent of maintenance allowance of minors on his failure to pay the interim maintenance allowance to minors fixed by the Family Court----Family Court decreed the suit for recovery of maintenance allowance for minors----Validity---Family Court had jurisdiction under S.17-A of the West Pakistan Family Courts Act, 1964 to decree the case on the failure of the husband to provide interim maintenance allowance---Term "decree" was not defined in the West Pakistan Family Courts Act, 1964 and definition for the same was given in S.2(2) of the C.P.C. as a "formal expression of an adjudication, which, so far as regards to the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in the suit and may be either preliminary or final [..]."-----Word "adjudication" referred to a judicial determination of a matter in controversy, dispelling the impression of arbitrariness---Impugned order of the Family Court was lacking in such judicial determination of the matter in controversy---High Court set aside impugned order of Family Court and case was remanded to Family Court with the direction to the Family Court to consider the financial condition of the husband---Constitutional petition was allowed, accordingly.

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

----S. 2(2)---"Adjudication", meaning of---Connotation---"Adjudication" referred to a judicial determination of a matter in controversy, dispelling the impression of arbitrariness.

Muhammad Amir Malik for Petitioner.

Muhammad Sarwar Qamar, for Respondents Nos.1 to 3.

2012 Y L R 1233

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD SHAUKAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.11316-B of 2011, decided on 22nd September, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/ 109/ 148/ 149--- Qatl-e-amd, abetment, rioting---Bail, grant of---Further inquiry---Accused was not present at the scene of occurrence---No overt act had been attributed to accused except that of being conspirator of the occurrence---Parties were inimical to each other---Trend had developed in the society to widen the net in order to involve the whole family by attributing different roles like "Lalkara", Japha, ineffective firing and abetment---Question of abetment would only be thrashed out after recording evidence during trial---Bail could not be withheld as a matter of punishment, when otherwise accused deserved bail on the ground of his case being one of further inquiry---Role assigned to accused was of mere abettor---Accused was behind the bars for the last four months and he was not required for further investigation---Accused was admitted to bail in circumstances.

Ghulam Murtaza v. The State 2003 YLR 3255; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and an unreported judgment passed by this Court in Criminal Miscellaneous No.8292-B of 2011 ref.

Asghar Ali Gill for Petitioner.

Messrs Rana Zulfiqar Ali Khan and Muhammad Aslam Sheikh for the Complainant.

Mirza Abid Majeed D.P.-G. along with Muhammad Aslam A.S.-I.

2012 Y L R 1241

[Lahore]

Before Mehmood Maqbool Bajwa, J

Messrs PAK ASIA CNG-2, Filing Station through Ahmad Dawood Sole Proprietor---Petitioner

Versus

SNGP LINES through Managing Director and 3 others---Respondents

Civil Revision No.148 of 2012, decided on 24th January, 2012.

Civil Procedure Code (V of 1908)---

----S.115 & O.XXXIX Rr. 1 & 2---Revision--- Scope--- Revision assailing legality of ad interim order---Maintain-ability---Petitioner had questioned the legality of an ad interim order under the revisional jurisdiction of High Court, which could not be said to be a "case decided" within the meaning of S. 115, C.P.C.---Revision was dismissed.

Lake Filling Station and C.N.G. Station through proprietor v. Divisional Manager, Messrs Pakistan State Oil Company Ltd. and 5 others 2005 YLR 3033 fol.

Syed Muhammad Shah for Petitioner.

Umar Sharif for Respondents Nos.1 to 3.

Muhammad Imran for Respondent No.4.

2012 Y L R 1246

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

KASHIF MANZOOR and 3 others---Petitioners

Versus

ABDUL MAJEED---Respondent

Civil Revision No.567 of 2009, heard on 4th June, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 149---Court Fees Act (VII of 1870), S. 7(vi)---Suit for possession through pre-emption---Rejection of plaint on failure of plaintiff to affix court-fee---Defendant assailed order of Appellate Court whereby Appellate Court set aside order of Trial Court rejecting the plaintiff's suit on the ground of non-payment of court-fee---Appellate Court had found that the plaintiff had deposited the requisite amount in the Treasury for issuance of the court-fee before the target date set by Trial Court and non-providing of stamp paper to the plaintiff was not the plaintiff's fault---Validity---Perusal of record showed that the order for payment of court-fee by Trial Court was passed by it without ascertaining the value of the suit and proceeds of the suit---Plaintiff had affixed the value of the suit for the purposes of the court-fee and jurisdiction---Court-fee in a suit for pre-emption, was payable according the proceeds of the land---Appellate Court had considered such aspect of the case and in its impugned order had directed the Trial Court to ascertain the value of the actual court-fee payable---Order of Trial Court was passed without going through the contents of the plaintiff's plaint, as well as without calculating the proceeds from the suit land---Appellate Court had rightly come to the conclusion that the amount of court-fee was deposited by the plaintiff and stamp papers were not issued to the plaintiff by the Treasury, as such plaintiff was not at fault---Said order of Appellate Court was in accordance with law and did not suffer from any misreading or non-reading and non-exercise of jurisdiction---Revision was dismissed.

Khan Muhammad v. Barkat Ali and another 19884 CLC 582; Riffat Iqbal v. Mst. Fatima Bibi 2007 SCMR 494 and Riffat Iqbal v. Addl. District Judge Mandi Bahauddin and 4 others 2007 YLR 1319 distinguished.

Aamir Majeed Rana for Petitioner.

Muhammad Saleem Shahnazai for Respondent.

Date of hearing: 4th June, 2010.

2012 Y L R 1257

[Lahore]

Before Nasir Saeed Sheikh, J

ZIA-UR-REHMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, Shakargarh and 5 others---Respondents

Writ Petition No.17829 of 2011, decided on 6th September, 2011.

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

----S.42---Transfer of Property Act (IV of 1882), S.52---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration---Transfer of suit property by vendee after passing of status quo order in such suit, though both vendee and subsequent vendee not party therein---Application by subsequent vendee under O.I, R.10, C.P.C. for his impleadment as party in suit---Validity---Plaintiff in his reply to such application had admitted that applicant had forcibly obtained possession of suit property---Applicant was admittedly in possession of suit property---Application under O.I., R.10, C.P.C. was accepted in circumstances.

Rashid Ahmad v. Mst. Jiwan and others 1997 SCMR 171; Fazal Karim through Legal heirs and others v. Muhammad Afzal through Legal Heirs and others PLD 2003 SC 818 and PLD 2001 SC 449 rel.

PLD 2002 SC 303; PLD 2003 SC 818; 2007 SCMR 1872; 2008 SCMR 1024; PLD 2009 SC 419; 2010 CLC 273 and PLD 2011 Lah. 437 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Discretionary orders of subordinate courts---High Court would not interfere with such orders unless same to be fanciful, arbitrary or perverse.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749 and Muslim Commercial Bank Ltd. v. Judge Banking Court No.2, Faisalabad and 8 others 2002 CLD 991 rel.

Taqi Ahmad Khan for Petitioner.

2012 Y L R 1262

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, J

WAZIR AHMED and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2752-B of 2011/BWP, decided on 28th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498 & 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Ad interim pre-arrest bail , confirmation of---Further inquiry---Only allegation brought against accused revolved around spy information allegedly provided to the complainant (police official)---Contents of F.I.R. revealed an unusually detailed and precise tip-off, which could hardly be considered as an admissible piece of evidence---Prosecution witnesses did not say any word in their statements under S. 161, Cr.P.C about the fact of receipt of spy information, in terms mentioned by the complainant, nor they mentioned anything about the culpability of the accused in any manner---Previous F.I.R. had been registered at the instance of a widow (sister-in-law of one of the accused) , which contained allegations against police officials of the same police station where present F.I.R. had been lodged---Accused were closely related to the husband of the said widow, and in the backdrop of previous grudge between accused and police officials, false implication of accused in the present case could not be ruled out---Prosecution had contended that accused were involved in cases of similar nature in the past, but failed to point out any viable connecting evidence against the accused with respect to the present case---Case of accused constituted need for further inquiry into their guilt as contemplated under S. 497(2), Cr.P.C---Bail application of accused was allowed and pre-arrest bail granted to them was confirmed.

Malik Muhammad Aslam, Kh. Muhammad Aslam and Muhammad Aslam Khan Dhukar for Petitioners.

Muhammad Ali Shahab, Deputy Prosecutor-General, Punjab for Respondents.

2012 Y L R 1270

[Lahore]

Before Muhammad Anwaarul Haq, J

ABDUL REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.17424-B of 2011, decided on 19th January, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Accused was nominated in the F.I.R. but there was no evidence connecting him with the alleged crime---Dead body of the deceased was found lying in the house of the co-accused and nothing regarding involvement of the accused was mentioned---Accused remained in physical custody of the police for fourteen days but nothing was recovered from him---Contention of complainant regarding previous enmity between the parties was a double edged weapon, which could be the reason for the murder of the deceased and at the same time could also be the cause for false implication of the accused in the case---Case against accused fell within the purview of S. 497(2), Cr.P.C and was one of further inquiry---Bail application of accused was accepted and he was released on bail.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Motive for implication of accused---Previous enmity---Scope---Motive in the shape of previous enmity was a double edged weapon, if, prima facie, it could be the reason for the murder of the deceased, it could also be the cause for false implication of the accused in the case.

Muhammad Ahsan Nizami for Petitioner.

Ch. Muhammad Akram Tahir, DDPP for the State with Intezar Hussain A.S.-I.

Rana Imtiaz Hussain Advocate for the Complainant.

2012 Y L R 1288

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD WARIS---Petitioner

Versus

D.P.O. and others---Respondents

Writ Petition No.4383 of 2012, decided on 24th February, 2012.

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

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan, Art 199---Constitutional petition---Dishonestly issuing cheque---Registration of F.I.R.---Accused (respondent) had allegedly borrowed money from the complainant (petitioner), but refused to return the same---Punchayat was constituted to resolve the controversy between the parties and complainant and accused, both handed over blank cheques to the arbitrator---Arbitrator could not resolve the matter between the parties and handing over of cheques as security was recorded in the register of petition writer---Contention of complainant that accused violated the terms of entry made in the register and refused to return the borrowed amount and instead lodged an F.I.R. against the complainant on basis of cheque submitted to the arbitrator, which was dishonored on presentation---Application of complainant for registration of case against accused submitted before Justice of Peace was declined on the grounds that complainant himself was facing a case regarding dishonouring of cheque---Validity---Station House Officer (S.H.O.) was bound to perform his duties in accordance with law and when any matter regarding commission of cognizable offence was reported to him, he had to register the F.I.R. in terms of S. 154, Cr.P.C, but the condition precedent was that commission of a cognizable offence be reported or statement made by informant should be in respect of a cognizable offence---In the present case, application filed by complainant before S.H.O. did not disclose any commission of cognizable offence---Complainant had delivered the cheque as a security to the arbitrator appointed by both the parties with their free-will and cheque was not issued for any consideration either by the complainant or the accused, therefore, it could not be said that cheque was issued by the opposite party for consideration or with dishonest intention---Order passed by Justice of Peace did not suffer from any legal infirmity---Constitutional petition was dismissed.

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

----S. 154---Information in cognizable cases---Scope---Station House Officer (S.H.O.) was bound to perform his duties in accordance with law and when any matter regarding commission of cognizable offence was reported to him, he had to register the F.I.R. in terms of S. 154, Cr.P.C, but the condition precedent was that commission of a cognizable offence should be reported or statement made by informant should be in respect of a cognizable offence.

Rana Nadeem Ahmad for Petitioner.

2012 Y L R 1296

[Lahore]

Before Malik Shahzad Ahmad Khan, J

UMAR HAYAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.12129-B of 2011, decided on 27th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 380/411/457--- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14---Theft in dwelling house, dishonestly receiving stolen property, lurking house-trespass or house-breaking by night, theft liable to Tazir---Ad interim pre-arrest bail, recalling of---Accused was named in FIR and allegation of commission of theft of different articles from the house of complainant had been levelled against the accused---Statements of two prosecution witnesses had been recorded under section 161, Cr.P.C., according to which accused had confessed his guilt regarding commission of theft in the house of the complainant---Articles stolen were yet to be recovered from the accused and he could not establish any mala fide on the part of the complainant for his false involvement in the case, which was a condition precedent for the grant of bail before arrest---Bail petition of accused was dismissed and ad interim pre arrest-bail granted to him was recalled.

Malik Muhammad Imtiaz Mahl for Petitioner.

Arshad Mahmood, Deputy Prosecutor-General for the State with Fida Hussain A.S.-I.

Muhammad Tariq (complainant) present in person.

2012 Y L R 1304

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

RIAZ alias RAJOO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.14508-B of 2011, decided on 11th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Accused along with his co-accused allegedly attacked upon the complainant party and fire shot made by accused landed on the shin of the injured's left leg---Accused had earlier sought post-arrest bail from High Court which was dismissed as withdrawn with the direction to Trial Court to conclude trial within two months---Accused subsequently approached the High court again for post-arrest bail which was disposed of with the direction to Trial Court to conclude trial within one month---Order sheet of the case reflected that after disposal of second bail application, not a single witness had been recorded despite the fact that Trial Court had adopted all coercive measures for procuring the attendance of the prosecution witnesses including issuance of their non-bailable warrants---Accused had fired upon non vital part of the injured's body and his challan had been submitted and trial had commenced, therefore, no useful purpose would have been served by keeping him in custody---Sufficient grounds existed to admit accused to post-arrest bail---Accused was released on bail accordingly.

Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Ashok v. The State 1997 SCMR 436 and Muhammad Umar v. The State and another PLD 2004 SC 477 rel.

Syed Muhammad Shah for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor-General Punjab for Respondent.

Ghulam Rasool, S.I. with the Police Record.

2012 Y L R 1309

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD MURRAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.623-B of 2011, decided on 13th July, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/337-F(i)/337-A(i)/34---Qatl-e-amd--Bail, grant of---Further inquiry---Accused was not connected with the motive part of the prosecution story, rather motive was attributed to co-accused---Accused was not stated to have caused any injury to the deceased---According to F.I.R. accused had caused hatchet blows to a prosecution witness, which were found simple in nature by the Doctor---Vicarious liability of accused with his co-accused could not be looked into at bail stage---Accused was behind the bars for the last nine months---Abscondence of accused for more than three years was not a valid ground for refusing bail, as case of accused had come within the purview of further inquiry---Accused was admitted to bail in circumstances.

Mumtaz Ali v. The State PLD 2007 Kar. 127 and Muhammad Mansha v. The State 2006 PCr.LJ 47 ref.

Muhammad Nadeem Kanjoo for Petitioner.

Hassan Mahmood Khan Tareen, D.P.-G. for the State with Ishaq, S.I. with record.

Muddasar Altaf Qureshi, for the Complainant.

2012 Y L R 1313

[Lahore]

Before Mazhar Iqbal Sidhu, J

Mst. SAIMA BIBI and another---Petitioners

Versus

S.H.O., POLICE STATION TAMMAN and another---Respondents

Writ Petition No.2747 of 2011, decided on 23rd December, 2011.

Penal Code (XLV of 1860)---

----S. 365-B---Constitution of Pakistan, Art 199---Constitutional petition---Kidnapping, abducting or inducing woman to compel for marriage etc.---Quashing of F.I.R.---Accused persons had solemnized Nikah with their free-will and such fact had been found as correct during investigation---Investigation officer had recommended cancellation of the case---Accused persons appeared before the court and vowed to have married each other---No act or omission had been made by the accused to punish them under any law and continuing with the proceedings would have been an abuse of process of law and wastage of time---F.I.R. in question was quashed---Constitutional petition was allowed.

Qazi Adil Aziz for Petitioner.

Malik Muhammad Iqbal for Respondents.

Ch. Muhammad Waheed Khan D.P.-G.

2012 Y L R 1315

[Lahore]

Before Sagheer Ahmad Qadri, J

SANAULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1-B of 2010 in Criminal Appeal No.454 of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Forgery, using as genuine a forged document, criminal misconduct---Suspension of sentence---Accused had been sentenced to seven years R.I. and he had sought suspension of the same on medical grounds---Medical report showed that accused's treatment, was not available inside the jail and he had to be referred to the Institute of Cardiology---Sentence of accused was suspended, in circumstances, and he was released on bail accordingly.

Jamal Din and another v. The State 1987 PCr.LJ 2327 and Haji Mir Aftab v. The State 1979 SCMR 320 ref.

Abdul Aziz Khan Niazi for Petitioner.

Muhammad Amjad Rafiq, D.P.-G. for Respondent.

Mahar Ali, A.S.-I. along with record.

2012 Y L R 1331

[Lahore]

Before Muhammad Qasim Khan, J

NAZIR AHMAD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.99 and 146 and Murder Reference No.16 of 2009, decided on 7th March, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---Occurrence had taken place in daylight---Presence of eye-witnesses at the scene of occurrence was established and no material diversity in their statements could be found---Conviction of accused was maintained---Element of family honour was involved in the case---Deceased himself had invited the misfortune by abducting the sister of accused---Immediate cause of murder had also remained a mystery---Death sentence awarded to accused was commuted to imprisonment for life in circumstances.

Abdul Manan Bhatti and Sardar Israr Ahmad Dahir for Appellant.

Muhammad Aslam Khan Dhukar for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor-General for Respondent.

Date of hearing: 7th March, 2011.

2012 Y L R 1338

[Lahore]

Before Mazhar Iqbal Sidhu, J

ZAWAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.17576-B of 2011, decided on 23rd February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/427/148/149---Qatl-e-amd, mis-chief causing damage to the amount of fifty rupees, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of cross-version F.I.Rs.---Accused was nominated in the F.I.R. but he had allegedly made a fire shot with his rifle on the back of the neck of the deceased but the postmortem report mentioned that pellets were recovered from the brain matter of the deceased---During the incident a person from the side of the accused had also been allegedly killed by the complainant party---Fact of killing of said person had not been disclosed by the complainant while reporting the matter to the police---Report under S. 173, Cr.P.C had been submitted for both the F.I.Rs. and it was yet to be seen as to which of the versions was correct, and such fact itself needed probe through the trial---Case of accused came within the ambit of further inquiry as envisaged under S. 497(2), Cr.P.C---Bail petition of accused was allowed and he was granted bail.

Mian Ahmad Mehmood for Petitioner.

Muhammad Aurangzeb Khan for the Complainant.

Muhammad Naeem Sheikh, D.P.-G. for the State with Nazir Ahmad, S.I. with record.

2012 Y L R 1342

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD TARIQ and others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1906-B of 2012, decided on 2nd March, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 498---Penal Code (XLV of 1860), Ss. 420/ 468/ 471--- Cheating and dis-honestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, confirmation of---Civil dispute between the parties concerning an agreement to sell was pending---F.I.R. had been lodged with a delay of two years---According to the contents of the agreement between the parties, Rs. one crore was allegedly paid by the accused to the complainant for the purchase of the land in dispute---Enforcement of such agreement was subject-matter of the civil suit between the parties, where the court had to determine its genuineness and validity---Anomaly would be created in the case if High Court convicted accused for an offence charged in the F.I.R. and sentenced them, holding the agreement to sell to be forged, and on the other hand civil court granted a decree of specific performance of the same agreement in favour of the accused holding the same to be valid and enforceable---Criminal proceedings, in such circumstances would prove to be a futile exercise and wastage of time---Civil court was the competent forum for the determination of the genuineness of the document and also had the power to set aside the same if the document in question was not proved in accordance with the law---Court also enjoyed the jurisdiction to initiate criminal proceedings against the person found involved in the fabrication of document in question, if it was adjudged to be a fabricated one---Perusal of case record showed that the complainant, in order to usurp the amount paid by the accused persons had lodged the present case against them---Application of accused persons was allowed and interim pre-arrest bail already granted to them was confirmed.

Mian Muhammad Aslam for Petitioner.

M. Ishaq, D.P.-G. along with Abdul Haq A.S.-I. For the State.

Syed Mumtaz Hussain Bukhari for the Complainant.

2012 Y L R 1345

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

MUKHTAR AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Appeals Nos.424-J and 1406 of 2006 and Criminal Revision No.864 of 2006, heard on 25th January, 2012.

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

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction of---Case was of two versions, one put forth by the prosecution in the F.I.R. and brought on record through statements of eye-witnesses, and the second taken by the accused during the investigation and in his statements recorded under S.342, Cr.P.C.---Presence of eye-witnesses on the spot at the relevant time was doubtful---Recovery of blood-stained hatchet at the instance of accused and positive reports of Chemical Examiner and Serologist, had not advanced the prosecution case---Recovery, even otherwise, was not substantive piece of evidence---Motive as alleged by prosecution had not been proved on record---Prosecution case, thus, was disbelieved and under the law the statement of accused was accepted as a whole without scrutiny---Star witness of the occurrence examined as court witness had fully supported the defence version as taken by accused in his statements under S.342, Cr.P.C. and concluded by Investigating Officer after his investigation---Accused had committed the occurrence under sudden provocation at the spur of moment without premedi-tation and pre-concert on seeing the deceased forcing his sister to concede to his lust---Accused had inflicted the blows with a blunt weapon on the deceased---Main cause of the death of deceased was strangulation, which was not attributed to accused---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years' R.I. in circum-stances.

Ashiq Hussain v. State PLD 1994 SC 879; Amin Ali v. The State 2011 SCMR 323; Hassan Muhammad v. The State 1994 SCMR 1212; Anwar and others v. The State 1985 SCMR 1123 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Principle---When prosecution case cannot survive on its own strength and is disbelieved, then the statement of accused recorded under S.342, Cr.P.C. is accepted as a whole without scrutiny; however, it is to be ascertained as to whether such statement of accused when believed in toto, constitutes some offence punishable under the law.

Amin Ali v. The State 2011 SCMR 323 ref.

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

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Occurrence committed without premeditation will be dealt with under S.302(c), P.P.C. [p. 1352] G

Hassan Muhammad v. The State 1994 SCMR 1212; Anwar and others v. The State 1985 SCMR 1123 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----S. 417---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Appeal against acquittal---Benefit of doubt---Principle---Acquitted accused enjoys double presumption of benefit of doubt, one during the trial and the second after his acquittal and, therefore, very strong and exceptional grounds are required to upset the acquittal recorded by the court of competent jurisdiction.

Ch. Rab Nawaz for Appellant.

Tariq Javed, Deputy District Public Prosecutor for the State.

Mrs. Nasreen Kausar and Imran Rashid for the Complainant.

Date of hearing: 25th January, 2012.

2012 Y L R 1362

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. NAFEES AKHTAR IJAZ and others---Appellants

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.4373 of 2008, decided on 21st July, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance of contract---Only the vendor of the suit land and one other defendant filed their independent written statements, while other defendants were proceeded ex parte due to their non-appearance in the suit---Defendant/vendor of suit property having conceded the claim of the plaintiff, suit was decreed against all the defendants, except the one who filed written statement---Two appeals were filed against the judgment of the Trial Court, one by the plaintiff against dismissal of the suit against the defendant who filed written statement; and the other by the defendants against ex parte decree passed against them by the Trial Court---Appellate Court below vide its single judgment, set aside the impugned judgment and decree of the Trial Court and remanded the case for its decision afresh after providing opportunity of hearing to all the concerned---Defendant who had filed written statement moved appeal against judgment of the Appellate Court---During pendency of said appeal all other defendants were proceeded ex parte due to their non-appearance---Plaintiff who appeared in the court made statement and conceded the appeal of said defendant and judgment of Appellate Court below was set aside to the extent of said defendant and order passed by the Trial Court was restored---Trial Court vide its impugned order found that the decree passed by it in the early round of litigation had already been restored by High Court while accepting First Appellate order, no further proceedings in that case were warranted by law and record was ordered to be consigned to the record room---High Court, however, clarified that order passed by it was to the extent of defendant who had filed written statement and order impugned in first appellate order was only set aside to the extent of said defendant---Judgment and order impugned in constitutional petition, passed by the Appellate Court below and civil court, respectively were set aside and case was remanded to the Trial Court for its decision afresh as directed by the Appellate Court below.

Moiz Tariq for Appellant.

Muhammad Sarwar Awan for Respondent.

Date of hearing: 21st July, 2011.

2012 Y L R 1366

[Lahore]

Before Shahid Hameed Dar and Syed Iftikhar Hussain Shah, JJ

TARIQ MEHMOOD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.2053 and Murder Reference No.833 of 2005, heard on 13th September, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Related witnesses, credibility of---Principle---Inter se relationship of the prosecution witnesses, who had stood firm to the test of cross-examination, cannot be made a basis to discard their statements in the presence of sufficient corroboratory material---Intrinsic value of the statements of prosecution witnesses is to be examined and not their relationship.

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

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Occurrence had taken place on the occasion of celebration of a "Rasm-e-Hina"---No heartburning or bad blood previously existed between the parties---Presence of eye-witnesses at the place of occurrence at the relevant time was fully established---Ocular testimony had revealed that the incident had taken place at the spur of the moment without any preplanning or premeditation---Most probably, accused having been driven by musical programme had fired a shot in the air followed by another shot, which fatally hit the deceased---Shot might be a targeted one by the accused, but at the same moment the possibility could not be ruled out by keeping in view the attending circumstances of the case, that it was a misdirected shot originally designed to be again fired into the air---Conviction of accused under S.302(b), P.P.C. was, consequently, altered to S.302(c), P.P.C. and he was sentenced to undergo fourteen years R.I. in circumstances.

Ch. Muhammad Ibrahim for Apellant.

Khurram Khan, D.P.-G. for the State.

Alamgir for the Complainant.

Date of hearing: 13th September, 2011.

2012 Y L R 1379

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. QAIM KHATOON and others---Appellants

versus

SHAMSHER ALI and others---Respondents

F.A.O. No.82 of 1999, decided on 12th January, 2012.

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

----O.XIV, R.1---Framing of issues---Object---Controversy ought to be reflected through issues and parties must be aware about their rights and obligations.

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

----O. XLI, R. 23---Remand---Scope---Remand of case by Appellate Court after framing issues---Validity---Where such isuses could be decided on basis of evidence available on record, then remand of case to lower court for its decision would not be justified.

Rehman Shah and others v. Sher Afzal and others 2009 SCMR 462; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Muhammad Mukhtar and others v. Muhammad Sharif and others 2007 SCMR 1867; Muhammad Younis and others v. Ashiq Hussain and others PLD 2007 SC 217; Pramatha Nath Chowdhury v. Kamir Mondal PLD 1965 SC 434; Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524; Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Sher Muhammad and another v. Jamadar Ghulam Ghaus 1983 SCMR 133; Malik Safdar Ali Khan and another v. Public-at-Large and others 2004 SCMR 1219; Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772; Haji Shah Nawaz through his Legal Heirs and others v. Badruddin and others PLD 1988 SC 642 and Muhammad Mukhtar and others v. Muhammad Sharif and others 2007 SCMR 1867 ref.

Mushtaq Ahmad Chaudhry for Appellants.

Qamar Riaz Hussain Basra for Respondents Nos.1 to 3.

Ch. Khalid Ikram Khatana for Respondent No.4.

Date of hearing: 12th January, 2012.

2012 Y L R 1386

[Lahore]

Before Muhammad Ameer Bhatti, J

LIAQAT HUSSAIN MALIK---Appellant

versus

Malik MUHAMMAD ASLAM---Respondent

R.S.A. No.18 of 2004, decided on 27th September, 2011.

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

----Arts.49 & 85(1)(iii), (3), 87 & 88---Criminal Procedure Code (V of 1898), Ss.154 & 513---Certified copies of First Information Report and surety bond pro-cured from accused---Evidentiary value---Such documents for being public documents and relevant would be admissible in evidence without any further proof---Principles.

Haji Abdul Razzaque v. Pakistan through Secretary, Ministry of Deence and 2 others 1994 CLC 613 ref.

Irshad Ahmad and 6 others v. Abdul Hamid and 4 others 1985 CLC 1513; Mst. Noor Khatun v. Noor Khan PLD 1956 Lah. 293; Ratanchand Radhakisondas v. State AIR 1960 Bombay 146 and Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat, performance of---Knowledge of others about suit sale---Effect---Mere such knowledge could not be considered knowledge of pre-emptor.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Mst. Noor Jahan Begum through Legal Representative v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; 2007 SCMR 518 and Muhammad Hafeez and another v. District Judge Karachi East and another 2008 SCMR 398 ref.

Sardar Khan v. Bashir Ahmed 2010 CLC 124 rel.

(c) Pleadings---

----No body can go beyond his pleadings.

Muhammad Ameen v. Sardar Ali PLD 2006 SC 318 and Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300 rel.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, per-formance of---Proof---Positive proof about date and specific time of gaining knowledge of suit sale by pre-emptor and place of his making jumping demand being sine qua non for succeeding in such suit---Foundation of such suit rested on Talb-e-Muwathibat, thus, in case of failure of pre-emptor to prove the same, Talb-e-Ishhad, even if proved, could not be considered.

Taki Ahmed Khan for Petitioner.

Naveed Shahryar Sheikh and Fayyaz Ahmed Kaleem for Respondent.

Dates of hearing: 26th and 27th September, 2011.

2012 Y L R 1401

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ALI MUHAMMAD and others---Petitioners

versus

SECRETARY, GOVERNMENT OF PAKISTAN MINISTRY OF RELIGIOUS AFFAIRS AND MINORITIES AFFAIRS ISLAMABAD and 3 others---Respondents

C.R. No.2463 of 2000, heard on 7th July, 2011.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiffs, tillers of evacuee trust agricultural land, aggrieved of higher rates of lease money demanded by the Authorities, had agitated against the same before the Authorities---Plaintiffs' applications before the Authorities were dismissed and suit land was ordered to be auctioned by the Authorities---Plaintiffs subsequently filed the suit whereby the proposed auction of land was challenged---Suit of plaintiffs was decreed by Trial Court, but said order of Trial Court was set aside by Appellate Court---Validity---Authorities submitted before the High Court that the Authorities would decide the plaintiffs' application in terms of the order of the Trial Court and in accordance with the law---High Court disposed of the matter by directing Chairman Evacuee Trust Property Board to decide the plaintiffs' application keeping in mind the judgment of the Trial Court or under any other Scheme announced by the Government---Evacuee Trust Property Board was directed to provide full opportunity of hearing to the plaintiffs and the defendant authorities---High Court directed that till the final disposal of the plaintiffs' application, the possession of the plaintiffs should not be disturbed---Revision was disposed of accordingly.

Ch. Masood Ahmad Zafar for Petitioners.

Mati ur Rehman and Mian Muhammad Qamar uz Zaman for Respondents.

Date of hearing: 7th June, 2011.

2012 Y L R 1410

[Lahore]

Before Tariq Javaid, J

Raja MASOOD AHMAD---Petitioner

versus

ANSAF ALI and 2 others---Respondents

C.R. No.423-D of 2004, heard on 5th November, 2010.

Civil Procedure Code (V of 1908)---

----S.104 & 115---Revision---Filing of Appeal with incorrect address of a party---Petitioner contended that the respondent had filed an appeal before Appellate Court, wherein incorrect address of the petitioner was given and the petitioner was condemned unheard as a result thereof---Validity---Petitioner had, admittedly, never received the notice of the filing of appeal before the Appellate Court nor had any knowledge of the impugned proceedings and the judgment---Counsel of the petitioner had died and the copy of the death certificate had been placed on record, and the case had already been admitted to regular hearing---Interest of justice would not be served by non-suiting the petitioner at a late stage on the technical ground of limitation---Petitioner had been condemned unheard---High Court set aside judgment and decree of Appellate Court and the case was remanded to the Appellate Court---Revision was accepted accordingly.

Malik Ghulam Siddique Awan for Appellant.

Mian Imran Pasha for Respondent.

Date of hearing; 5th November, 2010.

2012 Y L R 1414

[Lahore]

Before Amin-ud-Din Khan, J

IRSHAD AHMAD and another---Petitioners

versus

MANZOOR AHMAD and others---Respondents

Civil Revision No.9-D/BWP, heard on 3rd October, 2011.

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

----O.VII, R.II, Ss. 47 & 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Scope---Plaintiff had sought declaration of title over suit land and challenged attestation of mutation of suit land in favour of the defendants---Suit of plaintiff was dismissed by Trial Court under O. VII, R. 11, C.P.C. and said order of Trial Court was upheld by Appellate Court---Validity---Suit was barred under the law because it was not denied by the parties that the impugned mutation of suit land was attested in an executing decree under order of an Executing Court---Any right of the plaintiff, under threat through said mutation, could be remedied under S. 47, C.P.C. or if said decree of Executing Court was to be challenged, then the plaintiff had the remedy of S.12(2), C.P.C., and should not have filed the suit---Plaintiffs, had an opportunity to look into the certified copies of the judicial record which had not been denied by the plaintiffs and therefore the suit was liable to be rejected under O. VII , R. 11, C.P.C.---Dismissal of suit by courts below was principally correct---Revision was dismissed.

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

----O.VII, R 11---Application of O.VII, R.11, C.P.C---Scope---For application of O. VII R. 11, C.P.C. it was not necessary that issues be framed and evidence be recorded.

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

----S. 11---Application of S.11, C.P.C.----For application of S. 11 C.P.C., it was for the Court to see whether the suit property and cause of action in both the suits were the same and if the former suit had been finally decided by the court of competent jurisdiction, then such second suit would be barred.

Raja Muhammad Sohail Iftikhar for Petitioners.

Rana Muhammad Hussain Shakir for Respondents.

Date of hearing: 3rd October, 2011.

2012 Y L R 1418

[Lahore]

Before Amin-ud-Din Khan, J

PROVINCE OF PUNJAB and others---Petitioners

versus

WAHID BAKHSH and others---Respondents

Civil Revision No.88-D of 1997/BWP, heard on 13th October, 2011

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXVI, R.9---Suit for possession--Local Commission, report of---Suit was decreed by the Trial Court and same was upheld by Appellate Court----Plaintiff, in order to show ownership, had relied on a copy of haqdaraan wherein the plaintiff was shown as partly the owner of the suit land---Defendants were in possession of the land owned by them---Report of the local commission, when scrutinized in the light of documentary evidence produced by the plaintiff, was found to be clearly false as the plaintiff was not the exclusive owner of the suit land---Revenue record produced by the plaintiff was against the plaintiff's own version---Objections on the report of said local commission raised by the defendants, were not attended to by the courts below---Local Commission had not issued notices to the defendants and had not observed the instructions with regard to the demarcation issued by the Board of Revenue---Patwari was not present at the time of the spot inspection and revenue record had not been relied upon by the said local commission in its report---Report of the said local commission was not reliable and revenue record being against the plaintiff, there was no evidence available with the Trial Court to decree the suit---Findings of the courts below were based upon misreading and non-reading of evidence---High Court set aside orders of the courts below and dismissed suit of plaintiff----Revision was accepted, accordingly.

Naveed Khalil Chaudhry A.A.-G. and Sardar Muhammad Hussain Khan for Petitioners.

Nemo for Respondents.

Date of hearing: 13th October, 2011.

2012 Y L R 1422

[Lahore]

Before Nasir Saeed Shaikh and Rauf Ahmad Shaikh, JJ

ASGHAR ALI---Appellant

versus

MUHAMMAD YOUSAF and others---Respondents

R.F.A. No.354 of 2009, heard on 15th November, 2011.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Striking of defence--Closing of right to produce evidence---Suit filed by plaintiff was dismissed on 8-6-2009, by Trial Court on the ground that despite repeated opportunities given, plaintiff failed to produce any evidence in support of his case---Validity---On 8-6-2009, neither counsel for plaintiff nor his attorney or he himself appeared in the Trial Court and only an application was presented through clerk of counsel without assigning any reason as to inability for production of evidence---Plaintiff should have shown some responsibility and produced evidence, after three successive adjournments given and grant of last and final opportunity subject to payment of costs---Contumacious omission to produce evidence precluded plaintiff to claim that he was deprived of the right to prove his contention---Adjournments were granted on three continuous preceding dates of hearing so he could not say that he should have been given an opportunity for casual leave of the Presiding Officer of the Court---High Court declined to interfere in judgment passed by Trial Court---Appeal was dismissed in circumstances.

Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180; Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673; Sheikh Muhammad Sarwar v. Zaheer Ahmad 2009 MLD 481 and Abdul Sattar v. Chairman, Pakistan Railways and others 2011 YLR 1003 rel.

Ch. Jehanzeb Wahlah for Appellant.

Ch. Jamshaid Ahmad for Respondents Nos. 1 to 3.

Date of hearing: 15th November, 2011.

2012 Y L R 1426

[Lahore]

Before Syed Mansoor Ali Shah, J

Hafiz MUHAMMAD ALEEM---Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 4 others---Respondents

Writ Petition No.1805 of 2012, heard on 6th February, 2012.

Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----Ss. 2(n) & 5---Punjab Procurement Rules, 2009, Rr.50 & 51---Constitution of Pakistan, Art. 199---Constitutional petition---Public procurement---Catering services---Petitioner assailed tender for catering services finalized by Lahore Development Authority---Validity---Tender was advertised bypassing the Rules resulting in misprocurement as provided under R.50 of Punjab Procurement Rules, 2009---No reason was furnished by the Authority for not complying with provisions of Punjab Procurement Rules, 2009, for inviting bids under tender for catering services---Lahore Development Authority stated that it did not fall within the purview of Punjab Procurement Regularity Authority Act, 2009 or Punjab Procurement Rules, 2009, but admitted that bids were processed under Punjab Procurement Regularity Authority Act, 2009---Parawise comments of Lahore Development Authority were contrary to position taken by the Authority and the same were in violation of facts on record---Tender in question and subsequent proceedings thereunder were violative of Punjab Procurement Rules, 2009, and resulted in misprocurement thus same were set aside---High Court cancelled contract awarded to respondent as the same lacked transparency---High Court directed Punjab Procurement Regu-latory Authority to actively perform its functions under S.5 of Punjab Procurement Regulatory Authority Act, 2009, across the Province---Petition was allowed in circumstances.

Suo Motu Case No.5 PLD 2010 SC 731; Messrs Malik Mushtaq Goods Transport Co., Lahore v. Federation of Pakistan through Secretary Railways, Islamabad and 9 others PLD 2010 Lah. 289; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274; Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Province of Sindh through Secretary, Home Department and others v. Roshan Din and others PLD 2008 SC 132; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others 2007 YLR 1618 and M.D. Tahir, Advocate v. Federal Government and others PLD 1999 Lah. 409 ref.

Syed Faiz-ul-Hassan for Petitioner.

Waqar A. Sheikh for Respondent.

Imran Ahmad Mian for Respondent No.5.

Ishtiaq Ahmed, Director, C&I, LDA.

Sibtain Raza Qureshi, Assistant Director, LDA.

2012 Y L R 1436

[Lahore]

Before Mehmood Maqbool Bajwa, J

AZHAR HUSSAIN KHAN CHANDIO ---Petitioner

versus

MODERN ENGINEERS AND CONTRACTORS through Muhammad Javid Butt---Respondent

Civil Revision No.155 of 2011, decided on 1st March, 2012.

(a) Words and phrases---

----"Execution"---Meaning.

Black's Law Dictionary (Eighth Edition) ref.

(b) Words and phrases---

----"Objection"---Meaning.

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

----S.26 & O.XXI, R.11---Commencement and termination of process of litigation---Process of commencement of execution of decree---Scope---Litigation would start from institution of the suit or proceedings and terminate upon conclusion of trial by passing of decree---Process of execution of decree would commence by filing execution petition and not prior thereto.

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

----O.XXI, R.23-A---"Objection" as used in O.XXI, R.23-A, C.P.C.---Connotation--Such word would suggest certain grounds of attack to resist/obstruct implementa-tion of court's order and judgment.

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

----S. 12(2), O. IX, R. 13 & O. XXI, R.23-A(a)---Application under S.12(2), C.P.C. for setting aside ex parte money decree---Grounds for non-service of summons upon applicant-defendant etc.---Order of Trial Court directing applicant to furnish Bank guarantee for decretal amount under O.XXI, R.23-A, C.P.C. upheld by Appellate Court---Validity---Process of execution of decree would commence on filing of execution petition--Such application could not be said to be an "objection petition" within meaning of O.XXI, R.23-A, C.P.C. to attract mischief of clause (a) thereof---High Court set aside impugned orders in circumstances.

Nawab and others v. Fazal Abbas PLD 2005 Lah. 83; Messrs Nowshera Bricks and Tiles (Pvt.) Ltd. and others v. Regional Development Finance Corporation 2002 CLC 904 and "Happy Family Associates through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 SC 226 rel.

Muhammad Naveed Sheikh for Petitioner.

2012 Y L R 1441

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ILYAS alias BHOLA---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.590, 756 and Murder Reference No.182 of 2007, heard on 5th April, 2012.

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

----S. 302(b)/34---Qatl-e-amd---Common intention---Appreciation of evidence---No delay in reporting the matter to the Police---Incident took place near the house of eye-witnesses, who being inmates of the house, were natural witnesses of the occurrence---Their presence at the spot at the relevant time was quite natural---Their evidence qua accused was straightforward and confidence-inspiring--- Medical evidence had substantially supported the ocular account furnished by the complainant and prosecution witness---Doctor concerned was cross-examined by the defence counsel, but nothing favourable to the accused could be brought on the record during the process of his cross-examination---Prosecution case against accused was further corroborated by the recovery of pistol, which was recovered on his pointation---Empties of said pistol were sent to the Forensic Science Laboratory and report of said Laboratory was positive---Evidence of recovery of pistol and positive report of the Forensic Science Laboratory, had further corroborated the prosecution case against accused---Motive in the case which was not proved, could not be used against accused---Statements of defence witnesses were not reliable as they were resident of place which was away from place of occurrence---One of the defence witnesses was a chance witness who had not explained any plausible reason for his presence at the place of occurrence---Defence evidence produced by accused, being not worthy of reliance, same was not helpful to accused---Even if the evidence of motive was excluded from consideration, there was sufficient incriminating evidence available on the record against accused---Prosecution case was fully established to the extent of accused through evidence of the complainant and prosecution witness---Prosecution, in circumstances, had fully proved its case against accused beyond the shadow of doubt---Conviction of accused under S.302(b), P.P.C. awarded by the Trial Court was maintained, but there were mitigating circumstances in his favour---Firstly, the prosecution had alleged a specific motive, but it had failed to prove the same---Secondly, his co-accused had been acquitted---Accused was also entitled for the benefit of doubt on extenuating circumstances while deciding his question of sentence---Sentence of death awarded to accused, was altered to imprisonment for life, in circumstances.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

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

----S.302(b)/34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd---Common intention---Appeal against acquittal---Accused though was declared innocent in two successive investigations, but High Court was not bound by the opinion given by the Investigating Officer, because it was always the evidence available on the record which weighed with the court and not the Police opinion while passing the judgment---Accused had been assigned the role of making fire shots with his pistol at the deceased---Trial Court had acquitted accused---After perusal of available record and considering findings arrived at by the Trial Court, it appeared that the reasons advanced by the Trial Court for recording acquittal of accused, were not either arbitrary or perverse; and the conclusion arrived at in the impugned judgment appeared to be in accordance with law---No legitimate exception could be taken to the conclusion arrived at by the Trial Court---Even otherwise accused after his acquittal by the Trial Court, enjoyed double presumption of innocence in his favour, and courts seized with appeal against acquittal under S.417, Cr.P.C., were obliged to be very careful in dislodging such presumption---In view of said circumstances coupled with guidelines given by the Supreme Court in its judgment (2009 SCMR 803), nothing arbitrary, capricious, fanciful or against the record was to warrant interference with the acquittal of accused---Appeal against acquittal was dismissed, in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

Chaudhry Riasat Ali for Appellant and for Respondent No.1 (in Criminal Appeal No.756 of 2007).

Chaudhry Muhammad Mustafa, Deputy Prosecutor-General for the State.

Qamar Zaman Qureshi for the Complainant. (in Criminal Appeal Nos.590 of 2007) and for Appellant (in Criminal Appeal No.756 of 2007). .

2012 Y L R 1464

[Lahore]

Before Ch. Muhammad Younis, J

GHULAM HUSSAIN---Petitioner

versus

Malik MUHAMMAD NIAZ and others---Respondents

Writ Petition No.606 of 2012, decided on 7th March, 2012.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 30---Constitution of Pakistan, Art. 199---Constitutional petition---Denial of relationship of landlord and tenant by the parties---Contention of the petitioner (tenant) was that he had in his favour an agreement to sell the premises; and therefore he was not a tenant---Validity---Mere agreement to sell did not create any title and on basis of such agreement petitioner could not claim to be owner of the property---Status of the petitioner in the premises was that of a tenant and he would continue to be a tenant unless not only the decree for specific performance of the said agreement was passed but in execution thereof, the sale deed was also registered in his favour---Premises were purchased by the respondent-landlord and by operation of the law the petitioner had become the tenant of the respondent-landlord; and legal notice regarding said change of ownership had also been sent to the petitioner (tenant)---Constitutional Petition was dismissed.

1988 CLC 1520 (Lahore), 1991 SCMR 850, 1999 MLD 1342 (Lahore), PLD 2006 Lahore 643 and 2009 SCMR 1091 distinguished.

Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242, Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45, 2009 SCMR 1396, 2010 YLR 114 (Lahore) and 2010 MLD 45 rel.

2012 Y L R 1472

[Lahore]

Before Muhammad Anwaarul Haq and Mazhar Iqbal Sidhu, JJ

TASAWAR HUSSAIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.544 of 2006 and Murder Reference No.22 of 2007, decided on 27th October, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Consumption of reasonable time in reporting the incident to police, rather its being deferred till the death of the deceased was indubitable---Presence of eye-witnesses at the scene of occurrence had been proved---Medical evidence had supported the ocular version---Prosecution had fully proved its case against the accused without any doubt---Conviction of accused, thus, was maintained---However, delay of two days in lodging the F.I.R. was not reasonably explained by the prosecution---Accused was not directly or indirectly connected with the motive---Prosecution evidence qua all co-accused had been disbelieved and they had been acquitted---Iron rod used by the accused, normally, was not treated as the weapon of offence---Occurrence was not the outcome of deep rooted enmity---Accused had given a solitary blow despite having command to repeat the same---Sentence of death of accused was commuted to imprisonment for life in circumstances.

Azam Nazir Tarar and Mazhar Ali Ghallu for Appellant.

Muhammad Taqi Khan and Umar Farooq Qatto for the Complainant.

Shahid Bashir, Deputy Prosecutor General for the State.

2012 Y L R 1480

[Lahore]

Before Muhammad Khalid Mehmood Khan and Syed Muhammad Kazim Raza Shamsi, JJ

Mst. ZAIB JAHAN and 2 others through General Attorney---Appellants

versus

SAJJAD KHAN and another---Respondents

R.F.As. Nos.222 and 223 of 2002, decided on 20th September, 2011.

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

----S.2(2)---Decree of court---Validity---Such decree could not be disbelieved on the ground to have been obtained by mentioning wrong address.

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

----Art.49---Birth Certificate---Birth certi-ficate finding mention only " " without her name---Evidentiary value---Such certificate could not be disbelived for non-mentioning therein name of the child as parents ordinarily select name of child after consultation with family or religious head.

(c) Islamic law---

----Inheritance--- Property left by deceased---Nominee, right of---Scope---Nominee would have no right in property for whom he/she had been nominated except that he/she would distribute same amongst legal heirs according to law of inheritance applicable to them.

(d) Citizenship Act (XI of 1951)---

----S.17---Domicile certificate---Domicile certificate issued by Deputy Commissioner could not be belied.

Mian Zafar Iqbal Kalanauri for Appellant.

Imran Muhammad Sarwar for Respondent.

2012 Y L R 1502

[Lahore]

Before Abdus Sattar Asghar, J

Mst. SHAMSHAD BIBI

and another---Petitioners

versus

THE STATE---Respondent

Criminal Appeals Nos.88 and 103 Criminal Revision No.61 of 2003/BWP, heard on 30th January, 2012.

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

----Ss. 302(b) & 109---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd, abetment---Appreciation of evidence---Prosecution case was based only on circumstantial evidence---Prosecution witness claiming to have seen the deceased for the last time with the accused was not the resident of the "Chak" of the deceased, nor he had plausibly explained his presence in the area on the relevant date and time---Said witness had made his statement before Investigating Officer after 20 days of the occurrence in this regard without giving any probable reason for such inordinate delay---Testimony of said witness was not corroborated by any other prosecution witness and the same having no intrinsic and inherent value did not inspire confidence---Similarly the solitary statement of prosecution witness about making an extra-judicial confession by accused before him in the absence of any corroboration, was not reliable and such untrustworthy evidence was totally insufficient to prove the weakest plea of extra-judicial confession---As regards the judicial confession allegedly made by accused, Magistrate admittedly before recording his statement under S.164, Cr.P.C. had not put a specific question to him as to whether there was any pressure upon him to make a confession---Such was a material lapse on the part of the Magistrate---Voluntary nature of the alleged confession of accused before the Magistrate in the absence of the aforesaid particular question, was highly doubtful and could not be safely relied upon---Alleged statement under S.164, Cr.P.C. recorded on the direction of Sessions Court could also be not termed as a voluntary statement---Retracted judicial confession was also materially discrepant with the extra-judicial confession made by the accused and, thus, it could not be relied upon---None of the prosecution witnesses had deposed that he had seen the accused hatching any conspiracy or abetting the allegedly hired assassins to kill the deceased---Evidence as to conspiracy by producing a chance witness was not acceptable at all---Prosecution had failed to discharge its heavy burden to prove the complicity of the accused in any manner in the murder of the deceased beyond any reasonable doubt---Accused were acquitted in circumstances.

Fakku Mia alias Motahar v. The State 1969 SCMR 620 ref.

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

----S. 120-A---Qanun-e-Shahadat (10 of 1984), Art.23---Criminal conspiracy, proof of---Essentials.

To prove a criminal conspiracy following essentials are to be established by the prosecution in terms of Article 23 of the Qanun-e-Shahadat Order, 1984.

(i) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy;

(ii) if the said condition is fulfilled, anything said, done or written by anyone of them in reference to their common intention will be evidence against the other;

(iii) anything said, done or written by him should have been said, done or written by him after the intention formed by anyone of them;

(iv) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it.

Besides above it is also pertinent to mention that a conspiracy consists not merely in the intention of two or more person but in an agreement of two or more persons to do an unlawful act.

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

----S. 120-A---Criminal conspiracy---Scope---Criminal conspiracy consists not merely in the intention of two or more persons, but in an agreement of two or more persons to do an unlawful act.

Malik Sajid Feroz and for Appellants (in Criminal Appeal No. 88 of 2003).

Muhammad Shahid Khan for Appellant (in Criminal Appeal No.103 of 2003).

Ch.Asghar Ali Gill, Deputy Prosecutor for the State.

Mumtaz Mustafa for the Complainant.

2012 Y L R 1519

[Lahore]

Before Sardar Muhammad Shamim Khan and Rauf Ahmad Sheikh, JJ

PEER BAKHSH alias ZULFIQAR alias BHUTTO and others ---Appellants

versus

THE STATE and others ---Respondents

Criminal Appeals Nos.251, 323, 339, 584 and Murdered Reference No.458 of 2006, heard on 5th October, 2011.

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

----Ss. 302(b) & 393/34---Qatl-e-amd, attempt to commit robbery---Appreciation of evidence---Sentence, reduction in---Eye-witnesses were the most natural witnesses of the occurrence and they had proved that deceased had lost his life due to the firing made by accused---Medical evidence had fully supported the ocular account regarding murder of the deceased---Motive as set up by the prosecution was not proved---Occurrence had not taken place during robbery or an attempt to commit robbery---Failure of prosecution to prove the alleged motive might be considered as a valid mitigating circumstance keeping in view the other important aspects of the case---Report of Forensic Science Laboratory was insignificant---Factum of recovery was not above doubt---Conviction of accused under S.302(b), P.P.C. was maintained, but his sentence of death was reduced to imprisonment for life in circumstances---Accused was acquitted of the charge under S.393/34, P.P.C.

Khan Bakhsh alias Abdul Karim and 2 others v. State 2000 PCr.LJ 1402; The State v. Fazal Ahmad and another 1970 PCr.LJ 633; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Muhammad and 3 others v. The State 1972 PCr.LJ 1108; Muhammad Achar v. The State 1991 PCr.LJ 522 and Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 393/34---Attempt to commit robbery---Appreciation of evidence---Participation of accused in the occurrence was not positively established---Accused, according to complainant, had not used their weapons---Door of the "Haveli" being already open, if the accused had come there for committing robbery, there was no need to call the inmates outside, rather they would have easily entered the house by giving a surprise to them in order to accomplish their task---Complainant had stated that the accused had not entered the house for the purpose of theft, robbery or any other purpose prior to the occurrence---Alleged motive was not the cause of occurrence---Both the sides had tried to conceal the actual cause of the episode---Accused were acquitted in circum-stances.

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

----Ss. 302(b) & 393/34---Qatl-e-amd, attempt to commit robbery---Appreciation of evidence---Recovery of weapon of offence and report of Forensic Science Laboratory---Evidentiary value---Recovery of weapon of offence and report of Forensic Science Laboratory are only for corroborative purposes---Non-recovery of weapon of offence or negative report of Forensic Science Laboratory do not dis-prove the prosecution version.

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

----Ss. 302(b) & 393/34---Qatl-e-amd, attempt to commit robbery---Appreciation of evidence---Motive---Absence or weakness of motive---Effect---Absence or weakness of motive is not fatal to the prosecution case, but once it is set up and not proved, then the prosecution must suffer the consequences.

Malik Muhammad Saleem and Ch. Tariq Mahmood Farrukh for Appellants.

Munir Ahmad Sial, D.P.-G. for the State.

Ch. Faqir Muhammad and Mian Arshad Ali for the Complainant.

2012 Y L R 1528

[Lahore]

Before Nasir Saeed Sheikh, J

MAZHAR HUSSAIN and 8 others---Appellants

versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB through Manager Auqaf, Chiniot and 7 others---Respondents

F.A.O. No.95 of 2012, decided on 16th April, 2012.

Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 11 & 12---Appeal---Limitation---Return of memorandum of appeal---Period of 60 days was available for filing appeal under S.12 of Punjab Waqf Properties Ordinance, 1979 against the judgment passed under S.11 of the Ordinance---No intimation was given to the appellants for objections raised by the office and memorandum of appeal was given to the appellants for removal of the objections within a period of three days; and appellants removed the objections and refiled appeal within prescribed period---Certain office objections were again raised by the office---Contention of the counsel was that return of memorandum of appeal was not necessary and the office could have retained said memorandum and directed the appellants to remove the said objections--- Validity--- Return of the memorandum of appeal by the office to the appellants was not a legal act---Appeal filed by the appellants, could not be described to be barred by limitation---Subject to the question of limitation to be finally resolved at the ultimate hearing of appeal, appeal was admitted to regular hearing in circumstances.

Muhammad Ahmad v. Muhammad Ali and another PLD 1996 Lah. 158 and Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others PLD 2007 SC 287 rel.

Malik Rab Nawaz for Appellants.

2012 Y L R 1550

[Lahore]

Before Sh. Najam-ul-Hassan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SHAHID and 4 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.858 and Murder Reference No.419 of 2004, heard on 25th March, 2010.

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

----S. 337-A(i)---Causing Shajjah-i-Khafifah---Appreciation of evidence---Sentence, reduction in---F.I.R. had been lodged with full promptitude, possibility of any deliberation and consultation would not arise---Motive as agitated by the prosecution, which was not rebutted by the defence, would play an important role and led the fate of the case as a whole to its logical conclusion---Occurrence had taken place in the month of August and during that season 6.30 P.M was not time when the light would fade and the identification of the assailants was difficult to observe---Case of accused persons was distinguishable from the accused who was sentenced to death---Accused persons were stated to be armed with Sotas and had inflicted injuries on the persons of injured prosecution witnesses---Trial Court on the basis of same evidence had acquitted the rest of accused persons---Keeping in view the role ascribed to the accused persons and rule of consistency, sentence awarded to accused persons, was reduced to period already undergone, in circumstances.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Only one dagger blow was caused to the deceased on the vital part of body by accused, at the time when his father was also present there who raised Lalkara---Possibility of accused having acted under the influence of his father, could not be ruled out---Sentence of death awarded to accused was not called for---Sentence of death awarded to accused by the Trial Court was converted into imprisonment for life, in view of the fact and role ascribed to him causing injury without repetition and unproved motive coupled with possibility of acting of accused under the influence of his father.

Mahmood Rasheed and others v. State 2003 SCMR 581 and Noor Muhammad v. State 2010 SCMR 97 rel.

Malik Muhammad Rab Nawaz Khan for Appellants.

Mian Muhammad Sikandar Hayat for the Complainant.

Qazi Zafar Iqbal, Addl. Prosecutor General for the State.

2012 Y L R 1565

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD AHSAN BHUTTA---Petitioner

versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Registrar and 2 others---Respondents

Writ Petition No.13875 of 2011, decided on 1st February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution--- Denial of admission on ground of late submission of application for admission---Petitioner applied for admission on reserved seat of University, 11 days after the last date for submission of application---Contention of the petitioner was that his results were announced on 11-10-2011 therefore he could not apply on the last date which was 30-9-2011--- Validity--- Petitioner was rightly not considered for admission by the University as he had applied 11 days after the last date of applying for admission---Law helped the vigilant and not the indolent---Other candidates had also applied for the said reserved seats pending the announcement of their results and the petitioner should have done the same but instead, he opted not to submit his admission within time---Constitutional petition was dismissed.

Syed Babar Raza Gillani for Petitioner.

2012 Y L R 1571

[Lahore]

Before Manzoor Ahmad Malik and Abdul Sami Khan, JJ

AHMAD HUSSAIN and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.181, 247 and Murder Reference No.74 of 2007, heard on 29th March, 2012.

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

----S.173---Police opinion---Police opinion, regarding innocence or guilt of an accused person, was inadmissible in evidence.

Muhammad Ahmad (Mahmood Ahmad) and others v. The State 2010 SCMR 660 rel.

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

----Ss. 302(b)/34---Qatl-e-amd---Common intention---Appreciation of evidence---Benefit of doubt---Prosecution had failed to bring on record anything as to how accused persons reached and decamped from the place of occurrence---Prosecution had failed to prove the motive against accused persons---Evidence of the eye-witnesses was of such a quality, that it required strong corroboration, if it was to be believed---In the present case, there was no corroboration as no weapon was recovered from any of the accused persons; and the motive had not been believed---All the circumstances had created doubts in a prudent mind about involvement of accused in the case---Prosecution was required to prove its own case beyond any shadow of doubt, and if any doubt was created in the prosecution case, its benefit would not be given to accused as a matter of grace, but as a right---Prosecution story being doubtful in nature, accused were entitled to its benefit---Impugned judgment was set aside, accused were acquitted and were released, in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

M.S. Shad assisted by Muhammad Aqeel Wahid Chaudhary for Appellants (in both Appeals)

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Muhammad Ishfaq Mughal for the Complainant.

2012 Y L R 1595

[Lahore]

Before Mazhar Iqbal Sidhu and Muhammad Qasim Khan, JJ

TARIQ---Appellant

versus

THE STATE and 2 others---Respondents

Criminal Appeal No.256 and Murder Reference No.27 of 2008, heard on 14th September, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. was lodged after a delay of eighteen hours, explanation whereof was not believable---Complainant had twisted the real facts of the case, meaning thereby that either he had not seen the occurrence or he had concocted the story in connivance with the Police at a belated stage---Ocular testimony furnished by interested witnesses was not corroborated by any independent evidence---Co-accused had been acquitted by Trial Court---Motive for the occurrence had not been proved---Prosecution story appeared to be highly improbable and doubtful---Accused was acquitted in circumstances.

Syed Aasim Bokhari at State expanse for Appellant.

Malik Muhammad Latif, Deputy Prosecutor General for Respondents.

2012 Y L R 1603

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD MUMTAZ---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5035-B of 2011, decided on 15th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34--- Qatl-e-amd, common intention---Bail, grant of---Delay in conclusion of trial---Trial of accused had not commenced for last more than two years---Accused had been attributed a fatal injury but court had no option but to allow bail in case the accused was so entitled by virtue of section 497 Cr.P.C, on basis of delay in conclusion of his trial---Accused was not a previously convicted offender for an offence punishable with death or imprisonment for life nor was he an accused of an act of terrorism punishable with death or imprisonment for life---No record had been provided to the High Court to demonstrate that the accused was a hardened, desperate or dangerous criminal or that the conclusion of the trial had been delayed by some act of the accused---Contention of complainant was that accused was a hardened, desperate and dangerous criminal as in the present case he fired upon the deceased and caused his death, but such contention did not hold any water as it would be incumbent on the prosecution to establish that there were allegations of similar nature or any other dastardly acts stated to have been committed by the accused person---In absence of material which would establish that the accused has previously also been guilty of having committed a heinous offence or having committed a serious offence or any dastardly act out of sheer desperation, it would be wrong to deny bail to the accused solely on the ground that in one solitary case he fired from a pistol and caused a fatal injury---Onus was on the prosecution and the complainant to bring on record some material other than the case (in hand) to show that the accused was a hardened, desperate and dangerous criminal---Bail petition of accused was allowed and he was admitted to bail.

Moundar and others v. The State PLD 1990 SC 934; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Amir v. The State PLD 1972 SC 277 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd, common inten-tion---Bail, grant of---Delay in conclusion of trial---Burden of proof---Onus was on the prosecution as well as the complainant to bring on record some material other than the present case to show that the accused was a hardened, desperate and dangerous criminal.

Habib Ullah Shakir and Mian Muhammad Ashfaq Hussain for Petitioner.

Ch. Muhammad Akbar, D.P.G. for the State.

2012 Y L R 1607

[Lahore]

Before Mehmood Maqbool Bajwa, J

KHALID PERVAIZ and another---Appellants

versus

MUHAMMAD BASHIR---Respondent

F.A.O. No.266 of 2009, decided on 23rd February, 2012.

Civil Procedure Code (V of 1908)---

----O.XLI Rr. 23,24 & 25---Suit for pre-emption---Powers of Appellate Court----Defective framing of issues by Trial Court---Remand by Appellate Court---Scope---Suit of plaintiff was dismissed by Trial Court, but the Appellate Court set aside order of Trial Court and after reframing certain issues, remanded the case to the Trial Court---Validity-----Both parties were aware of the grounds of the defence and it was not the case of either party before the Appellate Court that due to defective framing of issues by the Trial Court, their rights were prejudiced---Even if it was presumed that the issues were required to be reframed, that by itself was not sufficient to remand the matter to the Trial Court particularly keeping in view that factum of pendency of litigation for a long time---Appellate Court, while remanding the matter, should have kept in mind the provisions of Order XLI, Rules 23, 24 and 25 of the C.P.C.---According to Order XLI Rule 24 of the C.P.C.; when evidence on record was available, the Appellate Court may determine the case finally---Prima facie, sufficient evidence was available on record to decide the issues even if the same were reframed---If it was presumed that evidence was required to be taken, then instead of proceedings under Order XLI, Rule 23, of the C.P.C., the Appellate Court should have acted under provisions of Order XLI, Rule 25, C.P.C. by directing the recording of additional evidence by the Trial Court---High Court modified judgment of Appellate Court and referred to the Trial Court to record evidence of the parties on issues cast by the Appellate Court and directed that after recording of said evidence, the same shall be returned to the Appellate Court with the Trial Court's finding thereon and appeal of the plaintiff shall be decided after receipt of said evidence---Appeal was allowed, accordingly.

Inayat Ullah Chaudhary for Appellants.

2012 Y L R 1616

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

RAZZAQ AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.1321, 1318, 1319 Criminal Revision No. 869 and Murder Reference No.638 of 2006, heard on 6th March, 2012.

(a) Criminal trial---

----Benefit of doubt---Scope---If prosecu-tion cannot prove its case beyond reasonable doubt, accused in such like cases is entitled to benefit of the same not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case against accused persons was fully established through evidence of two eye-witnesses, who stood test of lengthy cross-examination but their evidence could not be shattered as far as role of accused was concerned---Evidence of eye-witnesses was supported by medical evidence furnished by doctors, as well as by medico legal report, post mortem report and pictorial diagrams---Prosecution case against both accused was further corroborated by recoveries of hatchets from possession of accused, reports of Chemical Examiner and Serologist---Prosecution proved its case against both the accused beyond shadow of any doubt---Some mitigating circumstances however were found in favour of accused as cause of death of deceased was cumulative effect of injuries attributed to accused as well as to their co-accused, since acquitted---Prosecution alleged specific motive but failed to prove the same, which had created doubt to the extent of reasons due to which occurrence took place---Accused were entitled to benefit of doubt as an extenuating circumstances while deciding their question of sentence as well---High Court maintained conviction of accused under section 302(b), P.P.C. but altered death sentence to imprisonment for life---Appeal was allowed accordingly.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1160 rel.

Mian Aftab Farrukh for Appellants (in Criminal Appeal No.1318 of 2006).

Rai Bashir Ahmad for Appellants (in Criminal Appeal No. 1319 of 2006) and Razzaq Ahmad (in Criminal Appeal No.1321 of 2006).

M. M. Iqbal, for Appellants (in Criminal Appeal No.1319 of 2006).

Appellants Nos. 2 to 5 are present in person (in Criminal Appeal No.1319 of 2006).

Ch. Ghulam Mustafa, D.P.-G. for the State.

Allah Bakhsh Gondal, Chaudhry Ghulam Murtaza and Mrs. Nasreen Kausar for the Complainant.

2012 Y L R 1636

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ABDUL WAHAB---Petitioner

versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.2154 of 2009, decided on 29th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c)---Penal Code (XLV of 1860), Ss. 302(b), 324, 337-A(ii), 337-F(i), 337-F(v) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-hashimah, common intention---Suspension of sentence on the ground of statutory delay in decision of appeal---Scope---Contention of accused (petitioner) that three years had elapsed and his appeal had not come up for hearing for no fault of his, and that his role was at par with his co-accused, who had already been admitted to bail on basis of suspension of their sentences---Validity---Concession provided in S. 426(1-A)(c), Cr.P.C, could not be extended to a person who was a desperate or hardened criminal---Statements of one of the prosecution witnesses, in the present case, had revealed that accused initiated the attack and at first instance inflicted four injuries with his "sarya" on the head of the deceased, and such fact was supported by the medico-legal report as well as the post-mortem report which showed the desperation of the accused while committing the offence---No other accused had been nominated for causing head injuries to the deceased---Complainant had also filed a criminal revision, praying for the enhancement of sentences awarded to the accused which was pending in the High Court and was to be taken up with the appeals of the accused and his co-accused---Petition for suspension of sentence was dismissed, in circumstances.

Syed Ijaz Qutab for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General Punjab for Respondent.

2012 Y L R 1650

[Lahore]

Before Malik Saeed Ejaz, J

IESCO, ISLAMABAD through Chief Executive and 2 others---Petitioners

versus

ADVISORY COMMITTEE GOVERNMENT OF PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.2767 of 2004, decided on 3rd June, 2009.

Electricity Act (IX of 1908)---

----S. 24---Constitution of Pakistan, Art.199---Constitutional petition---Laches--Consumer had challenged his electricity bill before the Electric Inspector who referred the matter to the Advisory Committee and the matter was decided in favour of the consumer-----Electricity Supply Company (petitioner) assailed said order on the ground that the Advisory Committee had no jurisdiction as the matter pertained to theft---Validity---Petitioner Company had not raised said objection throughout the proceedings before the Advisory Committee even though they remained in touch with those proceedings---Petitioner company suffered from laches as it was filed after seven months from the passing of the impugned order of the Advisory Committee and there was no justifiable explanation for the said delay----Order of Electric Inspector had not been placed on the file and the Electric Inspector had not been arrayed as a party to the constitutional petition---Constitutional petition was dismissed.

Khalid Zaman for Petitioners.

2012 Y L R 1671

[Lahore]

Before Ch. Shahid Saeed, J

DEFENCE HOUSING AUTHORITY, LAHORE through Secretary---Petitioner

versus

MUHAMMAD AKRAM through Mian Qadeer Ahmed and 4 others---Respondents

Civil Revision No.1234 of 2010, decided on 8th March, 2012.

Civil Procedure Code (V of 1908)---

----O.VI R 17---Specific Relief Act (I of 1877), S. 39---Amendment of pleadings---Scope---Suit for cancellation of document with permanent and consequential relief---Application of the plaintiff for amendment in the plaint was accepted by Trial Court---Contention of the plaintiff was that when the suit was filed, he was in possession of the suit property but during pendency of the suit, he was dispossessed due to which said amendment was sought---Validity---Amendments that change the nature or complexion of the suit or such that introduce a new cause of action could not be allowed, and Trial Court, in the present case, had committed an oversight---Plaintiff had not produced any document to show that he had ever been in possession of the property in dispute---Plaintiff, through the proposed amendment, sought possession of the suit property as a consequential relief and if such amendment was allowed, the suit would be treated as a suit for recovery of possession and the proposed amendment would change the nature of the suit---Fundamental character of the suit including the subject-matter and cause of action could not be allowed to be substituted though the plaintiff's proposed amendment---High court set aside order of Trial Court---Revision was allowed accordingly.

Tariq Masood for Petitioner.

2012 Y L R 1678

[Lahore]

Before Khawaja Imtiaz Ahmad, J

RIAZ HUSSAIN---Petitioner

versus

JUDGE FAMILY COURT, RAWALPINDI and another---Respondents

Writ Petition No.411 of 2012, decided on 15th February, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.7(2), proviso---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of maintenance allowance--- Husband (petitioner) contended that the Family Court had no jurisdiction to adjudicate upon the suit as the wife (respondent) was a permanent resident of place "L" but had filed the suit at place "R"; stating that she was presently residing at place "R"---Validity---Place of residence of the wife, created jurisdiction in the competent court for the types of claims mentioned in S.7(2) of the West Pakistan Family Courts Act, 1964---Procedural technicality, if allowed to rule the choice of forum in family matters, would result in the benefit conferred upon a wife or mother by S. 7(2) of the said Act, in being lost---Statutory intent of second proviso to S.7(2) of the West Pakistan Family Courts Act, 1964, supported the conclusion that the Family Court where the wife was residing, had the jurisdiction to entertain the maintenance suit---Constitutional Petition was dis-missed.

Mst. Saadia Yaqoob v. M. Khalid Karim and others 2011 CLC 146 rel.

Muhammad Iqbal through Special attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 fol.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.7(2), proviso---West Pakistan Family Courts Rules, 1965, R.6---Territorial jurisdiction---Procedural technicality, if allowed to rule the choice of forum in family matters, would result in the benefit conferred upon a wife or mother by the S.7(2) of the said Act, in being lost.

2012 Y L R 1682

[Lahore]

Before Sh. Azmat Saeed C.J. and Nasir Saeed Sheikh, J

DEFENCE HOUSING AUTHORITY, LAHORE through Secretary---Appellant

versus

Lt.-Col.(R) RIAZ AKHTAR and 7 others---Respondents

R.F.A. No.631 of 2010, decided on 19th March, 2012.

Civil Procedure Code (IX of 1908)--

----O.I R.9---Specific Relief Act (I of 1877) S. 8---Suit for possession---Non-joinder of necessary parties---Effect---Suit was decreed by Trial Court---Defendant assailed said order of Trial Court on the ground that the suit was not maintainable for non-joinder of necessary parties---Validity---Suit had been decided by the Trial Court without impleading the necessary parties as was enemurarated in the lists produced by the defendant, and without affording reasons for such default---Order of Trial Court affected more persons than the defendant---High Court set aside order and decree of Trial Court and remanded the suit to Trial Court with the direction to implead the necessary parties, and decide the suit afresh---Appeal was disposed of, accordingly.

Tariq Masood for Appellant.

Jahangir A. Jhoja for Respondent No.6.

2012 Y L R 1686

[Lahore]

Before Nasir Saeed Sheikh and Ch. Shahid Saeed, JJ

SARDAR ALI and 3 others---Applicants

Versus

TEHSIL MUNICIPAL ADMINISTRATION through Tehsil Nazam---Respondent

Revision Application No.5-C 2007, in C.M. No.1056-C of 2002 in Civil Revision No.2732 of 1994, and C.M. No.11508 of 2010, decided on 23rd January, 2012.

Civil Procedure Code (V of 1908)---

----Ss.114 & 12(2)---Limitation Act (IX of 1908), Art. 162---Review application---Limitation---Original civil jurisdiction of High Court---Scope---Applicants sought review of order passed by High Court in application under S. 12(2), C.P.C---Validity---Application under S. 12(2), C.P.C. could not have been moved before any other court, therefore, High Court for the purpose of setting aside order exercised its "original civil jurisdiction" and passed order dated 1-11-2006---Applicants moved review application for review of order dated 1-11-2006 and were therefore, under obligation to institute review application within a period of 20 days as prescribed in Art.162 of First Schedule of Limitation Act, 1908---Applicants instituted review application on 16-2-2007 for review of order dated 1-11-2006, which application was barred by time and liable to be dismissed---Review application was dis-missed in circumstances.

Sh. Naveed Shahryar for Applicants.

Sami Durrani for TMA.

Allah Bukhsh Gondal for Applicants (in C.M. No.11508 of 2010).

Date of hearing: 12th December, 2011.

2012 Y L R 1694

[Lahore]

Before Mehmood Maqbool Bajwa, J

JUNAID IQBAL BUTT---Petitioner

Versus

MUHAMMAD BABAR SHAHZAD QADRI---Respondent

C.R. No.1143 of 2009, decided on 23rd January, 2012.

Limitation Act (IX of 1908)---

----Art.159----Civil Procedure Code (V of 1908) O.V, R 16 & O.XXXVII, Rr.2 & 3---Suit for recovery---Non-delivery of copy of plaint with the service/summons---Effect---Application of the defendant for leave to appear and defend the suit was dismissed by Trial Court on the ground that under Article 159 of the Limitation Act, 1908; said application was not made within the statutory period of ten days from the date of service---Contention of the defendant was that copy of the plaint, as per report of the Process Server, was not delivered to the defendant---Validity---Report of the Process Server was silent on whether the copy of the plaint was appended with the summons---Mere endorsement on the leaf of summons, in the absence of report of Process Server regarding delivery of copy of plaint , by itself ,would not be sufficient to presume that the copy of the plaint was ever delivered to the person whose service was procured---Period of ten days would, therefore, not be reckoned from the date of service---Defendant would be unable to know the nature of suit if copy of plaint was not delivered to him and therefore, there would be no application of Article 159 of the Limitation Act, 1908---High Court set aside order of Trial Court--Revision was allowed, accordingly.

Abdul Karim v. Nazir ahmad PLD 1998 Lah. 163 ref.

Khurshid Alam v. Al-Khair Gadoon Ltd. through Legal Director 2003 YLR 2583; Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252; Taj Ali Khan v. Haji Muhammad Ali 2003 YLR 1130 and Muhammad Riaz v. Syed Ibrar Shah 2007 MLD 1613 ref.

Agha Abdul Hassan Arif for Petitioner.

Shahid Anwar Shehzad for Respondent.

2012 Y L R 1703

[Lahore]

Before Malik Shahzad Ahmad Khan, J

IBRAR HUSSAIN BUKHARI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE LAHORE and 3 others---Respondents

Writ Petition No.18373 of 2008, decided on 8th February, 2012.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan Art.199---Constitutional Petition---Suit for recovery of maintenance allowance for minor---Suit was decreed concurrently by courts below---Contention of the husband was that the quantum of the maintenance allowance was excessive, and that the annual increase in the same at the rate of 25% was exorbitant---Validity---Documents submitted before the Trial Court showed that the husband was a wealthy man and keeping in view the status of the parties as well as the fact that the minor was a special child, there was no illegality in the judgment of the courts below to the extent of the quantum of the maintenance allowance---Annual increase in the said maintenance allowance at the rate of 25% was excessive, and no solid grounds for the same were mentioned in the impugned judgment---High Court modified the annual increase in the maintenance allowance to the extent of 10%---Constitutional petition was disposed of accordingly.

PLD 2009 SC 760 rel.

Malik Muhammad Ashhab for Petitioner.

Shahid Bilal Hassan for Respondents Nos.3 and 4.

2012 Y L R 1709

[Lahore]

Before Nasir Saeed Sheikh, JJ

MUHAMMAD MUSHTAQ BHATTI---Appellant

Versus

QAMAR JAVED and 2 others---Respondents

S.A.O. No.37 of 2011, decided on 19th March, 2012.

West Pakistan Urban Rent Rest-riction Ordinance (VI of 1959)---

----S.13---Ejectment of tenant on ground of bona fide personal need of landlord---Ejectment petition was allowed concurrently by the courts below---Contention of the tenant (appellant) was that the ejectment petition was not based on good faith and was made with the ulterior motive of enhancing the rent---Validity---Contents of cross-examination and replies given by the tenant showed that the tenant wanted to set a price for vacating the premises in question in the form of "twenty years goodwill" which was malafide conduct---Bona fide need of the landlord had been established on the record and he was fully entitled to have a choice of his own regarding the suitability of shop for running his business---Tenant, whose period of tenancy had expired did not have an absolute right to remain in possession of the property after the expiry of the term fixed by lease agreement---Statement on oath or in the form of an affidavit was sufficient to prove the bona fide need of a landlord qua the subject property of ejectment proceedings---Ejectment orders were passed in accordance with law---Appeal was dismissed.

Muhammad Sadiq v. Mst. Maryam Bibi 1975 SCMR 111; Haji Muhammad and others v. Muhammad Rafique and another 1980 SCMR 2 and Sardar Khan v. Riaz Ahmad and others 1986 SCMR 1981; Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel.

Sh. Khurshid Iqbal for Appellant.

Arshad Iqbal Tarar for Respondent.

2012 Y L R 1714

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SULTAN---Petitioner

Versus

NOOR MUHAMMAD and others---Respondents

Civil Revision No.252 of 1998/BWP, heard on 4th October, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs filed suit that they were legal heirs of deceased husband of vendor female who sold 'Ahata' in dispute to defendant vendee---Defendant had purchased suit 'Ahata' through registered sale-deed from the female---Mutation in favour of vendor female about conferment of proprietary rights on the basis of registered transfer deed by Municipal Committee was on record---Said mutation was sanctioned on the basis of registered document and through that document the rights of disputed 'Ahata' were conferred to said vendor female and not to her husband of whose the plaintiffs claimed to be legal heirs---Proprietary rights were granted to her even after nine years of the death of her husband---Lady sold said Ahata in favour of the defendant through registered sale-deed and mutation on basis of said sale-deed was sanctioned---Proprietary rights were transferred in favour of owner/vendor and registered deed through which proprietary rights were granted to her had not been challenged by the plaintiffs in their suit---When the document on the basis of which mutation was sanctioned in favour of the vendor had not been challenged, sale mutation in favour of the defendant also could not be challenged---Said mutation was not an inheritance mutation of deceased husband of the vendor---Suit filed by the plaintiffs was misconceived---Even if any initial allotment was made in favour of deceased husband of the vendor, that remained just an allotment till he breathed his last and his widow fulfilled all the conditions and then proprietary rights were conferred upon her---Appellate Court below was not justified in deciding appeal in favour of the plaintiffs, which was result of misreading and non-reading of evidence brought by the parties on the record---Impugned judgment and decree passed by Appellate Court, were set aside and suit filed by the plaintiffs was dismissed with costs.

Ch. Riaz Ahmad for Petitioner.

Muhammad Ibrahim Khan for Respondents.

Date of hearing: 4th October, 2011.

2012 Y L R 1718

[Lahore]

Before Amin-ud-Din Khan, J

Mst. ZAHOOR ELLAHI and others---Petitioners

Versus

ADDL: COMMISSIONER (R) and others---Respondents

Writ Petitions Nos.5292 and 6170 of 1998/ BWP, heard on 16th June, 2011.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) S. 3---Constitution of Pakistan, Art. 199---Constitutional Petition---Petitioners assailed orders of the Settlement Commissioner whereby their entitlement to land was cancelled and allotment was made to the respondent subject to his entitlement---Contention of the petitioners was that they being in possession of the land since 1972; they had a right to purchase the land and such right was not taken into consideration by the Authorities---Validity---After repeal of Settlement Laws, if any claim was pending, that claim now could not be settled---Petitioners being in possession of the land since 1972 were declared entitled to retain the land and Settlement Department was directed to process entitlement of petitioners in accordance with S.3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Constitutional petition was allowed, accordingly.

Raja Muhammad Sohail Iftikhar for Petitioners.

Naveed Khalil Chaudhry A.A.-G., and Ch. Parmoon Bashir for Respondents.

Date of hearing: 16th June, 2011.

2012 Y L R 1722

[Lahore]

Before Sh. Azmat Saeed C.J. and Nasir Saeed Sheikh, J

LAHORE STOCK EXCHANGE (GUARANTEE) LTD. through Company Secretary and 2 others---Appellants

Versus

Haji IJAZ AHMAD MIRZA---Respondent

R.F.A. No.854 of 2010, decided on 21st February, 2012.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Contract Act (IX of 1872), S. 10---Suit for declaration and specific performance of lease agreement---Lease agreement containing a clause regarding renewal of lease on expiry of 11 months term on 31-7-2008 for another two terms of same duration, if both parties mutually agree thereto---Written notice sent to defendant on 5-6-2009 requesting him to vacate premises by 25-7-2009 as plaintiff was not willing to renew lease for further term of 11 months---Defendant's plea that addition of such clause in agreement was itself a mutually consenting step taken by parties for renewal of lease for further two terms after expiry of initial term on 31-7-2008---Validity---Defendant did not claim that any further agreement of renewal was executed between the parties extending term of lease for further two periods of 11 months each---Parties could not be forced to enter into an agreement---Agreement or contract, if made by parties with free consent, would attain status of an enforceable contract---Issuance of such notice to defendant was sufficient to establish that plaintiff had not intended to continue lease after expiry of 11 months term ending by 31-7-2009---Term "renewable" as used in lease agreement would not be construed as "to have been renewed"---Lease by virtue of such clause would not stand automatically renewed for another two terms after expiry of its initial term---Suit was decreed in circumstances.

Abid Aziz Sheikh for Appellants.

Mian Sarfraz ul Hassan for Respondent.

Date of hearing: 21st February, 2012.

2012 Y L R 1729

[Lahore]

Before Shahid Waheed, J

SARFRAZ AHMED---Petitioner

Versus

IFTIKHAR AHMAD---Respondent

Civil Revision No.3460 of 2010, decided on 17th April, 2012.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Right of pre-emption---Burden of proof---Such right being a feeble right, thus, pre-emptor would be bound to establish his superior right and perform and fulfil required Talbs meticulously---Failure of pre-emptor to do so would deprive him of success in getting a pre-emption decree.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 7---Pre-emption suit--- Plaintiff claimed to be Shafi Khalit and Shafi Jar---Revenue Record produced by parties showing both of them to be Shafi Khalit and Shafi Jar, but also showing defendant's land to be excess in area to plaintiff's land---Plaintiff failed to prove his superior right of pre-emption qua defendant in circumstances---Suit was dismissed in circumstances.

Sardar Khan v. Gulzar and another 2006 YLR 1203 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S.13(3)---Transfer of Property Act (IV of 1882), S. 3---Qanun-e-Shahadat (10 of 1984), Art.79---"Attestation of notice of Talb-e-Ishhad"---Connotation---"Attestation" and "execution" of a document being two different acts, "attestation" meant to ensure executant to be a free agent, not under pressure or subject to fraud while executing an instrument or such notice---Attesting witness would be a person having witnessed execution of an instrument by its executant and signed same for purpose of attesting signatures of executant thereon---Talb-e-Ishhad would not stand proved, if witness of its notice had neither seen its execution by pre-emptor nor affixed his thumb mark for purpose of attesting thumb mark of plaintiff thereon, but had affixed thumb mark on blank paper and such notice was written in his absence---Principles.

Riaz-ur-Rehman and others v. Muhammad Urus 2005 MLD 1954; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Rai Ganga Pershad Singh and others v. Ishri Pershad Singh and others AIR 1918 PC 3; Banarsi Das and others v. Collector of Saharanpur and others AIR 1936 Allahabad 712 and Zaharul Hussain v. Mahadeo Ramji Deshmukh and others AIR (36) 1949 Nagpur 149 and Imam Ali v. Muhammad Siddique and 3 others 2007 CLC 277 rel.

Musthaq Ahmad Mohal for Petitioner.

2012 Y L R 1744

[Lahore]

Before Muhammad Ameer Bhatti, J

FARRUKH ALTAF and others---Appellants

Versus

MUHAMMAD AFZAL and others---Respondents

R.S.A. No.111 of 2005, decided on 30th March, 2012.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 14---Pre-emption suit---Talb-e-Ishhad, notice of---Issuance of such notice by pre-emtpor through his son/agent holding General Power of Attorney not containing power to make Talb-e-Ishhad except Talb-e-Khasoomat---Validity---Nothing on record to show inability of pre-emptor to make Talb-e-Ishhad---Such General Power of Attorney did not contain any specific words assigning to agent power to make Talb-e-Ishhad on behalf of pre-emptor---Mere holding of General Power of Attorney would not empower attorney to do whatever he likes, rather he would be bound to perform his duties within four corners thereof, otherwise same would not be valid in eye of law Talb-e-Muwathibat and Talb-e-Ishhad being sine qua non for succeeding in such suit, thus, failure thereof would be fatal to right of pre-emption---Requisite Talbs on behalf of pre-emptor could be made only by a validly appointed agent---Person being unable to exercise right of pre-emption could exercise same through his/her guardian---Son would not fall within purview of word "guardian" as used in S. 14 of Punjab Pre-emption Act, 1991---Pre-emptor in General Power of Attorney had not reiterated his previous right of making Talb-e-Muwathibat, which was mandatory to empower and enable agent to pass on information to vendee and court that pre-emptor had already made such Talb on such and such place and date, and at such and such time---Agent could not exercise such personal right of pre-emptor, which was not given to him expressly through general power of attorney---Suit was dismissed in circumstances.

Mst. Hassan Bano v. Wali-ur-Rehman and 2 others 2007 SCMR 1344; Muhammad Raees v. Sabz Ali and others 2011 CLC 1054; Nasib Khan v. Inayat Jan and another 2003 CLC 1336; Muhammad Yaqoob v. Sadaqat and 2 others PLD 2004 Pesh. 226; Mst. Aisha v. Rahim Bakhsh and others PLD 1997 Lah. 649; Salma and another v. Manzoor Hussain and others 1996 CLC 623; Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others 2007 CLC 819; Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Sirajuddin Paracha and 12 others v. Mehboob Elahi and 3 others PLD 1997 Kar. 276; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Muhammad Aslam v. Ahmad Hassan 2000 YLR 3035; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Muhammad Ilyas and others v. Khadim Hussain and others 2006 SCMR 1761; Muhammad Shafi v. Mushtaq Ahmed through legal heirs and others 1996 SCMR 856; Wali Khan v. Noor Ahmad and another 2006 CLC 1715; Muhammad Sultan Khan v. Gohar Aman and another 2006 YLR 2584; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 ref.

Muhammad Raees v. Sabz Ali and others 2011 CLC 1054; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Mian Pir Khan and others v. Haji Malik Amanullah Khan PLD 2007 SC 302 rel.

(b) Interpretation of documents---

----Power of attorney must be construed strictly according to its terms and its words would be formulated accordingly.

Nasib Khan v. Inayat Jan and another 2003 CLC 1336; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 rel.

(c) Interpretation of documents---

----Written instruments would be interpreted in terms stated therein.

(d) Words and phrases---

----"Guardian"---Meaning.

(e) Punjab Pre-emption Act (IX of 1991)---

----S. 14---Word "guardian" as used in S.14 of Punjab Pre-emption Act, 1991---Connotation---Word "guardian" would mean a person having under law or through a legal appointment custody of person of a minor/child or mentally disabled person or his property or both his person and property---Person not having ability to exercise right of pre-emption could exercise same through his/her guardian, but not through his son for not falling within purview of guardian.

Black's Law Dictionary rel.

Taki Ahmed Khan for Appellants.

Inayet Ullah Chaudhry, Ms. Bushra Inayet Ullah Chaudhry, Muhammad Waheed Akhtar Mian and Ch. Allah Ditta for Respondents.

Date of hearing: 2nd March, 2012.

2012 Y L R 1753

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD SHAHBAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.413 and Murder Reference No.194 of 2006, decided on 18th May, 2011.

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

----Ss. 302(b) & 459---Qatl-e-amd and lurking house trespass---Appreciation of evidence---Benefit of doubt---Complainant, husband of the deceased, being a Police Constable was aware of the legal formalities and despite the occurrence having taken place in his house the matter was reported to the police after a delay of five days---Explanation furnished by the complainant for such inordinate delay in the F.I.R. that he remained busy in the treatment of his injured wife till her death, was neither plausible nor convincing---None of the eye-witnesses who were closely related to the deceased, had even cared to lodge the F.I.R.---Presence of eye-witnesses at the scene of occurrence was also belied by the fact that they had not taken the deceased in injured condition to hospital---Recovery of four crime empties from an open place accessible to public after five days of the incident, was doubtful---Crime empties were deposited in the Forensic Science Laboratory after the arrest of accused and recovery of rifle from him, therefore, the positive report of the laboratory was not helpful for the prosecution---Son of the complainant, with whom the accused had a grudge and the matter culminated in the murder of the deceased, was neither cited as a witness, nor he was examined at the trial---Adverse inference, thus, had to be drawn against the prosecution in view of Art.129(g) of Qanun-e-Shahadat, 1984---Co-accused had been acquitted by the Trial Court and appeal against his acquittal had been dismissed by High Court---Although the deceased remained alive for five days after the incident, yet there was no report of the doctor that she was not fit for making statement---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Muhammad Rafique and others v. The State 2010 SCMR 385; Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

(b) Benefit of doubt---

----Nature, value and role of benefit of doubt in law, explained.

Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Muhammad Inayatullah Cheema assisted by Ch. Muhammad Rafique Jathol for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Shahzad Saleem Warraich for the Complainant.

Date of hearing: 18th March, 2011.

2012 Y L R 1765

[Lahore]

Before Ch. Shahid Saeed, J

Mst. AZMAT-E-BIBI---Petitioner

Versus

NOOR MUHAMMAD and 3 others---Respondents

Civil Revision No.2096 of 2001, heard on 19th December, 2011.

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

----Ss. 42 & 9---Suit for declaration and possession of immovable property---Plaintiff, a pardanasheen lady---Suit was dismissed concurrently---Contentions of the plaintiff were that she was an illiterate pardanasheen lady and the defendants, who were her step-brothers, had fraudulently obtained mutation of the suit land and that she had never gifted the suit land to them---Validity---Suit land was allotted to the plaintiff, who was an illiterate pardanasheen lady, against her claim of abandoned land in India, and the defendants had remained in possession of the same and continued taking care of the land and were in possession of the same after the plaintiff lady got married---Plaintiff denied that she ever appeared before any revenue authority to gift the land to anyone, and in such circumstances, the onus to prove the disputed mutation was on the defendants---Patwari who appeared as defense witness stated that on the day of alleged mutation no event worthy to be recorded in the revenue roznamcha had taken place in the area and neither any other report in the roznamcha waqiati regarding disputed transaction had been brought on record---No proof existed that plaintiff had delivered possession of the land to the defendants as a result of the alleged gift mutation which was an essential ingredient of a gift and the record did not speak about any offer made by the plaintiff or acceptance of the same by the defendants---Plaintiff had not put her signatures or thumb impressions on any documents in dispute that showed her willingness to gift the suit land to the defendants---Mutation held evidentiary value but did not create any title in favour of any person until and unless it was proved through cogent evidence---When a transaction was denied by an illiterate pardanasheen lady, the onus to prove such a transaction lay with its beneficiaries and the plaintiff being such a lady was not supposed to have the understanding of the intricate procedure of sanctioning of revenue record and was required to have some independent advice regarding the transfer of her immovable property---Defendants, in circumstances, were required to prove the presence of her husband or some other independent person reliable to her at the time of the alleged gift to prove that she had consulted some trustworthy person before giving the suit land to the defendants---Presence of her stepfather and step-brothers was not sufficient and did not fulfil the requirements of the law as they were the beneficiaries of the said transaction---Concurrent findings of the courts below were set aside and suit of the plaintiff was decreed---Revision was allowed, accord-ingly.

(b) Qanun-e-Shahdat (10 of 1984)--

----Art. 100---Specific Relief Act (I of 1877) Ss. 42 & 9---Presumption of correctness of document when fraud was apparent---Suit for declaration challenging validity of mutation of suit land was dismissed concurrently---Contention of the defendants was that the alleged mutation dated 25-2-1964 was more than 47 years old, and that said documents being more than 30 years old had evidentiary value and could not be set aside---Validity---Mutation of suit land was made through fraud misrepresentation and impersonation---Sanctity was attached to documents aged 30 years or more, but in cases where fraud had been committed, neither said documents would hold sanctity nor limitation would come in the way of justice---Defendants could not derive any benefit from the old age of the alleged mutation under Article 100 of the Qanun-e-Shahdat 1984; when fraud was apparent on the face of the record.

(c) Specific Relief Act (I of 1877)---

----Ss .42 & 9---Suit for declaration and possession of property---Gift---Validity---Mutation---Plaintiff lady had contracted marriage before the sanctioning of the alleged mutation in favour of her step-brothers, and she had her own children at the relevant time; in presence of her own children, plaintiff could not be expected to leave her right in the suit property in favour of her step-brothers---Even if it was supposed that the plaintiff through her stepfather had gifted the property in favour of her step-brothers, presumption would be that it was due to social constraints, coercion and not due to natural love or affection---Revision was allowed.

(d) Islamic jurisprudence---

----Custom---Spending money on nourishing or marriages of children and claiming their property in lieu thereof was entirely against the Injunctions of Islam.

Azmat Ullah Chaudhry for Petitioner.

Muhammad Zeeshan Ali for Respondents.

Date of hearing: 19th December, 2011.

2012 Y L R 1778

[Lahore]

Before Ijaz Ahmad Chaudhry C.J. and Mazhar Iqbal Sidhu, J

NADEEM HUSSAIN---Petitioner

Versus