YLR 2013 Judgments

2013 Y L R 2471

[Sindh Election Tribunal]

Before Dr. Zafar Ahmad Khan Sherwani, Election Tribunal, Sindh

ABDUL RAZZAK---Petitioner

Versus

Syed HAFEEZUDDIN and others---Respondents

Election Petition No.7 and C.M.A. No.18 of 2013, decided on 23rd August, 2013.

(a) Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan, Art.199---Election petition---Petitioner contested election on ticket of Political Party having boycotted election on Polling Day, and his constitutional petition challenging respondent's election dismissed by High Court for not being an "aggrieved person"---Respondent's plea was that petitioner had no locus standi to challenge his election -- Validity---Neither any provision existed in Representation of the People Act, 1976 to prohibit petitioner from filing election petition nor its S.52 provide any such condition---Observation of High Court regarding "aggrieved person" would not debar petitioner from filing election petition---Election Tribunal declined to dismiss election petition.

(b) Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 54, 62 & 63---Civil Procedure Code (V of 1908), S.151---Election Commission of Pakistan Notification 85-Cord dated 17-3-1985---Election petition---Non-supplying to respondent copy of petition along with documents filed therewith before its filing before Election Commission---Validity---Postal receipts produced by petitioner regarding sending of such documents to respondent would not prove that envelope contained such documents, but Election Commission had not called for such proof---Election Tribunal after receiving such petition from Election Commission had issued notices to respondents along with all documents annexed therewith---No provision existed in Ss. 54(b) & 63 of Representation of the People Act, 1976 to require dismissal of petition on ground of non-service of its copy and annexed documents on respondent before its filing---Provision of Cl. (1) of Notification No. 1(7)/85-Cord, dated 17-3-1985 issued by Election Commission pertaining to procedure of trial of election petition was directory in nature---Tribunal declined to dismiss petition on such technical ground.

Muhammad Hashim Siddiqui v. Iqbal Muhammad Ali Khan 2004 YLR 381; Yar Qand Khan v. Taj Bar Khan and others 1987 MLD 84; Engineer Jameel Ahmed Malik v. Shaukat Aziz and others 2007 CLC 1192; Izhar Hussain Khoso v. Mir Faridullah 1999 MLD 3052; Capt. Syed Muhammad Ali v. The Returning Officer, Police Station 19, District Court, Karachi 1999 CLC 2039; Sardar Khan v. Amanullah Khan Masood, SBLR 2011 Sindh 563; Jamil Ahmed v. Mir Mehboob Ali, 2003 YLR 3032; Sardar Akhtar Ali v. Wasim Ahmed 1992 CLC 1437; Dewan Kumar Malhi v. Giaynoomal 1999 CLC 441; Rai Asghar Ali Khan v. RO and others 1999 CLC 565; Haji Amanullah Khan v. Shahzada Tariqullah 1995 CLC 158; Ihsanul Haq v. Dr. Siddique Hussain, 1995 CLC 382; S.M Ayoub v. Syed Yousuf Shah and others PLD 1967 SC 486; Eng. Zafar Iqbal Jhagra v. Khalil ur Rehman 2000 SCMR 250; Abdul Qadir v. Abdul Wassay, 2010 SCMR 1877; Bashir Ahmed Bhabhan v. Shaukut Ali Rajpar, PLD 2004 SC 570; Sheela B Charles v. Qaiser Hussain Saraya. 1996 SCMR 455; Moulana Atta-ur-Rehman v. Al-Haj Sardar Umer Farooq PLD 2008 SC 663 and Asif Manzoor Mohal v. Muhammad Yar Mamoonka, 2007 CLC 368 ref.

(c) Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 55(3) & 63---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition---Verification of petition and its annexed documents on solemn affirmation and not on oath by petitioner being a Muslim---Effect---Verification as required by O. VI, R. 15, C.P.C. would either be on oath or solemn affirmation---Documents attached with petition verified by petitioner at bottom thereof before Oath Commissioner was perfectly in accordance with law---Tribunal declined to dismiss petition on such ground.

Fazal Mabood v. Ihsanullah and 2 others, 1986 CLC 1864; Muhammad Saeed v. Tahir Malik, 2005 CLC 1493; Emirates Bank International Ltd., v. Super Drive 1990 MLD 538; Shaikh Mushtaq Ali v. Khalid Anwar 1999 MLD 1533; Dost Muhammed v. Abdul Razak Rahamoon 2009 CLC 795; Ch. Muhammad Ashraf v. Rana Javed and others 2007 SCMR 34; Malik Umer Aslam v. Sumera Malik and others PLD 2007 SC 362; Haji Ch. Masood Akhtar v. Election Commission of Pakistan 2005 CLC 172; Muhammad Tariq Khan Swati v. Shujah Salam Khan, 2007 CLC 671 and Qaiser Ahmed Sheikh v. Muhammad Tahir Shah, 2005 CLC 1521 ref.

Abdul Salam Thahim v. Returning Officer and others 1998 CLC 250 rel.

(d) Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 55(3) & 63 -- Civil Procedure Code (V of 1908), O. VI, R. 15---Qanun-e-Shahadat (10 of 1984), Art. 55---Election petition---Verification of statement of Counts, Result Sheet and copies of order of High Court annexed with such petition---Scope---Such documents would not require verification under O.VI, R.15, C.P.C. for being public documents and also for not falling within definition of "Annex" or "Schedule" mentioned in S.55(3) of Representation of the People Act, 1976.

Bashir Ahmed Bhabhan v. Shukat Ali Rajpar PLD 2004 SC 570; S.M Ayoub v. Syed Yousuf Shah and others PLD 1967 SC 486; Zafar Iqbal Jhagra v. Khalil-ur-Rehman 2000 SCMR 250; Abdul Qadir v. Abdul Wassay, 2010 SCMR 1877 and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284 rel.

Abid Zubairi for Petitioner.

Syed Ghulam Shabbir Shah for Respondent.

Muhammad Atiq Qureshi for Respondent No.24.

2013 Y L R 15

[Federal Shariat Court]

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

FAISAL NAFEES and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.67/L, 104/L of 2009, Murder Reference No.4/L of 2010 and Jail Criminal Appeal No.2/L of 2011, decided on 12th July, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201, 377 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, causing disappearance of evidence of offence, sodomy, common intention---Appreciation of evidence---Benefit of doubt---Prosecution witness who had furnished last seen evidence, had conveyed the fact seeing the deceased in the company of accused after six days and after recording of the F.I.R.---Said witness had a dubious past and had also been in the employment of Police department from where he was dismissed from service---Said witness at the time of occurrence, was in the employment of brother-in-law of the complainant and maternal uncle of the deceased, his evidence was neither confidence inspiring nor was free from doubt, but was concocted to fill in the gap---Prosecution could not succeed in proving the fact that the deceased was lastly seen by prosecution witness---Prosecution witness before whom accused person had allegedly made extra-judicial confession about their involvement in the crime, despite being paternal uncle of the deceased, did not convey alleged extra judicial confession either to the Police or to the complainant throughout the night, but he reported the same on the next day---Complainant before the Trial Court did not utter a single word about said confessional statement---Person in whose presence accused allegedly made extra-judicial confession had not been produced---All said facts had rendered the alleged extra-judicial confession highly improbable and doubtful---No reliance could be made on said extra-judicial confession for maintaining the conviction of accused person---Recovery memos with regard to allegedly recovered articles were attested by one, who was not produced, but was given up without disclosing any reason---Description of said articles was specially not mentioned in the F.I.R.---Said recovery on the basis of disclosure allegedly made by accused, being weak type of evidence could not be accepted blind-foldedly, having been made after many days---No empty had been produced, nor recovered pistol was got matched from the Forensic Science Laboratory---Offence of sodomy was not proved at all against accused as only material evidence on that question was extra-judicial confession of all accused persons, which had been disbelieved--- Prosecution, in circumstances, had failed to prove the offence of commission of sodomy with the deceased by accused persons---Incident was an unseen occurrence, which remained shrouded in mystery---F.I.R. had been recorded without specifically naming accused persons after six days of occurrence, which otherwise was on the basis of supplementary statement of the complainant on the basis of some information having been received from prosecution witness---Prosecution had failed to prove the guilt of accused persons beyond reasonable shadow of doubt---Benefit of such doubt could be extended to accused, not as a grace but as a right---Conviction and sentence awarded to accused persons by the Trial Court, were set aside, they were acquitted extending them benefit of doubt and were released, in circumstances.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Mehrban v. Muhammad Ramzan and another 2002 SCMR 441; Bashir Ahmad v. Fida Hussain and 4 others 2010 SCMR 495; Muhammad Shafique alias Chuma and others v. State 2008 PCr.LJ 958 and Muhammad Kamran and another v. The State 2003 SCMR 1070; ref.

1995 SCMR 1350; PLD 2002 Lah. 110; 2011 SCMR 1978 and 2012 SCMR 440 rel.

Abdul Sadiq Chaudhary for Appellant (in Criminal Appeal No.67/L of 2009).

Mian Abdul Qayum Anjum for Appellant (in Criminal Appeal No.104/L of 2009).

Allah Rakha for Appellant (in Criminal Appeal No.2/L of 2011).

Sultan Haider Ali Malik for the Complainant.

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

Date of hearing: 12th July, 2012

2013 Y L R 480

[Federal Shariat Court]

Before Rizwan Ali Dodani and Muhammad Jehangir Arshad, JJ

SAIFULLAH KHAN---Appellant

Versus

MUHAMMAD HANIF and 6 others---Respondents

Criminal Appeal No.64/Q of 2003, decided on 12th October, 2012.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.427/ 353/ 186/ 147/ 149--- Criminal Procedure Code (V of 1898), S.417(2-A)---Haraabah, mischief causing damage to amount of fifty rupees, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, rioting, unlawful assembly---Appeal against acquittal---Reappraisal of evidence---Evidence of the complainant was not corroborated by two prosecution witnesses---According to the complainant he was abused and also given slaps by accused persons, but prosecution witnesses had not specified the names of accused persons, and had stated that mob of 30/40 people attacked the complainant and accused after damaging telephone set, ran away from the scene---Prosecution evidence was not only contradictory, but also did not inspire confidence---Trial Court after proper appreciation of evidence, had rightly given the benefit of doubt to the accused persons---Even the damaged telephone set etc. and rifle allegedly snatched by accused persons were neither produced in the court at the time of recording of evidence as case property, nor marked as 'Exhibit' in order to attract the provisions of S.427, P.P.C.---Evidence produced by the prosecution was not sufficient for holding accused persons guilty of causing interference in the performance of official duty by the complainant---No one appeared on behalf of the concerned Department to support the prosecution version, which was very material evidence---Counsel for the complainant, had failed to point out that the judgment of the Trial Court impugned in appeal was either wrong, artificial, shocking, ridiculous, or suffered from mis-reading or non-reading of evidence---Trial Court while passing impugned judgment, neither committed any illegality, infirmity, nor misreading or non-reading of evidence warranting interference in the impugned judgment of acquittal---Appeal against acquittal was dismissed in circumstances.

2010 SCMR 222 and 2009 SCMR 946 ref.

Muhammad Bilal and Babar Bilal for Appellant.

M. Amin K. Jan for Respondents.

Muhammad Sharif Janjua on behalf of Prosecutor-General, Balochistan for the State.

Date of hearing: 12th October, 2012.

2013 Y L R 1109

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

MUMTAZ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.89/L of 2008, decided on 11th January, 2013.

Penal Code (XLV of 1860)---

----S. 377---Criminal Procedure Code (V of 1898), S.345---Unnatural offence---Appreciation of evidence---Sentence, reduction in---Compromise---Accused, who was awarded 7 years' R.I., had already served out more than half of the sentence awarded to him---F.I.R. was lodged after about 7 days from conducting of medical examination of accused and such inordinate delay remained unexplained---Offence under S.377, P.P.C. though was not compoundable, but the compromise effected between the parties could be considered a ground for reduction of sentence---Ends of justice would be sufficiently met, if sentence of accused was reduced from 7 years' R.I. to one already undergone by him---Amount of fine was also reduced from Rs.25,000 to Rs.10,000, in circumstances.

Kashif Nadeem alias Pappi v. The State 1992 PCr.LJ 1799 rel.

Appellant in person.

Complainant in person.

Date of hearing: 11th January, 2013.

2013 Y L R 1129

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

MUHAMMAD AZAM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 44/L and 46/L of 2010, decided on 21st February, 2013.

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

----S.10(2)---Zina bil Rena-Appreciation of evidence---Single witness---Investigating officer conducted raid and arrested both the accused for committing Zina---Trial Court convicted and sentenced both the accused for committing Zina-bil-Raza---Validity --Neither complainant said anything that both accused committed Zina-bil-Raza in his presence nor other prosecution witness said anything to such effect in his statement---Both the accused in their statement only said that accused had developed illicit relations, therefore, convicting accused under S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, merely on the basis of sole uncorroborated statement of investigating officer was unsafe in proper administration of criminal justice---Prosecution failed to bring home charge of commission of offence of Zina-bil-Raza by both accused within the meaning of S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, beyond any shadow of doubt---Shariat Court set aside conviction and sentence awarded to accused by Trial Court and acquitted them of the charge---Appeal was allowed in circumstances.

Riaz v. Station House Officer, Police Station, Jhang City and 2 others PLD 198 Lah. 35 ref.

Usman Mehmood for Appellant (in Criminal Appeal No.44/L of 2010).

Rashid Ahmed Khan for Appellant (in Criminal Appeal No.44/L of 2010).

Zahid Younas, DPP for the State.

Date of hearing: 21st February, 2013.

2013 Y L R 1540

[Federal Shariat Court]

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

MUHAMMAD ASHIQ---Appellant

Versus

Haji ABDUL RAZZAQ and 4 others---Respondents

Criminal Appeal No.12/I of 2011, decided on 5th March, 2013.

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----Ss. 3 & 7---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Offence of Qazf---Appellant filed complaint against the respondent under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 which was dismissed in limine---Respondent filed petition under S.22-A, & 22-B, Cr.P.C. for registration of a criminal case alleging that appellant along with others had committed zina-bil-jabr with her---Said allegation was found false by Local Police during investigation and petition was dismissed as withdrawn---Appellant feeling aggrieved, filed complaint under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, about 21 months after withdrawal of petition filed under S.22-A, & 22-B, Cr.P.C.---Said inordinate delay had indicated some foulplay on part of the appellant---Trial Court finding that requirement of S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 having not been fulfilled, dismissed the complaint---Respondent neither had appeared before the court, nor had made any statement---Petition, though found false by the Police, court did not give positive finding about respondent to be a liar---Respondent did not state in her statement under S.161, Cr.P.C. that appellant had committed intercourse with her---Said admission had not been contradicted/confronted---Various disputes existed between the parties---Impugned well-reasoned order of Trial Court, neither being perverse, arbitrary, nor frivolous, called for no interference by Federal Shariat Court---Appeal was dismissed, in circumstances.

Altaf Hussain v. The State and 3 others 2005 PCr.LJ 758 distinguished.

(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)--

----S. 3(b)(c)---Offence of Qazf---Under S.3(b)(c), Offence of Qazf (Enforcement of Hadd), Ordinance, 1979, it was not qazf to prefer in good faith an accusation of zina against any person to any of those who had lawful authority over that person with respect to the subject-matter of accusation.

Mian Ashfaq Ahmed Sial for Appellant.

Nemo for the State.

Date of hearing: 4th March, 2013.

2013 Y L R 1555

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

Haji AMANAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.17/L of 2008, decided on 14th February, 2013.

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

----Arts. 3, 4 & 11---Penal Code (XLV of 1860), S.322---Import, export, transfer, manufacture or process of intoxicant, qatl-bis-sabab---Appreciation of evidence---Accused was charged under S.322, P.P.C. as well as under Art.11 of Prohibition (Enforcement of Hadd) Order, 1979---Prosecution having failed to prove charge under S.322, P.P.C., accused was rightly acquitted by the Trial Court under S.322, P.P.C.---Evidence on record had established that it was the accused who provided seven bottles of soft drink which subsequently were found containing intoxicant--- Prosecution successfully brought home the charge of providing bottles of soft drink containing intoxicant, which was fully covered by Art.3(b) of Prohibition (Enforcement of Hadd) Order, 1979---Findings of the Trial Court to the extent of convicting accused under Art.3(b) of Prohibition (Enforcement of Hadd) Order, 1979 was unexceptionable.

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

----Arts. 3 & 11---Import, export, transfer, manufacture or process of intoxicant, drinking liable to Tazir---Appreciation of evidence---Accused originally was charged under Art.11 of Prohibition (Enforcement of Hadd) Order, 1979 which had provided maximum punishment of three years' R.I. or with fine---Awarding of sentence of five years' R.I. to accused with fine of Rs.10,000 under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, without alteration of charge, was not permissible---Grievance of accused that he was prejudiced through the impugned judgment was justified---Sentence of five years' R.I. with fine of Rs.10000, as imposed by the Trial Court being without lawful authority, same was altered to three years' R.I. only as provided under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979.

Zafar Iqbal Chohan for Appellant.

Zahid Younas, DPP for the State.

Date of hearing: 14th February, 2013.

2013 Y L R 1576

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

SABIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.318/L of 2004, decided on 10th January, 2013.

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

----S. 16---Enticing a woman with criminal intent---Appreciation of evidence---Allegation against accused was that he knowing that co-accused/female was already married, enticed her away with intention to have illicit intercourse with her, thus committed offence under S.16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Validity---Co-accused though was married, but due to strained relations with her husband she filed suit for dissolution of marriage against him---Said case was decreed and co-accused after completion of Iddat period, with her own will and accord had contracted marriage with accused---Both had been living as wife and husband and gave birth to four children---Decree passed in favour of co-accused was not challenged by her former husband, and same had attained finality---Prosecution had failed to bring charge of enticing or taking away co-accused against accused beyond reasonable doubt---Marriage between accused and co-accused was a lawful marriage having been contracted after passing of decree of dissolution of marriage with her previous husband by court of competent jurisdiction---Accused was acquitted of the charge, in circumstances.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 rel.

Irfan Ali Khan Khosa for Appellant.

Syed Mujahid Hussain Naqvi for the Complainant.

Humayoon Aslam, D.P.G. for the State.

Date of hearing: 10th January, 2013.

2013 Y L R 1589

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

MUHAMMAD YOUSAF alias YOUSAF MASIH---Appellant/Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.7/L of 2013 in Criminal Appeal No.70/L of 2006, decided on 20th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10---Zina-bil-jabr liable to Tazir---Suspension of sentence, petition for---Appeal could not be decided within two years of the conviction of appellant/petitioner---Petitioner, was neither a hardened, desperate, dangerous criminal nor was a previous convict---Petitioner having made out a case for suspension of sentence on statutory grounds in terms of S.426(1-A)(c), Cr.P.C. sentence was suspended and he was directed to be enlarged on bail, in circumstances.

Liaqat and another v. The State 1995 SCMR 1819 rel.

Dr. Muhammad Akmal Saleemi for Appellant/Applicant.

Khalid Masood Sindhu and A.D. Kaholi for the Complainant.

Zahid Younas, DPP Punjab for the State.

Mst. Fozia Bibi Complainant is not present in Court.

2013 Y L R 2026

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Muhammad Jehangir Arshad, JJ

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.145/I of 2006, decided on 31st May, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34 & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, common intention, unnatural offences, kidnapping or abducting in order to subject person to unnatural lust---Appreciation of evidence---Occurrence was an unseen incident and the prosecution mainly relied on the last seen evidence---Complainant made no report to the Police for near about five days after the missing of his son and matter was only reported on the recovery of the dead body of the deceased---Such silence on the part of complainant was beyond one's comprehension---Fact as to why the matter was not reported to the Police immediately, was surrounded in mystery--- Evidence of prosecution witnesses was neither confidence-inspiring, nor so strong so as to connect accused with the commission of offence---Circumstantial evidence was not of such weightage to be considered as sufficient for convicting accused and awarding harsh sentence---After acquitting accused from the charges under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under S.377, P.P.C.; and holding that it was not clear as to who among the three co-accused played role in the actual commission of offence (murder) as prosecution had not assigned any specific role to any of the accused one could not conclude definitely that it was the accused among three accused persons who was exclusively liable for the commission of offence of qatl-e-amd of the deceased---Trial Court was not justified in convicting accused by placing reliance on the last seen evidence of prosecution witnesses which was full of discrepancies as well as doubt benefit of which must go to accused---Trial Court except writing few lines about the evidence of prosecution witnesses, stated nothing while convicting accused by relying upon his finding---Judgment was not recorded separately in the case of juvenile accused, whereas evidence in both the cases was recorded separately---No law existed which would allow the court to rely upon either the judgment or evidence of a case in which accused was neither a party nor tried---Finding of the Trial Court holding that the case of accused was exactly at par with co-accused, therefore was also liable to be convicted under S.302(b), P.P.C., was not legally warranted---Prosecution having failed to prove the charge for commission of murder of deceased, beyond any shadow of doubt, impugned judgment, being not sustainable, was set aside---Accused was acquitted of the charge and was ordered to be released, in circumstances.

Khuda Bukhsh v. The State 2004 SCMR 331; Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Sh. Asghar Ali for Appellant.

Nasir Mehmood Sial, DDPP for the State.

Date of hearing: 30th May, 2013.

2013 Y L R 652

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhary and M. Tabbasum Aftab Alvi, JJ

TALHA SARFRAZ---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 16 others---Respondents

Writ Petition No.530 of 2012, decided on 29th November, 2012.

(a) Pakistan Medical and Dental Council Regulations, 2010---

----R. 9---Conditions for Admission in MBBS and BDS Courses and House Job Regulations, 2010, Rr.4 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Educational institution---Admission in Medical College---Prerogative of Government---Scope---Government had the prerogative to establish Medical Colleges and reserve seats, for admission for different categories---Government was also competent to adopt policies which were essential for day to day business within constitutional framework---Where, however, a case of arbitrary exercise of power by the Government, or a public functionary was made out or violation of statutory Rules was proved, or any policy or executive or administrative order had been issued without any statutory backing, or any contravention was noted in the policy; or order and statutory Rules, then, the court was duty bound to declare such policy and administrative order to the extent of such inconsistency against the statute and without lawful authority---Pakistan Medical and Dental Council was the only statutory body vested with authority to frame policy, criteria for admission for Medical Colleges---Executive Committee was not competent to make its own policy or provide additional qualification in presence of Pakistan Medical and Dental Council Regulations---Conditions formulated in the meeting of Executive Committee being contrary to the Pakistan Medical and Dental Council Regulations, were declared ultra vires of the Pakistan Medical and Dental Council Regulations/Rules, in circumstances.

Aisha Hameed Qadri v. Azad Government and others Civil Review No.6 of 1997; Pakistan Medical and Dental Council v. Ziauddin Medical University and others PLD 2007 SC 323 and Nadir Khan and others v. Principal Khyber Medical College Peshawar and others 1995 SCMR 421 ref.

AIR 1984 SC 1543; AIR 2009 SC 2322 and 2012 SCMR 1841 rel.

(b) Pakistan Medical and Dental Council Regulations, 2010---

----Regln. 9---Conditions for Admission in MBBS and BDS Courses and House Job Regulations, 2010, Reglns.4 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Admission in Medical College---Candidates had been granted admission by the Admission Committee, whereas petitioner had been refused the same on the ground that he could not obtain merit position against the quota of 'Overseas Kashmiries'---Petitioner had prayed that by declaring act of authorities capricious, mala fide and violative of guidelines, admission of candidates be declared to have been made without lawful authority---Validity---Under Pakistan Medical and Dental Council Regulations, 2010, for admission against the category under the heading of "Overseas Students", the only condition was that a student should have passed an examination equivalent to Intermediate level of Pakistan from a foreign education system---Only condition was that they were Pakistan National, and had passed their examination after studying abroad from a foreign education system---While reserving seats for "Overseas Kashmiries' intention was to reserve the seats for Overseas Kashmiris' children---All the students/respondents, who had been admitted against the Overseas Kashmiries children seats, except one, were not in possession of dual nationality---Resident work permit issued in favour of the parents of the respondents, were not substitute of dual nationality, because same were issued for a limited period and purpose and would remain valid up to certain time---In the admission policy issued for candidates seeking admission against the category of Overseas Kashmiries' children, were required to send their applications along with passport, visa and equivalence certificate, which was sine qua non for admission in question, which condition could not be relaxed---Where admission was granted in violation of the policy and statutory Rules, same could not be saved and no benefit could be extended to the students, who had illegally been admitted on the ground that relevant academic session had expired---Admission of candidates made against the overseas seats, being illegal, was declared to have been made without lawful authority and was of no legal consequence---Petitioner, being not in possession of dual nationality, his request for direction for admission was rejected.

Fozia Hussain Abbasi v. The Nomination Board and 4 others 1995 CLC 1761; Umar Ahmad Ghuman's case PLD 2002 Lah. 521; Huma Rafiq Khan v. Secretary of Finance and Economic Affairs, Government of Islamic Republic of Pakistan 1988 MLD 2562 and Rahat Saeed Bokhary v. Aisha Hameed Qadir and another 1997 MLD 218 rel.

(c) Interpretation of statutes---

----Achievement of object of statute---Principles---Courts were not only compe-tent to interpret the language of an Act in order to give effect to the manifest intention of the Legislature, but were also duty bound to supply the omission with a view that the object of an enactment be achieved rather defeated.

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

----Art. 114---Rule of acquiescence and estoppel---Scope---Rule of acquiescence and estoppel was attracted against a person who had knowledge about an illegality; and did not challenge the same within reasonable time---Principles of the acquiescence and estoppel would hardly come in the way of a bona fide contestant who was in possession of a legal claim.

Umar Hayyat v. Azad Govt. of The State of Jammu and Kashmir through Chief Secretary and 3 others 1999 PLC (C.S.) 93 rel.

Sadaqat Hussain Raja for Petitioner.

Sardar M.R. Khan, A.A.-G. for Respondents.

Kh. Attaullah Chak for Respondent No.11.

Khalid Yousaf Chaudhary for Respondent Nos. 8 to 10 and 16.

Nemo for remaining Respondents.

2013 Y L R 2271

[High Court (AJ&K)]

Before Abdur Rasheed Solehria and Sardar Abdul Hameed Khan, JJ

Malik MUDASAR---Applicant

Versus

The STATE through Advocate-General Azad Jammu and Kashmir and another---Respondents

Criminal Miscellaneous No.51 of 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406, 408, 409, 420, 468, 469 & 471---Criminal breach of trust, cheating, forgery, using as genuine a forged document---Bail, refusal of---Allegation against accused was that he mis-appropriated the amount of account holders in the Bank along with other accused persons; embezzled the heavy amount, and issued the deposit slip with his signature along with co-accused---Matter was thoroughly investigated---Signatures affixed on deposit slip were of accused according to hand-writing expert---Supreme Court while dismissing appeal of accused had held that accused was not entitled to concession of bail and that his trial be concluded in shortest possible time---All points agitated by counsel for accused, needed deeper appreciation of evidence and merits of the case, which was not permissible under law at bail stage---Bail application of accused was rejected, in circumstances.

1991 SCMR 599 ref.

Sadaqat Hussain Raja for Applicant.

Kh. Ansar Ahmed for the Complainant.

A.A.-G. for the State.

2013 Y L R 2524

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MAQBOOL HUSSAIN---Appellant

Versus

ABDUL JABBAR and another---Respondents

Civil Appeal No.42 of 2012, decided on 26th April, 2013.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Closure of evidence---Plaintiff was ordered to produce evidence who did not file list of witnesses---Trial Court granted more than eighteen opportunities to the plaintiff but he failed to produce evidence---Courts below passed speaking orders---Negligent prosecution of the plaintiff did not entitle him any more concession---Impugned judgment was drawn in view of all the legal provisions which warranted no interference of the High Court---Appeal was dismissed.

Muhammad Najeeb Raja for Appellant.

Sardar Ishtiaq Ahmed Khan for Respondents.

2013 Y L R 2570

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

SHAHID AZIZ and 13 others---Petitioners

Versus

CUSTODIAN EVACUEE PROPERTY AZAD JAMMU AND KASHMIR and 12 others---Respondents

Writ Petition No.24 of 2004, decided on 2nd May, 2013.

Azad Jammu and Kashmir Administration of Evacuee Property Act (XII of 1957)---

----S.18-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---S.44---Writ petition---Allotment of land---Findings of facts recorded by Tribunal of exclusive jurisdiction---Custodian of Evacuee Property had recorded findings of facts that allotment of property in dispute was made in favour of respondents---Custodian had dismissed the application of petitioner for cancellation of allotment---Validity---Findings of facts recorded by the Custodian being a Tribunal of exclusive jurisdiction which were ordinarily sacrosanct and no exceptional circumstances were involved in the case, High Court, in writ jurisdiction, could not embark upon an inquiry of facts like omission to sue and commission of fraud--Writ petition was dismissed.

1999 YLR 1253 rel.

1994 MLD 2195; 1984 CLC 2080; PLD 1981 AJK 21; 2001 CLC 1149; 2011 CLC 1594 and 2008 CLC 1570 ref.

Khalid Mahmood Khokhar for Petitioners.

Raja Raffiullah Sultani for Respondents.

2013 Y L R 2636

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MAHFOOZ KHAN---Applicant

Versus

S.S.P., KOTLI and 3 others---Respondents

Application No.9 of 2012, decided on 4th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249-A---Penal Code (XLV of 1860), Ss.418, 420 & 34---Cheating and dishonestly inducing delivery of property---Common intention---Quashing of F.I.R., application for---Record had revealed that applicant/accused and respondent/ complainant had civil litigation between them, and that they had arrived at a compromise---When an alternate remedy was available, then inherent powers of High Court under S.561-A, Cr.P.C., should not be exercised---Offences mentioned in the F.I.R., were triable by a Magistrate First Class, and accused had got a remedy to apply to the competent Magistrate under S.249-A, Cr.P.C.---High Court, though had got powers under S.561-A, Cr.P.C., but exercise of power would be a direct interference in domain of prosecution agency and the Magistrate--Criminal and civil courts could proceed with the matters side by side; and they were required to decide the case before the court in accordance with evidence produced by the parties before it, without being influenced by any finding of a fact by other court.

PLD 1991 Pesh. 121; 1991 PCr.LJ 963; 1995 PCr.LJ 980; 2000 PCr.LJ 1734; PLD 1986 FSC 10; 2009 YLR 438 and 2009 YLR 1004 ref.

2009 YLR 1004; 2009 YLR 438 and PLD 1986 FSC 10 rel.

Raja Muhammad Sagheer Khan for Applicant.

Ch. Abdul Razzaq, Additional Advocate-General for the State.

Rafi-Ullah Sultani for Respondent.

2013 Y L R 2786

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL JABBAR---Petitioner

Versus

KHADAM HUSSAIN and another---Respondents

Criminal Revision No.3 of 2012, decided on 26th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Principle---Accused for whom respondent stood surety having absconded, Magistrate confiscated surety bond as a whole---Surety, assailed the order of Magistrate before the Sessions Judge who modified order passed by the Magistrate and reduced forfeited amount from Rs.50,000 to Rs.30,000---Validity---While forfeiting the surety bond under S.514, Cr.P.C., a balance was necessary---Present was a case where the principle of balance between too much 'severity' and too much 'leniency', was applicable, because absconded accused had appeared before the court to face the trial and reduced amount of surety bond had been deposited by the surety in the Treasury---Order passed by Sessions Judge being proper and legal warranted no interference by High Court.

PLD 1997 SC 267; 2002 PCr.LJ 1415; 2012 PCr.LJ 1108; Abdul Rehman and another v. Robkar-e-Adalat 2005 PCr.LJ 1514; Muhammad Asghar and another v. Muhammad Shafique 1995 SCR 141 and Faizullah Khan and others v. Robkar-e-Adalat and another 1999 PCr.LJ 861 ref.

Hafiz Fazal-ur-Rehman Dar for Petitioner.

Muhammad Ayub Sabir for Respondent No.1.

Assistant Advocate General, for the State.

2013 Y L R 295

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD ARIF---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and 4 others---Respondents

Writ Petition No.69 of 2012, decided on 31st May, 2012.

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

----S. 27---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Land acquisition---Non-payment of compensation to the affectee---Petitioner's land was acquired by Development Authority and it was stated in the Award that petitioner would be compensated vide allotment of a plot in his favour within a period of six months---Petitioner contended that despite lapse of two years, no compensation had been paid to him and prayed that Development Authority be directed to pay compensation to him---Development Authority contended that acquisition record had taken a long time to be prepared but was near completion---Validity---Development Authority's stance on the matter was feeble , ridiculous and a deception---High Court directed Development Authority to provide compensation to the petitioner for his acquired land along with all benefits which had already been extended to equally placed persons; within a period of one month---Constitutional petition was allowed, in circumstances.

Aziz-ur-Rehman Zia for Petitioner.

Haseeb Muhammad Chaudhry for Respondents.

2013 Y L R 311

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Mir LAEEQUE SHAH and others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman ---Respondent

Writ Petitions Nos.2044, 1141 of 2011 and 2051 to 2058 of 2009, decided on 30th May, 2012.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional Petition--- Development Authority---Allotment of plots to employees on deputation---Cut-off date for allotment of plots to employees---Petitioners served on deputation in the Development Authority and contended that they had been denied the right of allotment of plots; that other similarly placed persons had been extended such benefit/right that the cut-off-date, whereby only those deputation employees were entitled to allotment who were serving Development Authority as of that date was illegal---Validity---Petitioners served at the Development Authority much prior to the cut-off date for allotment of plots---Benefit of allotment of plots could not be extended invariably to all employees, whether regular or on deputation, unless they fulfilled the prescribed criteria---Contentions of the petitioners, if accepted, would mean that all employees on deputation who served at the Development Authority in different cadres during past decades would become entitled to allotment of plots---By providing a cut-off date, in fact, anomaly of a situation had been avoided, which was based on reasonableness and a standard of rationale---Petitioners could not pray for equal treatment when it was their case that they had left the Development Authority much prior to the cut-off date---Constitutional petition was dismissed, in circumstances.

Writ Petition No.760 of 2000; Writ Petition Nos. 299, 498 of 1998; Writ Petition Nos. 3041, 3579 of 2001, 588, 589, 1071 of 2002 and 790 of 2003 and CPLA Nos. 741, 742, 743 and 744 of 2003 rel.

Malik Muhammad Nawaz, Sh. M. Khizar-ur-Rashid and Syed Asghar Hussain Sabzwari for Petitioner.

Atta Ullah Hakeem Kundi for Respondents Nos. 1 and 2.

Ms. Shahina Akbar for Respondent No.3.

Date of hearing: 27th April, 2012.

2013 Y L R 626

[Islamabad]

Before Iqbal Hameed-ur-Rahman, C.J.

Syed AMIR JALALI---Petitioner

Versus

The STATE and another---Respondents

Bail Petition No.651 of 2012, decided on 10th December, 2012.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Signatures on cheque admitted---Abscondance of accused for considerable period---No mala fide on part of complainant---Effect---Accused had allegedly handed over a cheque to the complainant, which was dishonoured on presentation before the Bank---Accused was nominated in the F.I.R. with a specific role of handing over cheque to complainant---Signatures on cheque in question were admitted by accused---Accused had taken the ground that his cheque book was stolen by the complainant, but he had also lodged a ruptt with the police wherein he claimed that he lost/misplaced his cheque---Copies of cheque in question and dishonouring slip were available with the prosecution which, prima facie, connected accused with commission of alleged offence---Accused remained a proclaimed offender for a considerable period as such, his conduct did not entitle him to bail---No mala fide or ill-will appeared on part of complainant to falsely involve accused---Although present case was not hit by prohibitory clause of S. 497(1), Cr.P.C, but in such cases grant of bail in every case was not a rule of universal application and each case had to be dealt with on its own facts and circumstances---Bail application of accused was dismissed in circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem Dar 2011 SCMR 1708; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Kashif Khan v. The State 2009 PCr.LJ 1418; Shahzad Ahmed v. The State through FIA, Islamabad 2010 SCMR 1221; Naveed Maqsood v. The State 2012 YLR 674 and Wajid Aman v. The State and another 2012 MLD 799 ref.

Ijaz Ahmed v. Muhammad Aslam and others 2009 PCr.LJ 1140 and Aamir Hussain v. The State and another 2011 PCr.LJ 265 rel.

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

----S. 497---Bail---Evidence, assessment of---Scope---For deciding bail application only tentative assessment of evidence was required and same could not be appreciated deeply.

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

----S. 497(1)---Bail, right of---Scope---Offence not falling within prohibitory clause of S. 497, Cr.P.C---For such offences grant of bail to an accused in every case was not a rule of universal application and each case had to be dealt with on its own facts and circumstances.

Ijaz Ahmed v. Muhammad Aslam and others 2009 PCr.LJ 1140 and Aamir Hussain v. The State and another 2011 PCr.LJ 265 rel.

Atique-ur-Rehman Siddiqui for Petitioner.

Tariq Mahmood Jahangiri, Deputy Attorney-General for the State assisted by Mr. Liaquat Ali Qasim for the Complainant.

Ishfaq A.S.-I.

2013 Y L R 679

[Islamabad]

Before Iqbal Hameed-ur-Rehman, C.J.

MAKHMOOD HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.503-B of 2012, decided on 31st October, 2012.

Criminal Procedure Code (V of 1898)

----S. 497---Penal Code (XLV of 1860), Ss.302, 452, 337-A(ii)/337-F(i)/34---Qatl-e-amd, house-trespass after preparation for hurt, shajjah-i-mudihah, ghayr-jaifah-damiyah, common intention---Bail, refusal of---Ground of statutory delay in con-clusion of trial---Possibility of expeditious conclusion of trial---Effect---Accused contended that he was behind bars for the last two years, five months and nine days; that he had only sought a few adjournments on the ground of compromise, and that delay in conclusion of trial was not occasioned by him---Prosecution contended that accused sought as many as 19 adjournments, as such, delay in conclusion of trial could not be attributed only to the prosecution, and that adjournments sought by accused for effecting compromise was only a delaying tactic---Validity---Order sheets of Trial Court showed that delay in conclusion of trial could not be attributed solely to the prosecution---Accused party was also not absolved from causing delay in conclusion of trial---Trial had commenced and could be concluded in an expeditious manner by the Trial Court, therefore, exercising discretionary relief of granting bail to accused was to be desisted---Statutory ground for relief of bail could not be pressed into service in the present case---Bail application of accused was dismissed with a direction to Trial Court to conclude the trial within a period of three months.

Sabir Hussain v. The State 1980 PCr.LJ 323; Panjal v. The State 1990 PCr.LJ 2051; Darya Khan v. Shamman and 2 others 1984 PCr.LJ 1301 and Muhammad and 3 others v. The State 1997 MLD 1576 ref.

Ch. Abdul Aziz for Petitioner.

Tariq Mahmood Jahangiri, Deputy Attorney-General for the State assisted by Raja Rizwan Abasi, for the Complainant.

Anar Lak S.-I.

2013 Y L R 968

[Islamabad]

Before Riaz Ahmed Khan, J

MUHAMMAD RAMEEZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.712/B of 2012, decided on 7th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 34 & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, ghayr-jaifah-badiah--- Bail, refusal of---Deceased dying due to fire shots made by co-accused---Plea that accused had only been charged for making aerial fire shots during the occurrence---Validity---Accused and co-accused shared common intention---Allegation of aerial firing had to be seen in the light of the main offence---Making of aerial fire-shots was in fact to facilitate the commission of main offence and therefore could not be seen in isolation---Accused was prima facie involved in the main offence---Occurrence took place in day-light---All accused were assigned specific roles---Challan had already been submitted in court against accused---Bail petition of accused was dismissed in circumstances.

Wasiq Hussain Malik for Petitioner.

Raja Rizwan Abbasi for the Complainant.

Zahoor Awan, Standing Counsel Anar Luk S.I. with record for the State.

2013 Y L R 988

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Mst. FAIZ BIBI---Petitioner

Versus

Doctor SHAUKAT KIANI and others---Respondents

P.S.L.A. No.6 of 2011, decided on 26th November, 2012.

Penal Code (XLV of 1860)---

----Ss.420, 468, 471---Criminal Procedure Code (V of 1898), Ss. 249-A, 417 (2)---Cheating, preparation and use of forged documents---Leave to appeal against acquittal---Civil suit, pendency of---Complainant filed private complaint against accused persons but Trial Court acquitted them in exercise of powers under S.249-A, Cr.P.C., on the ground that original sale agreement was not on record and civil suit was also pending in civil court---Validity---Police should have investigated genuineness of sale agreement and receipt of payment but it was not done and at such time when civil suit was already pending, no finding could be given which might cause prejudice to case of either party---Order passed by Trial Court was that of acquittal of accused persons and had no bearing on merits of civil suit, because issues would be decided on the basis of evidence produced before civil court having its own procedure of proving/ disproving documents---Order passed by Trial Court did not warrant interference and High Court declined to grant leave to appeal---Petition was dismissed in circumstances.

M. Arshad Mehmood Khan for Petitioner.

Raja Rizwan Abbasi for Respondents.

Respondent No.1 in person.

2013 Y L R 1079

[Islamabad]

Before Muhammad Anwar Khan Kasi and Shaukat Aziz Siddiqui, JJ

ABDUL SHAKOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.371 and Murder Reference No.52 of 2008, decided on 5th March, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Statement of both the eye-witnesses, with regard to number of fire shots on the deceased, was completely in contravention of empties recovered from the place of wardat---Large number of people, (50 or more), were allegedly attracted at the scene of crime, but, statement of none was recorded---Both the eye-witnesses were closely related with the deceased---In presence of glaring discrepancies, statement of closely related witnesses could not be relied upon---Medical evidence which was not in line with the ocular account, did not support the ocular account furnished by the two eye-witnesses---No crime weapon was recovered from the possession of accused---Motive set up by prosecution was double-edged and could be the reason for false implication of accused---Deputy Superintendent of Police, who appeared as court witness, found accused innocent during investigation---In such background, it was proper to evaluate the evidence respecting innocence of accused---Witnesses had not seen the occurrence as the version set forth by the prosecution ran counter to medical evidence qua the seat of injuries on the body of the deceased---No corroboration came from the evidence of recovery and the case as attempted to be established was not free from doubt---Conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted of the case and was set at liberty, in circumstances.

2008 SCMR 1049;2006 SCMR 456; 2001 PCr.LJ 9; 1999 SCMR 2389; 2002 SCMR 350; 1999 SCMR 329; PLD 2008 SC 416; 2008 SCMR 1106; 2008 PCr.LJ 881 and 2002 SCMR 1578 ref.

Muhammad Sharif v. Zulfiqar and 4 others PLD 1991 SC 1090; Muhammad Iqbal v. The State 1984 SCMR 930 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

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

----S.302---Qatl-e-amd---Appreciation of evidence---Sentence of conviction on capital charge had to rest wholly on ocular evidence, which must be of an unimpeachable character---When evidence was offered by witnesses whose independence was not above board, rather they were inimical towards accused, their testimony had to be scrutinized cautiously, before fixing responsibility on accused.

(c) Criminal trial---

----Benefit of doubt---Only one doubt about the involvement of accused, was enough for his acquittal, if the same would appeal to the mind of a prudent person.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Appellant.

Ch. Abdul Aziz for the Complainant.

Rehan-ud-Din Golra, Standing Counsel for the State.

Date of hearing: 7th February, 2012.

2013 Y L R 1474

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

ASIF IQBAL and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.61-B and 62-B of 2013, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395 & 412---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Dacoity, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Case of no evidence---Implication of accused in the offence on basis of disclosure made by co-accused---Co-accused with similar roles already granted bail---Effect---Allegation against accused persons was that they took away an oil tanker belonging to the complainant and sold the oil present therein---Pleas of accused persons were that they were implicated in the offence on the basis of disclosure made by co-accused; that there was no evidence collected by police to determine as to who sold the stolen oil, to whom it was sold and for how much consideration---Validity---No iota of evidence was available to connect accused persons with charge of dacoity under S.395, P.P.C.---Application of S. 412, P.P.C. was also lacking in view of the record and evidence recorded by the court---Accused were initially arrested on the disclosure made by a co-accused, who was subsequently discharged by police after a compromise with the complainant---Admission/disclosure made by co-accused was not admissible in evidence in view of Arts.38 & 39 of Qanun-e-Shahadat, 1984---Amount of sale proceeds allegedly received by accused persons for the stolen oil remained shrouded in mystery and same could be determined at trial---Car allegedly used in commission of the offence was not shown in the F.I.R.---Co-accused persons having similar roles to that of accused persons were granted bail, therefore, principle of consistency was applicable to the present case---Accused persons were released on bail accordingly.

Abdul Hafeez Tanoli for Petitioners.

Malik Shaukat Mahmood for the Complainant.

Zahoor Akhtar Awan, Standing Counsel for the State.

Zafar Iqbal, A.S.-I., Police Station Sabzi Mandi, Islamabad with record.

2013 Y L R 2349

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Major (Retd.) AHMAD NADEEM SADAL---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2242 of 2013, decided on 4th July, 2013.

(a) Constitution of Pakistan Cricket Board---

----Ss. 6, 28, 29, 30 & 31---Constitution of Pakistan, Art. 199---Constitutional petition---Chairman, Pakistan Cricket Board ("the Board"), appointment of---Legality---Qualifications for Chairman, Pakistan Cricket Board---Scope---Part-IV of the Constitution of Pakistan Cricket Board consisting of Ss. 28, 29, 30 and 31 had been incorporated with an object to allow the purported Chairman Pakistan Cricket Board to retain his office---Astonishingly section 28 of Constitution of Pakistan Cricket Board provided that qualification for recommendation for the post of Chairman was only experience of management or administration and it was absolutely silent about experience of cricket, knowledge about game of cricket and understanding the codes of International Cricket Council---Constitution of Nomination Committee was against the spirit of holding election in accordance with democratic values---Part-IV of the Constitution of Pakistan Cricket Board was a deceptive and dubious device to engineer the appointment of purported Chairman of the Board and was person specific for him---Appointment of purported Chairman was not on the basis of his career as a cricketer, knowledge about game of cricket, administrative qualities and management skills but apparently for the reason that he was President of a public sector Bank, a banker in status and due to his personal affiliation with persons on the helm of affairs---Re-appointment of purported Chairman was totally deceptive, as no election in accordance with the spirit of democratic process had been held, therefore, same was set aside---Part-IV of the Constitution of Pakistan Cricket Board consisting of Ss. 28, 29, 30 and 31 was declared to be of no legal effect, void ab initio, unconstitutional, besides democratic values, offensive to rights of individuals qualified to be elected as Chairman of the Board, and against the principles of transparency, fairness, impartiality, credibility and openness---High Court observed that political appointments of Chairman of the Board in different regimes resulted into deterioration of entire cricket structure in the country; that cricketers who represented Pakistan in 60's and 70's and who had even crossed the age of superannuation were glued to the chairs of the Board and were drawing handsome salaries along with other facilities---High Court directed that Election Commission should hold the election of Chairman of the Board within ninety days starting from 21st July, 2013; that the Electoral College should consist of Presidents of all elected Regional and District Cricket Associations and nominees of departments playing first class cricket; that every voter of the Electoral College should be eligible to contest the election provided he was not carrying any disqualification under the Constitution of Pakistan, and remained first class/test cricketer or had experience of running District or Regional Cricket Association, and in case of nominee from first class playing departments had experience of administration, and was at least a graduate and not a defaulter of the Board; that special audit of Pakistan Cricket Board as well as National Cricket Academy, of last five years should be conducted by the Auditor General of Pakistan and the report should be made public; that criminal cases must be registered and investigated by Federal Investigation Agency against persons who were involved in plundering the money of the Board and converted the assets of the said organization for personal use and for the benefit of irrelevant persons; that money belonging to the Board, to which any official was not entitled, must be recovered at the earliest; that the Federal Government might appoint some official of District Management Group (DMG), not below the rank of Additional Secretary, as Secretary of the Board and all the officials in the Board who were of no utility should be removed forthwith and amounts paid to them might be utilized for improving the cricket structure and welfare of cricketers, and that loans taken by persons in the set-up of the Board, which were still outstanding, should be published with the outstanding amount---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan Cricket Board---

----S. 6---Constitution of Pakistan, Art.199---Constitutional petition---Care-taker Chairman, Pakistan Cricket Board, powers of---Scope---Caretaker Chairman of Pakistan Cricket Board was appointed on the directions of the High Court for a period of ninety (90) days with the object to look into day to day affairs of the Board, to cooperate, and ensure the holding of election of the Chairman by the Election Commission within the stipulated period, which period was not to be extended on any pretext whatsoever---Appointment of members of Selection Committee, its Chairman and other appointments /termination of services in the Board as well as any major decision would be the right and domain of the newly elected Chairman of the Board (and not the Caretaker Chairman)---Constitutional petition was allowed accordingly.

Mian Abdul Rauf, Hafiz Asad and Ch. Tanvir Hunjra for Petitioners.

Tariq Mehmood Jehangiri, D.A.-G. for Respondents Nos.1 and 3.

Messrs Irfan Ullah, Taffazul Rizvi, Syed Hussain, Ibrahim Kazimi, Barrister Momin Ali Khan and Imtiaz Rashid Siddiqui.

Aftab Gul, Afnan Karim Kundi and Mr. Najam Sethi, Acting Chairman, PCB for Respondents.

2013 Y L R 2513

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Rana SAEED ULLAH---Petitioner

Versus

INSPECTOR GENERAL OF POLICE and 6 others---Respondents

Writ Petitions Nos.490-Q, 1297-Q and 1189/Q of 2013, decided on 3rd June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Constitution of Pakistan, Art.199---Penal Code (XLV of 1860), Ss.406, 419, 420, 447, 467, 468, 471, 489-F, 506 & 34---Criminal breach of trust, cheating by personation, cheating and dishonestly inducing delivery of property, criminal trespass, forgery, using as genuine a forged document, dishonestly issuing a cheque, criminal intimidation and common intention---Quashing of F.I.R., petition for---Controversy between the parties, was a dispute of civil nature and the parties had been dragging each other on the criminal side, with no other motive, except to gain the upper hand---No offence was absolutely made out as the rights and liabilities of the parties, were sub-judice, not only in the High Court in its original civil jurisdiction, but also in the subordinate courts where two separate suits were pending for adjudication---Registration of criminal cases, in circumstances, amounted to abuse of the process of law---Petition under S.561-A, Cr.P.C. was allowed and F.I.Rs. were quashed.

Raja Rizwan Abbasi, Advocate Supreme Court (in Writ Petition No.490 and 1297 of 2013).

Ch. Abdul Aziz Advocate Supreme Court for Petitioner (in Writ Petition No.1189 of 2013).

Tariq Mehmood Jehangiri D.A.-G. Abdul Sattar, S.I., Police Station Bani Gala, Iftikhar S.I., Police Station Kohsar for Petitioners.

Raja Rizwan Abbasi, Advocate Supreme Court for Respondent No.1 (in Writ Petition No.1189 of 2013).

Niaz Ullah Khan Niazi for Respondents Nos. 1 to 5 (in Writ Petition No.490 of 2013).

Ch. Abdul Aziz, Advocate Supreme Court for Respondent No.6 (in Writ Petition No.490 of 2013).

M. Ikhlaq Awan for Respondent No.6 (in Writ Petition No.1297-Q of 2013).

Dates of hearing: 30th May and 3rd June, 2013.

2013 Y L R 2630

[Islamabad]

Before Muhammad Anwar Khan Kasi, CJ

MUMTAZ AHMED SIDDIQUI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, (WEST) ISLAMABAD and 5 others---Respondents

Writ Petition No.684 of 2013, decided on 17th June, 2013.

(a) Illegal Dispossession Act (IX of 2005)---

----Ss. 3, 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Original owner of shop in question who leased out the same to tenant, having died, legal heirs of deceased appointed their special attorney who filed ejectment petition against tenant, which finally was allowed---On filing execution petition by the special attorney, tenant handed over possession to the special attorney, but on the same day the tenant dispossessed the special attorney---Complaint filed by special attorney against said illegal dispossession was dismissed vide impugned order observing that there being no incriminating piece of evidence to proceed further with the trial of the case, complainant, could seek remedy regarding possession of shop in question from the Executing Court---Said order had been challenged in constitutional petition---If an individual was illegally dispossessed, he had a right under Illegal Dispossession Act, 2005 to have a recourse to the provisions of said Act, without prejudice to such other remedies, that could be simultaneously available to him under other laws---Lodging of F.I.R., was not a bar to avail remedy under Illegal Dispossession Act, 2005, and would not attract the rule of double jeopardy, because said rule was attracted where accused had been tried for the offence charged with by a competent court; and there was a judgment or order of conviction or acquittal---In the present case, there was a specific allegation of dispossession after execution of warrant of possession---In presence of said serious allegations, there was no rationale for the court below to decide the complaint in a cursory manner without affording opportunity to the complainant to advance his case, as it was not a case of simple dispossession, but dispossession had been alleged to have been made after process of execution of court order---Illegal Dispossession Act, 2005 was not only meant for 'land mafia', but also had provided protection to lawful owner and occupants of the property; as against the unauthorized and illegal Dispossession Act, 2005 being an admitted fact of dispossession, complaint could not have been dismissed without proper trial---Impugned orders were set aside and the matter was remitted to the Trial Court, who was seized of the third complaint under Illegal Dispossession Act, 2005, with direction to proceed with all the three complaints, strictly in accordance with law after providing full opportunity of hearing and adducing evidence to both the sides and decide the petitions on their own merits, within shortest possible time.

PLD 2010 SC 725; PLD 2012 Bal. 189 and PLD 1990 SC 1. rel.

2010 PCr.LJ 666; 2010 YLR 3161; 2010 YLR 2383; PLD 2011 Pesh. 86; 2009 PCr.LJ 864; 2012 MLD 1652; PLD 2012 Sindh 399; 2011 PCr.LJ 1300; 2011 PCr.LJ 666 and 2009 PCr.LJ 864 ref.

(b) Illegal Dispossession Act (IX of 2005)---

----Ss. 3, 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Illegal dispossession---Complaint against---In the present case, there was alleged continuous defiance of orders of the court as the respondent/tenant after handing over vacant possession of shop in question in execution proceedings, dispossessed complainant third time and third complaint was pending adjudication before the court below---Stand of respondent tenant that he had instituted a suit for specific performance against the owner of suit shop, and that in presence of said suit, proceedings in question could not proceed, was devoid of force; as the dispute contained in the lis was entirely different than the one referred by the respondent/tenant, and had no nexus with each other---Tenant for redressal of his grievance, could avail proper remedy before appropriate forum under the relevant statute, but it would not mean that he could take the law into his own hand---If that practice was allowed, then there would be no end to any litigation; and the result would be that ultimately the citizens, who had just gained confidence in judicial system, once again would be losing their hopes, which in no way could be allowed or even predicted---Society could survive with curse, but could not with injustice---High Court was also under obligation to protect and preserve the Constitution and the law besides guarantees provided under the Constitution---Litigants could not be allowed to make decisions parallel to one administered by the courts after due process of law---Law had provided the remedies to every mischief---If a person was aggrieved, he could move the proper forum and could get relief---Continuous and flagrant defiance of the court orders, and alleged act of simultaneous dispossession of complainant by the tenant, reflected lawlessness and also had shown the sluggish attitude of the Law Enforcing Agencies---Same in no way could be dittoed, because it was against the spirit of law.

Rafaqat Islam Awan for Petitioner.

Munawar Hussain Abbasi for Respondent.

Shabbir Ahmad Abbasi, learned Standing Counsel for the State.

2013 Y L R 11

[Sindh]

Before Sadiq Hussain Bhatti, J

TAJAMMUL HUSSAIN---Applicant

Versus

MUHAMMAD ISMAIL and 2 others---Respondents

Civil Revision Application No.44 of 2010, decided on 27th September, 2012.

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

----Ss.100 & 115---Second appeal or revision---Concurrent findings of fact by courts below---Jurisdiction of High Court---Scope---High Court could set aside such findings, if same suffered from misreading or non-reading of evidence.

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

----S.100---Second appeal---Plea not raised before any forum below could not be raised in second appeal---Illustration.

(c) Pleadings---

----Party could not make a departure from its pleadings, rather would be bound thereby.

Juma Khan v. Mst. Shamim and others 1992 CLC 1022; Mukhtar Ahmed and another v. Mst. Wazir and others 2005 MLD 973; Gul Rehman v. Gul Nawaz 2009 SCMR 589; Alamdar Hussain v. Nazir Hussain and others 2004 SCMR 595; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489; Muhammad Bashir v. Haji Muhammad Siddique 1997 MLD 3263 and Muhammad Salehoon v. Mst. Bilqis Begum and others 1983 CLC 1853 ref.

Muhammad Aslam and others v. Muhammad Aslam and others PLD 2004 Pesh. 95 ref.

Mirza Sarfraz Ahmed for Applicant.

Muhammad Ishaque Memon for Respondents.

Date of hearing: 18th September, 2012.

2013 Y L R 30

[Sindh]

Before Naimatullah Phulpoto, J

IMAM BUX alias IMOO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-15 of 2011, decided on 31st August, 2012.

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

----S.13(d)---Possession of illegal weapon--Appreciation of evidence---Weapon not sealed on the spot---Report of Ballistic Expert not obtained----Independent witnesses not engaged---Enmity with police alleged---Effect---Accused and co-accused persons were challenged by police at a checkpoint because of which they allegedly fired at the police with the intention to kill---Two F.I.Rs. were registered for the case, one under Ss. 324, 354, 148 & 149, P.P.C and the other under S. 13(d) of Pakistan Arms Ordinance, 1965---Joint mashirnama was prepared for both F.I.Rs.---Trial Court convicted the accused under S. 13(d) of Pakistan Arms Ordinance, 1965--- Validity--- Joint mashirnama was prepared for both the F.I.Rs. and both cases were tried and decided by the same court---Trial Court disbelieved the prosecution evidence in one case and more or less on the same evidence convicted accused without assigning any sound reasons---Weapon recovered from accused had neither been sealed at the spot nor was it sent to ballistic expert along with empties for examination and report---Tampering of evidence in such circumstances could not be ruled out---Plea of accused that he was in police custody prior to registration of F.I.R. in question had been disbelieved by the Trial Court without assigning any cogent reason---Police had prior spy information therefore it had sufficient time to call independent and respectable persons of locality to make them mashirs but same had not been done---Testimony of police officials appeared to be unnatural and untrustworthy, particularly in the background of enmity alleged with police officials---Prosecution had not produced arrival and departure entries for the satisfaction of the Trial Court---Prosecution case was full of doubts, benefit of which had to be extended to the accused---Appeal was allowed, conviction and sentence awarded by Trial Court was set-aside and accused was acquitted of the charge.

(b) Criminal trial---

----Appreciation of evidence---Crime weapon---Sealing at place of incident---Importance---Wisdom behind sealing the weapon at place of incident was to eliminate the possibility of manipulation of evidence after recovery of the crime weapon---Sealing of weapon was essential, particularly in cases where it was alleged that weapon was used in the commission of crime and empties were secured from the vardat.

(c) Criminal trial---

----Appreciation of evidence---Over-zealous witness---During appreciation of evidence it was necessary as a prerequisite to see whether the witness in question was not an over-zealous witness.

Shabbir Ali Bozdar for Appellant.

Mohan Lal, D.D.P.P. for the State.

Date of hearing: 31st August, 2012.

2013 Y L R 44

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMAD YOUNIS alias YOUNIS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-29 and M.A. No.117 of 2011, decided on 10th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/396---Qatl-e-amd, dacoity with murder---Bail, grant of---Role attributed to accused was muchless severe than the one attributed to co-accused, who had already been released on bail by High Court---Accused, therefore, was entitled to bail on the principle of consistency---Other accused had allegedly fired a rocket, but no rocket launcher had been recovered and according to reinvestigation report, firing of rocket was not proved and the same had been arranged by the complainant to bring the case within the jurisdiction of Anti-Terrorism Court---Guilt of accused, in circumstances, needed further inquiry and the accused were admitted to bail accordingly.

Abdul Salam v. The State 1980 SCMR 142 and Nooruddin and another v. The State 2005 MLD 1267 ref.

Miss Rizwana Jabeen Siddqui for Applicants.

Shyam Lal, A.P.-G. for Respondent.

2013 Y L R 49

[Sindh]

Before Niamatullah Phulpoto, J

ABDUL GHANI---Appellant

Versus

GANJ BAKHSH alias GANJOO and another---Respondents

Criminal Acquittal Appeal No.S-51 of 2011, heard on 31st August, 2012.

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

----S. 417---Appeal against acquittal---Scope---Double presumption of inno-cence---Scope of acquittal appeal was considerably narrow and limited and obvious approach for dealing with appeal against conviction would be different and should be distinguished from appeal against acquittal because presumption of double innocence of accused was attached to order of acquittal.

Zaheer Din v. The State 1993 SCMR 1628 ref.

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

---Ss. 324/34/114---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Attempt to commit qatl-e-amd, common intention, abettor present when offence is committed---Appeal against acquittal---Appreciation of evidence---Prosecution case doubtful---Belated F.I.R.---No empties recovered---Investigation officer not examined---Complainant had sold his tractor to the co-accused, who only paid part of the agreed sale price and promised to pay the remainder later---Accused stood surety for the remaining amount---Complainant alleged that he demanded payment of remaining amount on which accused allegedly instigated co-accused to fire at the complainant---Trial Court acquitted accused from the charge---Validity---Delay of 22 days in lodging of F.I.R. for which no plausible explanation had been furnished---No empty was recovered from place of incident---Complainant had admitted in his cross-examination that co-accused did not repeat fire and no injury was sustained by complainant---Mere word of complainant, in the backdrop of dispute over payment of tractor, was not sufficient for Trial Court to record conviction---Investigation officer had recommended disposal of case in 'B' class and said officer had not been examined by the prosecution---Appeal against acquittal was dismissed in circumstances.

Shaikh Amanullah for Appellant.

Mohan Lal D.D.P.P. for the State.

Date of hearing: 31st August, 2012.

2013 Y L R 54

[Sindh]

Before Salahuddin Panhwar, J

ALLAH WADHAYO---Applicant

Versus

THE STATE and 16 others---Respondents

Criminal Miscellaneous Application No.459 and M.A. 3218 of 2012, decided on 7th September, 2012.

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

----Ss. 87, 88, 173, 193, 344 & 512---Penal Code (XLV of 1860), S. 364---Kidnapping or abducting in order to murder---Police report/interim challan---Cognizance of offence taken by Court of Session---Magistrate issuing release writ of accused in such circumstances on basis of a subsequent police report/final challan---Legality---Accused persons were alleged to have abducted the complainant's son with the intention to commit his murder---Interim challan submitted by police showed that four nominated accused were granted bail, six accused persons were under custody while four accused persons were absconding---Final report under class 'A' was submitted after re-investigation with the finding that due to land dispute complainant had lodged a false case----Magistrate accepted report under 'A' class and issued release writ of accused persons confined in judicial custody and case was disposed of under 'A' class---Contentions of complainant were that offence under S.364, P.P.C was triable by Sessions Court, therefore, concerned Magistrate was not competent to issue the release writ, specially, when the cognizance was taken and the matter was pending for proceedings under Ss. 87 & 88, Cr.P.C---Validity---Names of accused persons with specific allegations were manifest in the F.I.R. and in the investigation report---Report for disposal of case by police under 'A' class could only be made when the case was true but accused was untraceable---Some of the accused persons were facing trial even after getting bail, therefore, it could not be said that accused persons were untraceable---Magistrate was not competent to issue release writ as interim challan was submitted, some of the accused were on bail and offence was triable by Court of Session---Pendency of Sessions case file with the Magistrate was only meant to complete the process of proceedings under Ss. 87 & 88, Cr.P.C against absconding accused and to start proceedings under S. 512, Cr.P.C, if required---Magistrate, therefore, was not competent to issue release the writ in the present case---Magistrate could not assume jurisdiction of Sessions Court, therefore, issue of release writ of accused persons by Magistrate was an act without jurisdiction and coram non judice---Application was allowed, impugned order of Magistrate was set aside, accused persons were arraigned in the case to face trial and Magistrate was directed to forward the challan to Sessions Court after completion of proceedings under Ss. 87 and 88, Cr.P.C.

Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 ref.

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

---S. 173---Police report/ challan---Disposal of case under 'A', 'B' or 'C' class---Scope---Report for disposal of case by police under 'A' class could only be made when the case was true but accused was untraceable---For disposal of case under 'B' class the matter should be found to be false---Disposal of case under 'C' class was possible where there was insufficient evidence or matter was non-cognizable.

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

----S. 173---Police report---Disposal of case under class 'A', 'B' or 'C'---Report of police for disposal of the case under either of the said classes was not binding upon the court.

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

----Ss. 173 & 344---Police report---Cognizance taken by Court of Session---Power of Magistrate to dispose of the case in such circumstances---Scope---Once cognizance was taken on a police report in matters triable by the Court of Session, then even on interim report under S. 344, Cr.P.C, the Magistrate was no more competent to pass an order for disposal of case on subsequent report(s).

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

----Ss. 87, 88 & 512---Offence triable by Sessions Court---Accused absconding---Cognizance of offence taken by Magistrate---Power of Magistrate to complete proceedings in such circumstances---Scope---Magistrate after taking cognizance in cases triable by Sessions Court, must complete the proceedings under Ss. 87, 88 & 512 Cr.P.C, if according to challan, accused were shown as absconders.

Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 rel.

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

----Ss. 87, 88 & 512---Offence triable by Sessions Court---Power of Magistrate to complete proceedings against absconding accused---Purpose---Jurisdiction was vested in the Magisterial Court to complete the proceedings against absconding accused persons in matters triable by Sessions Court only to lessen the time taking exercise and was never meant to vest powers of Sessions Court (Trial Court) in the court of Magistrate.

Atta Hussain Chandio for Applicant.

Muhammad Nawaz Soomro for Respondents.

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

Date of hearing: 7th September, 2012.

2013 Y L R 64

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ SAJJAD NAEEM

and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.13 of 2012, decided on 2nd October, 2012.

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

---S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Doubts regarding time of recovery and sealing of samples---Date of receipt of samples by the Chemical Examiner doubtful---Accused persons (appellants) were found in possession of 53 kilograms of heroin---F.I.R. did not mention taking of any samples but only mentioned sealing of recovered narcotic---Mashirnama of recovery did mention the fact that samples were taken from the spot, but such fact was not written in the body of the Mashirnama but on the last line of a margin, admittedly in a different handwriting and at a different time---Complainant (police official) had stated in his evidence that heroin recovered was present in cloth bags, however, no cloth bags were stated either in the F.I.R. or in the mashirnama----First investigation officer, who was allegedly given custody of the recovered heroin and samples did not appear as witness---Second investigation officer admitted that he had neither seen the samples nor sent them to the Chemical Examiner---Record showed that samples were sent to Chemical Examiner on 13-2-1999, but report of Chemical Examiner showed they had been received on 1-6-1999---Questions regarding samples which had not been plausibly explained by the prosecution were as to who took them; when they were taken; when they were sealed; who sent them to the laboratory and where did they remain between the day of the alleged recovery and their receipt by the Chemical Examiner---Appeal was allowed and accused persons were acquitted by granting them benefit of doubt.

Shaukat Hayat for Appellants.

Nemo for the State.

Date of hearing: 20th September, 2012.

2013 Y L R 74

[Sindh]

Before Riazat Ali Sahar, J

KAMAL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-73 of 2010, decided on 4th July, 2012.

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

----S. 497---Bail---Factors to be considered---Assessment of evidence---Scope---Deeper appreciation of evidence could not be gone into at bail stage but mere tentative assessment was to be made of F.I.R., statement of prosecution witnesses, nature of offence, role assigned to accused, mashirnama and medical report.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/ 337-H(2)/ 148/ 149---Qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accused persons were alleged to have murdered the complainant's nephew (deceased)---Specific role was assigned to accused persons by the prosecution---Recovery of weapon was effected from one of the accused---Accused persons were implicated by all prosecution witnesses---Empty shells were recovered from place of incident---Prosecution version was corroborated by medical report/postmortem---Police report under S. 173, Cr.P.C, was not binding on the court---Case fell within prohibitory clause of S. 497, Cr.P.C---Bail was refused in circumstances.

Jaffar and another v. The State 1980 SCMR 784 distinguished.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 and Abdul Hayee v. The State 1996 SCMR 555 rel.

Muhammad Murad Chachar and Abdul Rahman Bhutto for Applicants.

Miss Rubina Dhamrah, State Counsel.

Munir Ahmed Bijarani for the Complainant.

2013 Y L R 106

[Sindh]

Before Habib-ur-Rehman Shaikh, J

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-462 of 2010 and M.A. No.4038 of 2011, decided on 3rd September, 2012.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 342---Qatl-e-amd---Appreciation of evidence---Remand of case to Trial Court---Accused on bail---Statement of accused under S. 342, Cr.P.C not properly recorded---Effect----Accused was convicted and sentenced by the Trial Court under S. 302, P.P.C---Validity---Trial Court during the trial had put a question to the accused regarding recovery of dead body but the date and time mentioned therein was different from the date and time mentioned in mashirnama of recovery of dead body---No question regarding last seen evidence was put by the Trial Court---Signatures of accused were missing from his statement--Many lacunas were found in the statement of accused under S. 342, Cr.P.C, therefore, impugned judgment of Trial Court was set aside and case was remanded to the Trial Court with direction to record statement of accused afresh with all the relevant questions which were brought before the court during trial---Accused was granted bail with direction to the Trial Court to take appropriate action against him in case he misused the concession of bail---Appeal was disposed of accordingly.

Syed Madad Ali Shah for Appellant.

Syed Meeral Shah for the State.

Aijaz Shaikh for Complainant.

Date of hearing: 3rd September, 2012.

2013 Y L R 110

[Sindh]

Before Muhammad Ali Mazhar, J

Syed AMANULLAH SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-10 of 2012, decided on 1st June, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/147/148/149---Juvenile Justice System Ordinance (XXII of 2000), Ss.10(5) & (7)---Qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Plea of being a juvenile---Contentions of the accused were that he had been falsely implicated in the crime due to tribal land enmity; that accused was alleged to be carrying a double barrel gun but the measurement of the injury in the postmortem report showed that it was not caused by a double barrel gun but through a pistol, rifle or Kalashnikov; that not a single pellet was recovered from the body of the deceased; that as per the school leaving certificate of the accused, he was about 17 years of age at the time of the alleged offence, and that the complainant of the case was the uncle of the accused, who was fully aware of his correct name, but still the F.I.R. mentioned his wrong name, which created doubt that it was a case of mistaken identity---Validity---Medical Board opined that the age of the accused appeared to be 18/19 years---Proviso to S. 497, Cr.P.C, provided that the court might release a person on bail who was found to be under the age of 16 years, which was not applicable in the present case as the accused himself admitted that at the time of the incident, he was 17 years of age---Accused was involved in an offence under S.302, P.P.C, which was punishable with death or in the alternate life imprisonment, therefore, in view of S.10(7) of the Juvenile Justice System Ordinance, 2000, it had to be demonstrated that no delay had been caused by the accused in the conclusion of his trial, which would entitle him to be released on bail---Nothing had been placed on record to show status or stage of trial or the reason of delay in trial, if any---Mentioning the wrong name of the accused in the F.I.R. created doubt and possibility of his false involvement and or mistaken identity could not be ruled out---Accused was alleged to have fired upon the deceased from his double barrel gun but postmortem report indicated that no pellets were found in the body of the deceased and the size of the wounds did not show that same appeared to have been caused by a double barrel gun---Co-accused, who had been assigned similar role to that of the accused, was mentioned in Column No.2 of the challan and was let off by the police but the accused was sent for trial---Enmity between the parties was admitted and also mentioned in the F.I.R.---Case of the accused required further inquiry---Bail application of the accused was allowed.

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

----S. 497(1) & (2)---Bail---Offence falling within the prohibitory clause---Case of further inquiry---Effect---Accused was entitled to concession of bail, even where the offence fell within the prohibitory clause, provided his case came within the purview of further inquiry.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt was to be extended in favour of the accused, even at bail stage.

J.K. Jarwar for Applicant.

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

Date of hearing: 11th May, 2012.

2013 Y L R 117

[Sindh]

Before Riazat Ali Sahar, J

HAIBAT and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-34 and M.A. No.267 of 2012, decided on 31st July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/201---Qatl-e-amd, abetment, causing disappearance of evidence of offence---Bail, grant of---Accused persons were alleged to have murdered the complainant's son (deceased) before throwing away his dead body in a watercourse---F.I.R. was delayed by about 21 days---Direct complaint for the same incident had been filed by the complainant with a different version, therefore, present case was a case of more than one version--Question as to which of the versions was correct could be decided at the trial---No incriminating article had been recovered from the possession of the accused---Medical Board disclosed the cause of death of deceased as "undetermined", therefore, ocular testimony was not supported by medical evidence---Accused persons were granted bail in circumstances.

Muhammad Ismail v. Khushi Muhammad and 7 others PLD 1974 SC 37 and Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

Asif Ali Abdul Razzak Soomro for Applicants.

Muhammad Saleem G.N. Jessar for the Complainant.

Imtiaz Ali Shahani, State counsel.

2013 Y L R 133

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD FAREED---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.75 and M.A. No.1052 of 2011, decided on 31st May, 2012.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 5---Cognizance of complaint---Pre-conditions---Pendency of proceedings before civil or revenue courts---Effect---Complaint under Illegal Dispossession Act, 2005, cannot be entertained where matter of possession of relevant property is being regulated by a civil or revenue court---Provisions of Illegal Dispossession Act, 2005, are restricted in scope and applicable to only those cases where dispossession from immovable property has allegedly come about through the hands of class or group of persons who have credentials or antecedents of being property grabbers/Qabza group/land mafia---Provisions of Illegal Dispossession Act, 2005, do not apply to run of the cases of alleged dispossession from immovable properties by ordinary persons having no such credentials or antecedents, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an ongoing private dispute over relevant property---Before entertaining complaint under Illegal Dispossession Act, 2005, Trial Court must feel prima facie satisfied that persons complained against, have credentials of being property grabbers or they have antecedents of being members of Qabza group or land mafia; it is only after such prima facie satisfaction that complaint may be entertained by Trial Court.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Criminal Procedure Code (V of 1898), Ss. 145 & 561-A---Cognizance of complaint---Civil suit, pendency of---Quashing of proceedings---Trial Court, on complaint filed by respondent, sought report from police and in the light of police report, took cognizance under Illegal Dispossession Act, 2005, against petitioner and framed charge---Plea raised by petitioner was that civil suit regarding same property was pending between same parties before civil court---Validity---Where civil Court was already seized with subject matter of dispute and had passed order regulating possession thereof or a case in which decree for possession had been granted or a permanent injunction granted restraining opposite party from interfering with possession of decree holder, fell outside the jurisdiction of a Magistrate under S.145 Cr.P.C.---Respondent through filing of her complaint under Illegal Dispossession Act, 2005, had tried to transform a bona fide civil dispute between parties into a criminal case so as to bring weight of criminal law and process to bear upon applicant in order to extract concessions from him---High Court declared such utilization of criminal law and process by respondent, to be an abuse of process of law and the same was not allowed to be perpetuated---High Court in exercise of inherent jurisdiction quashed the proceedings against petitioner pending before Trial Court---Petition was allowed accordingly.

PLD 2007 Lah. 231; 2010 SCMR 1254; 2011 SCMR 549; PLD 2010 SC 661 and Shahbudin v. The State PLD 2010 SC 725 rel.

Mehmood A. Qureshi and Muhammad Nazir Tanoli for Applicants.

Arshad Tayebaly for Respondent No.2.

Abdullah Rajput, learned A.P.G. Sindh.

Date of hearing: 28th March, 2012.

2013 Y L R 147

[Sindh]

Before Sadiq Hussain Bhatti, J

Syed RAHEEM SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.99 of 2012, decided on 1st October, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Material contradictions existed in the statements of the complainant and other prosecution witness---Single firearm injury received by the deceased, was not specifically attributed to any accused as per F.I.R.---Subsequently, prosecution witnesses by improving their testimonies, attributed said injury to the accused---No crime weapon having been recovered from the possession of accused persons, empties produced by prosecution witness before Police during the inspection of place of wardat, had no legal value---F.I.R. revealed that complainant had stated that all accused persons came, and fired at the complainant party and in retaliation, the complainant party also returned the fire in self-defence, but prosecution witness had not supported said plea of prosecution---Testimony of injured prosecution witnesses could not be recorded, though they were summoned and Process Server stated that the whereabouts of the prosecution witnesses were not known---Parties being on inimical terms to each other, evidence of eye-witnesses brought on record was not qualitative in nature---Order of the Trial Court was set aside and accused was acquitted by giving him benefit of doubt, and he was acquitted of the charge and was set at liberty---Co-accused, who was facing the same trial, did not file appeal to challenge his sentence---Since same set of prosecution witnesses was examined with same evidence and name of co-accused did not appear in the F.I.R., and he was arrested from the hospital where he was hospitalized, he was also acquitted when allegations against him were general in nature and no specific part was assigned---Co-accused was also released, in circumstances.

1997 SCMR 438; 2010 YLR 3127; 2010 YLR 2919; 2010 YLR 1054; 2010 SCMR 385; 2010 SCMR 1054; 1993 SCMR 550; 2003 SCMR 1419; 2011 SCMR 323; 2009 Cr.L.J. 26(sic) and 1980 Cr.L.J. 264(sic) ref.

Haq Nawaz Talpur for Appellant.

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

Date of hearing: 18th September, 2012.

2013 Y L R 156

[Sindh]

Before Salahuddin Panhwar, J

AMEER BAKHSH alias KURARO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-361 of 2012, decided on 27th August, 2012.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention--Bail, refusal of---Accused and co-accused persons were alleged to have killed complainant's brother (deceased)---Accused was assigned specific role of firing at the deceased---Accused contended that there was material contradictions between ocular and medical evidence as according to ocular evidence the fatal injury was caused by the accused on the right side of deceased's neck whereas postmortem report showed said injury on the upper side of the chest---Validity---Examination of F.I.R., mashirnama of dead body and postmortem report showed that there was no conflict between medical and ocular evidence---Slight difference of inches about the seat of injury could not be termed as conflict in medical and ocular evidence---Complainant had reported a firearm injury which was supported by postmortem report, therefore, plea of conflict in medical and ocular account carried no weight---Accused was assigned specific role of causing fatal shot to the deceased---F.I.R. was lodged within 30 minutes of the incident---Weapon was recovered from accused during course of investigation---Offence alleged fell within the prohibitory clause of S. 497, Cr.P.C---Bail application of accused was dismissed, in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32 and Moeen Butt v. The State 2004 PCr.LJ 545 distinguished.

Syed Mahboob Shah v. The State 1995 SCMR 1099; Syed Abdul Baqi Shah v. The State 1997 SCMR 32 and Amanullah v. The State PLD 2009 SC 542 ref.

(b) Criminal trial---

----Appreciation of evidence---Assessment of medical evidence---Place of injury---Slight difference between ocular account and medical evidence---Effect---Slight difference of inches about the seat of injury could not be termed as conflict in medical and ocular evidence.

Abdul Haque G. Odho for Applicant.

Muhammad Akram Jhamat for the Complainant along with Complainant in person.

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

2013 Y L R 164

[Sindh]

Before Naimatullah Phulpoto, J

GHAZI and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.790 and 817 of 2011, decided on 11th June, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/201--- Qatl-e-amd, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Allegation against the accused and co-accused was that they murdered the son of the complainant and left his decapitated body on the bank of a canal---Contentions of the accused were that the F.I.R. was lodged against unknown persons and statements of prosecution witnesses under S. 161, Cr.P.C, were recorded on the next day, in which they also stated that the murder had been committed by unknown persons; that further statements of the complainant and prosecution witnesses were recorded after a delay of 3 months and 23 days, wherein they implicated the accused persons; that there was pending criminal litigation between the parties, therefore, false implication of the accused could not be ruled out---Validity---F.I.R. was recorded after a delay of about 7/8 days against unknown accused persons---Prosecution witnesses in their statements under S. 161, Cr.P.C, had not implicated any of the accused persons---Further statement of the complainant was recorded on the basis of information given to him by the prosecution witnesses---Value of further statements of the complainant and the prosecution witnesses which were recorded after 3 months and 23 days, was yet to be determined at the trial---Perusal of police papers showed that no one had seen the accused persons committing the murder---Criminal litigation was pending between the parties and serious mala fides on part of the complainant and police had been alleged---Case against the accused required further inquiry as contemplated in S. 497(2), Cr.P.C---Accused was enlarged on bail, in circumstances.

Amir Hamza v. The State 1988 SCMR 755; Suba Khan v. Muhammad Ajmal and others 2006 SCMR 66; Abid Ali alias Ali v. The State 2011 SCMR 161; Syed Amanullah Shah v. The State PLD 1996 SC 241; Javed Iqbal v. The State 2008 PCr.LJ 1578 and Qudarutullah v. The State and another 2011 MLD 403 rel.

Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302/201---Qatl-e-amd, causing disappearance of evidence of offence---Interim-bail, confirmation of---Further inquiry---Allegation against the accused persons and co-accused was that they murdered the son of the complainant and left his decapitated body on the bank of a canal---Contentions of the accused persons were that the F.I.R. was lodged against unknown persons and statements of prosecution witnesses under S. 161, Cr.P.C, were recorded on the next day, in which they also stated that the murder had been committed by unknown persons; that further statements of the complainant and prosecution witnesses were recorded after a delay of 3 months and 23 days, wherein they implicated the accused persons; that there was pending criminal litigation between the parties, therefore, false implication of the accused persons could not be ruled out---Validity---F.I.R. was recorded after a delay of about 7/8 days against unknown accused persons---Prosecution witnesses in their statements under S. 161, Cr.P.C, had not implicated any of the accused persons---Further statement of the complainant was recorded on the basis of information given to him by the prosecution witnesses---Value of further statements of the complainant and the prosecution witnesses which were recorded after 3 months and 23 days, was yet to be determined at the trial---Perusal of police papers showed that no one had seen the accused persons committing the murder---Criminal litigation was pending between the parties and serious mala fides on part of the complainant and police had been alleged---Case against the accused persons required further inquiry as contemplated in S. 497(2), Cr.P.C---Interim-bail already granted to the accused persons was confirmed, in circumstances.

Amir Hamza v. The State 1988 SCMR 755; Suba Khan v. Muhammad Ajmal and others 2006 SCMR 66; Abid Ali alias Ali v. The State 2011 SCMR 161; Syed Amanullah Shah v. The State PLD 1996 SC 241; Javed Iqbal v. The State 2008 PCr.LJ 1578 and Qudarutullah v. The State and another 2011 MLD 403 rel.

Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

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

----Ss. 497 & 498---Bail---Appreciation of evidence---Scope---Deeper appreciation of evidence, at bail stage, could not be gone into but a bird eye view was to be taken of the available record before the court to satisfy prima facie, whether the accused persons were connected with the commis-sion of the offence or not.

Amanullah G. Malik for Applicants.

Jamshaid Ahmed Faiz for the Complainant.

Sardar Ali Shah, APG. for the State.

2013 Y L R 187

[Sindh]

Before Maqbool Baqar and Nisar Muhammad Shaikh, JJ

MUDASIR SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.280 of 2009, decided on 8th August, 2012.

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

----Ss. 9(c) & 29---Possessing and trafficking of narcotic---Appreciation of evidence---Accused persons reportedly had brought a huge quantity of charas in a bus being smugglers of the same and they having knowledge of the availability of charas concealed in the bus, also resisted search---Such charas was recovered from the secret box/cavity of the bus and accused were arrested at the spot---Such evidence adduced by the prosecution before the Trial Court was found to have established the guilt of accused---No sort of alleged enmity or any reason of false implication was shown by accused anywhere in the proceedings of the case---Once the knowledge and possession of accused, corroborated by the recovery, was proved by the prosecution, the burden to disprove the charge then shifted upon accused, but accused failed to discharge the same as required in terms of S.29 of Control of Narcotic Substances Act, 1997--Appeal of co-accused had already been dismissed up to the Supreme Court and case of accused was identical to that of convicted co-accused---Trial Court, in circumstances, had rightly held the accused as guilty of the charge having been proved against them beyond any reasonable doubt.

Muhammad Noor and others v. The State 2010 SCMR 927 and Muhammad Ashraf Shaheen v. The State 2006 MLD 183 ref.

Muhammad Faisal Sail for Appellant.

Ashfaq Hussain Rizvi, Special Prosecutor ANF, for Respondent.

Date of hearing: 14th February, 2012.

2013 Y L R 194

[Sindh]

Before Nisar Muhammad Shaikh, J

AAQIB HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.221 and 222 of 2009, decided on 18th January, 2012.

Penal Code (XLV of 1860)---

----S. 412---Dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Accused persons, against whom the earlier case of robbery of the car was pending at the time of impugned judgment passed in that case of robbery of such car, were subsequently acquitted by the Trial Court---Prosecution adduced the evidence of sole eye-witness of alleged recovery who was Head Constable, was also the mashir of the alleged recovery, and his evidence was not corroborated by any other witness---Co-mashir was given up by the prosecution---Complainant S.H.O., who was also the witness of the alleged recovery, was not examined by the prosecution before the Trial Court as his whereabouts were not known---Police constable, who was driver of the Police mobile in which the raiding party arrived at the spot, was also not examined by the prosecution, without any reason, though the name of that witness appeared in the list of witnesses given in the challan---Prosecution examined Investigating Officer, who was not the witness of recovery; and he simply identified/verified the signatures of the complainant---Evidence of said witness, so far as the arrest and recovery in question was concerned, was not helpful to the prosecution to corroborate the evidence of sole witness, examined by prosecution on such material point---Robbed car allegedly recovered from the possession of accused, was not produced before the Trial Court---Roznamcha entry on the basis of which the complainant party left the Police Station and arrived at the spot and effected the alleged recovery, was also not produced before the Trial Court during the evidence of prosecution witnesses---In view of contradictions and other defects in the case of prosecution, prosecution story was not believable---Accused had served sufficient punishment, while remaining in jail and only the sentence of 1 year, 8 months and 19 days remained in balance--Case of prosecution, could not be said to have been proved beyond any shadow of doubt---Conviction and sentence awarded to accused person, was not sustainable, in law, in circumstances---Impugned judgment was set aside, accused person stood acquitted of the alleged charge and was directed to be released, in circumstances.

(Both Appellants produced in Custody in Criminal Jail Appal No.221 of 2009).

Syed Khalid Shah for Appellant (in Jail Appeal No.222 of 2009).

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

Date of hearing: 18th January, 2012.

2013 Y L R 203

[Sindh]

Before Shahid Anwar Bajwa, J

LOUNG and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.170 and 458 of 2011, heard on 10th October, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/353/224/225/147/148---Qatl-e-amd, assault on public servant, resistance to lawful apprehension---Pre-arrest bail, grant of---Accused having his case similar to that of co-accused already granted bail by Trial Court, prosecution did not oppose grant of bail to him---Other accused had allegedly given kick blows on the jaw of a Police Official---According to medical evidence there were only two abrasions measuring 1 cm each on the chin of the said Police Official---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Arshad v. State 1999 PCrLJ 611; Meeran Bux v. State PLD 1989 SC 347 and Shafi Muhammad v. State 1990 PCrLJ 1157 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/353/224/225/147/148---Qatl-e-amd, assault on public servant, resistance to lawful apprehension---Bail, grant of---Accused was alleged to have given a "Lathi" blow to a Police Official---Five police personnel duly armed had gone to arrest two persons and none of them had used any force to prevent the alleged attack---According to F.I.R. only shirts of the Police Officers were torn by co-accused---No firearm was stated to have been snatched by any of the accused---Even no grappling by the Police Officers with the unarmed accused persons was mentioned---Such absolute inaction, rather imbecility, on the part of the Police had created doubt---Accused was admitted to bail in circumstances.

Arshad v. State 1999 PCr.LJ 611; Meeran Bux v. State PLD 1989 SC 347 and Shafi Muhammad v. State 1990 PCr.LJ 1157 ref.

Muhammad Iqbal Memon for Applicants.

Shyam Lal, Assistant Prosecutor General for the State.

Date of hearing: 10th October, 2011.

2013 Y L R 208

[Sindh]

Before Farooq Ali Channa, J

MUGHAL KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.689 of 2012, decided on 31st July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Qanun-e-Shahadat (10 of 1984), Art. 22---Dacoity---Bail, grant of---Further inquiry---Identification by a sole witness---Belated identification test parade---Accused and co-accused persons were alleged to have committed dacoity in a bank---Complainant identified the accused during identification parade---Name of accused was not mentioned in the F.I.R. nor any recovery of robbed property was made from him---Sole evidence against accused was his identification by complainant during identification parade before Magistrate---Such identification parade was held after six months of the alleged incident and after ten days of the arrest of accused---F.I.R. had mentioned that there were other persons in the bank at the time of incident and they had also seen the accused and co-accused persons, but none of them was called for identification test---Identification report contained remarks that one of the witnesses had been shown photographs of accused and co-accused persons, therefore, he was not allowed to participate in the identification test---Such remarks made the sanctity of identification test doubtful---Case was one of further inquiry---Accused was admitted to bail accordingly.

Syed Amir Haidder Shah Naqvi and Anwar Hussain Solangi for Applicant.

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

2013 Y L R 219

[Sindh]

Before Ahmed Ali M. Sheikh, J

HASSAN FARID KHAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.49 and M.As. 1658 and 1659 of 2012, decided on 31st May, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 205 & 561-A---Dispensing with personal attendance of accused---Absconder/fugitive from law---Entitlement to relief---Scope---Magistrate accepted application of accused (applicant) under S.205, Cr.P.C, and passed an order dispensing/exempting personal appearance of accused (applicant)---Accused subse-quently absconded and his bail was cancelled---Court below set aside order of Magistrate---Accused contended that Court below had set aside order of Magistrate without giving him notice and without providing him an opportunity of hearing---Validity---Although accused was neither served with a notice nor provided an opportunity of hearing but it was not disputed that he was an absconder and his bail had been cancelled by Trial Court---Fugitive from law was not entitled to seek relief---Fugitive or absconder not surrendering before the court deprived himself of relief claimed in proceedings---Conduct of accused in the present case made it clear that he was a fugitive from law and therefore had no right to claim relief from the court---Application was dismissed accordingly.

Habib Bank Ltd. v. Jamilur Rehman 1994 MLD 271; Nusrat Habib v. Masrur Ahmad PLD 1988 Kar. 535; Ali Muhammad v. State PLD 2010 SC 623; Abdul Haleem v. State 1982 SCMR 988 and A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 distinguished.

Allah Bakhsy v. State 1982 SCMR 911; Chan Shah v. Crown PLD 1956 Federal Court 43; Gul Hassan v. State PLD 1969 SC 89; Hayat Bakhsy v. State PLD 1981 SC 265; State v. Nasim-ur-Rehman PLD 2005 SC 270; Awal Gul v. Zawar Khan PLD 1985 SC 402; Zeeshan Hussain Kazmi v. State 2000 PCr.LJ 645; Irshad Begum v. Sessions Judge 2007 MLD 258 and Liaquat Ali Virk v. Inspector General of Punjab Police PLD 2010 Lahore 224 ref.

Abdul Majeeb Pirzada and Khalid Shah for Applicant.

Ms. Rahat Ahsan, D.P.G., for Respondent No.1.

Mahmood A. Qureshi for Respondent No.2.

2013 Y L R 228

[Sindh]

Before Riazat Ali Sahar, J

GHULAM HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-374 of 2012, decided on 30th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Penal Code (XLV of 1860), S. 395---Haraabah, dacoity---Bail, refusal of---Allegation against accused and co-accused persons was that they entered into the house of the complainant and robbed house hold articles along with cash---Although name of accused did not transpire in the F.I.R. but he was subsequently identified along with specific role through identification parade before the Magistrate---Recovery of robbed property along with weapon had been effected from exclusive possession of accused---Offence fell within prohibitory clause of S. 497, Cr.P.C---All prosecution witnesses had implicated the accused in their statements under S. 161, Cr.P.C---Bail application of accused was refused, in circumstances.

Badaruddin v. State 2008 PCr.LJ 495; Mehmood Ahmad v. State 1995 SCMR 127; Muhammad Ali v. State 2010 PCr.LJ 1120, Abdul Hameed v. State 2004 MLD 413; Faisal v. State 2011 PCr.LJ 1178; Muhammad Ayaz v. State 2011 SCMR 769; Khadim Hussain v. State 1985 SCMR 721 and Tariq Bashir v. State PLD 1995 SC 34 ref.

Amir Hyder Shah Naqvi and Syed Naimatullah Shah for Applicant.

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

Date of hearing: 6th August, 2012.

2013 Y L R 237

[Sindh]

Before Abdul Rasool Memon and Naimatullah Phulpoto, JJ

ASIF ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-77 of 2010, decided on 29th June, 2012.

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

---S. 29---Possession of illicit articles---Presumption---Burden of proof---Scope---Prosecution had the primary obligation to prove its case beyond reasonable doubt and its burden was not shifted under the presumption contained in S. 29 of Control of Narcotic Substances Act, 1997, which section only stated that once the prosecution had established recovery beyond shadow of doubt, it was then that the burden was shifted---Section 29 of Control of Narcotic Substances Act, 1997, did not absolve the prosecution of its primary duty to prove its case beyond doubt.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Doubtful recovery---Delay in sending samples---Contradictions between evidence of prosecution witnesses and contents of F.I.R.---Accused was allegedly found in possession of 400 grams of charas and Trial Court convicted him under S. 9(b) of Control of Narcotic Substances Act, 1997---Validity---F.I.R. stated that charas was allegedly recovered from the fold of shalwar (trouser) of the accused, but complainant/police official deposed that charas was recovered from the right side fold of shalwar ( trouser) of the accused---Arrest and recovery mashir (police official) in his deposition had stated a story dissimilar to the recovery stated in the F.I.R.---Narcotic (charas) was sent to the Chemical Examiner after about 12 days of its alleged recovery, and case record provided no explanation as to who had the custody of the sample parcel in the said period---Prosecution had failed to prove its case beyond shadow of reasonable doubt---Appeal was accepted, accused was extended benefit of doubt and he was acquitted of the charge.

Asghar Ali v. The State 1996 SCMR 1541; Amjad Ali v. The State 2012 SCMR 577 and Sayed Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

Asif Ali Abdul Razak Soomro and Safdar Ali Ghouri for Appellant.

Altaf Hussain Surahio State Counsel.

Date of hearing: 29th June, 2012.

2013 Y L R 248

[Sindh]

Before Shahid Anwar Bajwa, J

SHAIKH MUHAMMAD and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Bail Application No.S-95 and Criminal Transfer Application No.21 of 2012 and Connected with Bail Application No.S-573 and S-610 of 2011, decided on 9th July, 2012.

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

----Ss. 497(2) & 526---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail, grant of---Further inquiry---Transfer of case---Determining time of death of deceased---Method---Scope---Allegation against the accused persons was that they committed rape with the victim and took her photographs with a mobile phone before murdering her---Victim's body was found in a well---Contentions of the accused persons were that investigation into the case revealed that the victim's family suspected her of having illicit relations with the accused persons because of which she was murdered by her own family; that post-mortem report of the victim indicated that her death had occurred at about 11 am, whereas the F.I.R. alleged that it had occurred at about 8 am, and that pre-arrest bail application of the accused persons was refused by Trial Court with observations that showed a predisposition of mind, therefore, the case should be transferred to any other court---Contention of the complainant party was that they had not murdered the victim for allegedly having illicit relations with the accused persons because if that was the case then under the tradition of Karo Kari both the victim and accused persons would have been murdered---Validity---Contention of the complainant party regarding Karo Kari was of no relevance because it would be axiomatic to say that if only one was murdered and not both, the story must not be believed---Regarding contention of accused persons with regard to time of death, normal method of determining time of death was through measurement of body temperature and state of rigor mortis---When at the time of recovery, body was not in ambient temperature but either had elevated or reduced temperature, the rigor mortis and drop in temperature would vary accordingly---Since in the present case body was recovered from a well, therefore, it was yet to be seen whether the time described in the postmortem report, for water in a well in the month of July, was a true indicator of the time of death giving the fact that temperature of water was less than the temperature of air---Mobile phone with which the accused persons allegedly took photographs of the victim was not available on record---Medical report was also silent with regard to the alleged rape of the victim---Similarly there was no evidence that accused persons murdered her and threw her in the well---Case was one of further inquiry---Accused persons were allowed bail.

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

----S.526---Transfer of case---Observation of Trial Court in bail application--Relevance---Scope.

Muhammad Siddique v. Imtiaz Begum and 2 others 2000 SCMR 442; Muhammad Karim v. State 2008 PCr.LJ 227; Lal Muhammad v. State 1990 SCMR 315; Muhammad Moosa v. Ghulam Qadir 2009 MLD 16; Ghulam Shabbir v. Nawab Shah 2001 PCr.LJ 2066 and Dr. Muhammad Aslam v. State's case 1993 SCMR 2288 ref.

Hidayatullah Abbasi for Applicants.

Muhammad Iqbal Kalhoro, A.P.G. along with SIP Mir Muhammad Kaloi, Police Line Umerkot for the State.

Ishrat Ali Lohar for the Complainant.

2013 Y L R 255

[Sindh]

Before Habib-ur-Rehman Shaikh, J

ABDUL HAFEEZ and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-182 and S-199 of 2012, decided on 27th August, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.324/ 149/ 114/ 337-H(1)/ 147/ 337-A(i)/ 337-F(i)/ 140/447/ 506(ii)---Attempt to commit qatl-e-amd, unlawful assembly, abettor presented when offence committed, hurt by rash or negligent act, rioting, shajjah-i-khafifah, ghayr-jaifah-damiyah, wearing garb or carrying token used by soldier, sailor or airman, criminal trespass, criminal intimidation---Bail, refusal of---Dispute between parties over a plot of land---Allegation against accused persons was that they formed an unlawful assembly while armed with deadly weapons and launched an assault upon the complainant party which resulted in several injuries---Accused persons had been attributed specific role of causing injuries to the injured persons on the instigation of one of the co-accused---Memo of occurrence revealed that two empties were recovered from the site---Counter F.I.R. lodged against complainant party showed that both parties had quarreled with each other but the presence of injured persons had not been shown in said counter F.I.R., from which it appeared that real facts had not been disclosed and portions of the incident had been concealed in the counter F.I.R.---F.I.R. coupled with statement of witnesses under S. 161, Cr.P.C and medical evidence corroborated each other---Case of injured persons fell within the prohibitory clause of S. 497, Cr.P.C---Accused persons were not entitled to grant of bail---Bail application of accused persons was dismissed.

Wazir Ahmed v. State 2004 SCMR 1167, 2005 SCMR 1784, Amanullah v. The State 2005 MLD 415; Sher Muhammad v. State 2007 PCr.LJ 1509; 2010 SCMR 64; PLD 2009 SC 427; 2012 MLD 377; 2007 SCMR 1412; 2009 SCMR 725; 2007 SCMR 1607; 2011 SCMR 171; 2008 SCMR 678; PLD 2007 Kar. 336; 1981 SCMR 1092; 2009 MLD 995; 2012 MLD 111 and Muhammad Haroon v. The State 1994 SCMR 2161 ref.

2010 SCMR 966 rel.

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

----S. 498---Pre-arrest bail filed directly before the High Court---Scope---Normally, a person against whom a case had been registered at the first instance, might approach the original court having jurisdiction i.e. Sessions Court for bail before arrest because propriety so demanded, however, said rule was not an absolute rule as a person could approach the High Court directly by invoking its concurrent jurisdiction depending upon the circumstances of the case.

Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 rel.

Nisar Ahmed Durrani for Applicants.

Syed Madad Ali Shah for the Complainant.

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

2013 Y L R 262

[Sindh]

Before Abdul Rasool Memon, J

Mst. ISHRAT ZAIDI---Appellant

Versus

SABIR HUSSAIN SIDDIQUI and another---Respondents

IInd Civil Appeal No.97 and C.M.A. No.4349 of 2010, decided on 11th September, 2012.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of sale agreement---Ex parte proof of agreement attested by two witnesses and Notary Public---Reason for not examining attesting witnesses was given by plaintiff's brother in affidavit-in-evidence, but not by plaintiff in her affidavit-in-evidence---Validity---Explana-tion furnished by plaintiff's brother for not examining attested witnesses was without corroboration and he being plaintiff's brother was an interested witness---Plaintiff could summon Notary Public to testify as to attestation of such agreement, but she had not done so---Two attesting witnesses being alive could be summoned for evidence through process of court, but had not been called---Such agreement would not be used as evidence without calling its attesting witnesses for proving its execution---Non-examination of attesting witnesses by plaintiff would give rise to presumption that even if they had been examined, they would have not supported her case---Plaintiff had placed on record photocopies of cheque and statement of bank account for showing payment of sale consideration to defendant, but she had failed to examine any witness from bank as to truthfulness thereof---Plaintiff was mandatorily bound to prove her case in accordance with relevant provision of law, but she had miserably failed to do so---Such agreement had no evidentiary value due to non-fulfilment of legal requirement of proof of its execution---Suit was dismissed in circumstances.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Khushi Muhammad v. Liaquat Ali PLD 2002 SC 581 and Muhammad Rafique 7 others v. Noor Ahmed 2007 MLD 1554 ref.

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

----Arts. 17 & 79---Document required by law to be attested---Proof of execution of such document--- Scope--- Document pertaining to financial and future obligations would not be used as evidence without calling its attesting witness for proving its execution---Illustration.

Adnan Ahmed for Appellant.

Date of hearing: 28th August, 2012.

2013 Y L R 268

[Sindh]

Before Nadeem Akhtar, J

Mst. NAZEERAN---Applicant

Versus

S.H.O., POLICE STATION, DAHARKI and another---Respondents

Criminal Miscellaneous Application No.172 of 2012, decided on 7th September, 2012.

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

----Ss. 22-A, 22-B & 154---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace to give directions for registration of F.I.R.---Scope---Complainant (applicant) alleged that several armed persons trespassed into her house and took away valuable articles after beating her---Station House Officer (S.H.O.) refused to register an F.I.R.---Complainant filed application before Justice of Peace under S. 22-A, Cr.P.C seeking a direction for registration of F.I.R., but her application was dismissed---Validity---Justice of Peace was duty bound to grant immediate relief to an applicant if the applicant succeeded in making out a cognizable offence which had not been registered by the concerned police station---Justice of Peace had not mentioned any valid reason to show that prayer made by complainant was declined after proper and full application of mind---Impugned order of Justice of Peace did not deal with the question whether information disclosed before him did or did not constitute a cognizable offence and whether concerned Station House Officer (S.H.O.) refused to register her complaint despite her request---Application was allowed, impugned order of Justice of Peace was set aside with the direction to concerned Station House Officer (S.H.O.) to record complainant's statement and register an F.I.R. if a cognizable offence was made out.

Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 ref.

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

----Ss. 22-A, 22-B & 154---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace to give directions for registration for F.I.R.---Scope---When an oral or written complaint was made before Justice of Peace in respect of an offence, he was bound under S. 22-A(6), Cr.P.C to examine whether information disclosed by the applicant did or did not constitute a cognizable offence, and if it did according to the independent opinion of the Justice of Peace as per facts narrated by complainant, then he was bound to immediately direct the concerned Station House Officer (S.H.O.) to register an F.I.R. without going into the veracity of the information in question---Justice of Peace was bound to give such direction where the concerned Station House Officer (S.H.O.) despite applicant's request or approach, had refused to lodge an F.I.R. in respect of the same cognizable offence which had been alleged before the Justice of Peace---Upon a direction issued by the Justice of Peace, concerned Station House Officer (S.H.O.) would be bound to register an F.I.R. under S. 154, Cr.P.C, whether the information received by him was false or correct , and he had no power to refuse to register the same if the offence appeared to be cognizable from the infor-mation received by him.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 and Salah-ud-Din Khan S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 rel.

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

----Ss. 22-A---Power and functions of Justice of Peace under S. 22-A, Cr.P.C---Nature---Ex-Officio Justice of Peace had no judicial powers and functions to perform under S. 22-A, Cr.P.C, but all his powers and functions were administrative and ministerial in nature, which was the reason he could not go into the veracity of the information disclosed before him by the complainant.

Zulfiqar Ali Naich for Applicant.

Muntazir Mehdi, A.P.G. for Respondents.

2013 Y L R 281

[Sindh]

Before Sadiq Hussain Bhatti, J

M. NASEERUDDIN and 2 others---Petitioners

Versus

SABA NASEER---Respondent

S.M.A. No.47 of 2012, decided on 13th September, 2012.

Succession Act (XXXIX of 1925)---

----S. 278---Letter of Administration, issuance of---Petitioners were husband, son and two daughters of deceased and sought issuance of Letter of Administration---Validity---Independent witnesses confirmed that there were no other legal heirs of deceased except those mentioned in petition and none appeared from any quarter to raise objection despite publication of notice---High Court issued Letter of Administration in favour of petitioners---Application was allowed in circumstances.

Malik Khushal Khan for Petitioners.

Petitioners Nos.1-3 are present in Court.

Respondent No.1 is called absent.

2013 Y L R 284

[Sindh]

Before Aziz-ur-Rehman, J

Ms. UZMA MASOOD and another---Petitioners

Versus

ORIENT COMMUNICATIONS (PVT.) LTD. and another---Respondents

J. M. No.4 and C.M.As. Nos.50 to 52 of 2011 and C.M.As. Nos. 7 and 14 of 2012, decided on 16th October, 2012.

Registration Act (XVI of 1908)---

---S.60---Registered document---Evidentiary value---Such document would operate from date of its execution---Such document would be presumed and/or deemed to be genuine, binding and enforceable under law and its sanctity could not be doubted or questioned, unless same was either cancelled through another registered document or declared as void through court.

Petitioners and their counsel are called absent.

Muhammad Ali Jan for Respondent No.1.

Ravi Panjvani for Respondent No.2.

2013 Y L R 298

[Sindh]

Before Muhammad Ali Mazhar, J

GULSHER and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.213 of 2009 and Criminal Appeal No.S-4 of 2010 and M.A. No.7195 of 2011, decided on 18th April, 2012.

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

---S. 426---Penal Code (XLV of 1860), Ss.302/34/114--- Qatl-e-amd, common intention, abettor present when offence is committed---Application for suspension of sentence on ground of delay in decision of appeal---Contentions of accused persons were that the complainant himself appeared before the High Court and conceded that he had no objection if the appeal was allowed and conviction of accused persons was set aside; that complainant had filed an affidavit in the High Court, wherein he stated that he undertook a personal search for the real culprits of the offence and found that the accused persons were innocent, and that appeal of accused persons was pending for last more than two years and no delay had been caused by them---Validity---Conviction of accused persons was based on evidence, therefore, affidavit of the complainant had little value in the circumstances when the same complainant lodged the F.I.R., fought the case and after awarding of conviction was taking the plea that he had conducted his own investigation and found the accused persons to be innocent---Said affidavit of complainant at best could only be considered as him not objecting to the grant of bail---Order sheets of the case showed that since the date of admission of appeal, the matter was being adjourned for various reasons including reason for want of time, discharge of board or on the request of the accused persons or the prosecution---Entire delay in decision of appeal could not be attributed to the accused persons---Application for suspension of sentence was allowed and sentence of accused persons was suspended, in circumstances.

Ghulam Mustafa v. The State PLD 2011 Kar. 394 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss.302/34/114---Application for suspension of sentence on ground of delay in decision of appeal---Scope---For suspension of sentence and grant of bail, the Legislature had imposed an obligation and res-ponsibility upon the court to first ascertain and examine the cause of delay---Convict might be released by the court on bail, except where it was of the opinion that delay in the decision of appeal had been occasioned by an act or omission of the convict or any other person on his behalf---Such statutory right was subject to the fulfilment of the criteria and decisive factor prescribed under clauses (a) to (c) of S.426(1-A), Cr.P.C.---Court was also to examine essentially, whether the person who had applied for bail was not a previously convicted offender for offence punishable with death or imprisonment for life; or said person was hardened desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Court was not obliged to examine the case on merits and should dilate upon the contentions as agitated while deciding application under S.426, Cr.P.C., for the reason that appraisal of evidence in depth was neither warranted nor desirable while deciding such an application---Court should confine itself to the judgment before it and thorough scrutiny and evaluation of evidence was not appropriate for an application under S. 426, Cr.P.C.---Discretion under S. 426, Cr.P.C. had to be exercised judiciously by considering relevant facts and without entering into or commenting upon the merits of the case---Where contentions raised required consideration of merits, the court would refrain from entertaining such contentions.

Ghulam Mustafa v. The State PLD 2011 Kar. 394 ref.

J.K. Jarwar and Amanullah G. Malik for Appellants.

Sardar Ali Shah Asstt. Prosecutor General for the State.

2013 Y L R 305

[Sindh]

Before Muhammad Ali Mazhar, J

Mst. SHAMEEM---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.430 of 2011, decided on 22nd March, 2012.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 364/380---Kidnapping or abducting in order to murder, theft in dwelling house, etc.---Application for quashing of F.I.R.---Complainant-husband had lodged an F.I.R. alleging that his wife (applicant) had been kidnapped by the accused persons with the intention to kill her---Wife contended that the prosecution story was based on false allegations and she was never kidnapped by any person named in the F.I.R.; and that she had already filed a suit for dissolution of marriage against the complainant-husband, which was pending in the Family Court---Validity---Complainant-husband recorded his statement with the Investigating Officer submitting that he did not want to proceed further with the case and had no objection if the proceedings were quashed---Even otherwise, case record showed that wife had filed a suit for dissolution of marriage against the complainant-husband at least 23 days prior to the present F.I.R.---Case diaries of the said suit revealed that wife was present in the Family Court even on the day of the alleged incident, which belied the contention of the complainant-husband, as it was not possible that wife was residing with the complainant-husband in the same house while she was simultaneously pursuing her suit for dissolution of marriage---Allegations of abduction and kidnapping were found to be false and other allegations which were linked with and derivative/sequel of the charge were also found to be fictitious, conjured and based on mala fides---Sections 364 and 380 P.P.C were not attracted to the present case---Permitting present criminal proceedings to continue would have been an abuse of process of the court---Application was allowed and F.I.R. was quashed, in circumstances.

Rizwana Bibi v. The State 2012 SCMR 94; Rana Shaihd Ahmed Khan v. Tanveer Ahmed and others 2011 SCMR 1937 and Muhammad Aslam (Amir Aslam) v. DPO, Rawalpindi 2009 SCMR 141 rel.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 364/380---Complainant not objecting to quashment of F.I.R.---Effect---After registration of case and submission of challan the court had to see the merits of the case and consider whether any offence was made out or not, despite no objection on part of the complainant for quashment of F.I.R./proceedings.

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

----S.561-A---Penal Code (XLV of 1860), Ss. 364/380---Quashing of criminal proceedings---Principles---High Court in exercise of powers under S. 561-A, Cr.P.C. can quash criminal proceedings even at initial stage, if allegations levelled in F.I.R. or complaint are unrebutted and no criminal case is made out---High Court may also take into consideration any special circumstance to arrive at a conclusion as to whether prosecution should be allowed to proceed with the case in the interest of justice or there is no possibility of conviction of the accused or admitted facts make out a case of civil nature or malicious prosecution is floating on the record and no helpful purpose would be served in permitting criminal proceedings to continue.

Rana Shahid Ahmed Khan v. Tanveer Ahmed and others 2011 SCMR 1937 ref.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 364/380---Quashing of proceedings---Framing of charge---Effect---Framing of charge in the case by Trial Court does not debar burying of the proceedings by way of quashment---No invariable rule of law existed in this regard and it depended on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.

Muhammad Aslam (Amir Aslam) v. DPO, Rawalpindi 2009 SCMR 141 ref.

Achar Khan Gabole for Applicant.

Syed Sardar Ali Shah Assistant Prosecutor General along with A.S.-I./I.O. Sardar Ahmed, Police Station Daharki for the State.

Date of hearing: 22nd March, 2012.

2013 Y L R 319

[Sindh]

Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah, J

Mrs. RUKHSANA YAHYA---Appellant

Versus

NAZAZ ALI and 7 others---Respondents

High Court Appeal No.114 and C.M.As. Nos.2029 and 2290 of 2011, decided on 13th September, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, Rr. 5, 6 & S. 151---Attachment before judgment---Undertaking by defendant not to create any third party interest---Scope---Undertaking not to create third party interest was as effective as an injunctive order against any party and had all its implication and ramification as might flow out of such order including consequences under O.XXXIX R. 4, C.P.C. in addition to contempt for violating such undertaking---Plaintiff impugned order of Trial Court whereby his application to attach property of defendant was dismissed on undertaking given by defendant that no third party interest would be created in the property---Validity---Concern of plaintiff was that Trial Court had recorded in its order that said application was dismissed whereas application was in fact decided in view of undertaking as recorded in the order and therefore, to such extent grievance of plaintiff was to be redressed---High Court directed that application of the plaintiff be deemed to have been disposed of in view of undertaking recorded in the order of Trial Court---Appeal was disposed of, accordingly.

Syed Muhammad Yayah for Appellant.

H.A. Rehmani for Respondents Nos. 1, 6, 7 and 8.

Malik Muhammad Ejaz and Syed Amir Haider Naqvi, for Respondents No.5.

2013 Y L R 328

[Sindh]

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

Mirza ASHFAQ AHMED and others---Appellants

Versus

The STATE and another---Respondents

Criminal Acctt. Appeals Nos. 22, 23, 24, 25, 32, 34 and 36 of 2012, decided on 25th October, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 9(b) & 32---Criminal Procedure Code (V of 1898), Ss. 426 & 561---Sentence, suspension of---Beneficiary of crime proceeds---Proof---Accused were convicted and sentenced by Accountability Court for committing offences of corruption and corrupt practices---Plea raised by accused persons was that they were not direct beneficiaries of earnings made by means of corruption and corrupt practices---Validity---Charges against accused persons were that they had purchased properties or they were Benamidar of properties allegedly purchased from the funds of companies in question but prima facie there was no charge against them for being direct beneficiaries of the companies which were in liquidation---Accused persons were of advance age, who also included four ladies and faced agony of prolonged trial---Accused persons had made out a case of suspending of sentence awarded to them during pendency of appeals---High Court suspended operation of sentences awarded to accused after trial and they were released on bail---Application was allowed in circumstances.

2003 SCMR 22; 2002 MLD 603; 2006 SCMR 1225; PLD 2002 Kar. 497; 2002 YLR 3996; 2012 SCMR 997; PLD 2001 SC 607; 1999 SCMR 2589; Hakim Ali Zardari v. The State 2003 PCr.LJ 154; Muhammad Usman Farooqui v. The State PLD 2003 Kar. 398; Mst. Shaista Shamim v. The State 2007 YLR 37 and Adnan A. Khawaja v. The State 2008 SCMR 1439 ref.

Shaukat H. Zubedi, Ch. Abdul Rasheed, Syed Mehmood Alam Rizvi Shazia Hanjrah, Malik Dashti, Muhammad Ashraf Kazi and Muhammad Junaid Farooqui for Appellants.

Noor Muhammad Dayo, Spl. Prosecutor, NAB for Respondents.

Date of hearing: 25th October, 2012.

2013 Y L R 337

[Sindh]

Before Ahmed Ali M.Shaikh and Salahuddin Panhwar, JJ

Messrs EMAN TEXTILE MILLS through Chief Executive---Petitioner

Versus

GOVERNMENT OF SINDH through Senior Member Board of Revenue/Secretary and 9 others---Respondents

Constitutional Petition No.D-2963 of 2011, and C.M.As. Nos. 7262, 14017 and 14018 of 2012, decided on 14th November, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Res judicata, applicability of--Principle of res judicata was applicable to Constitutional petitions under Art. 199 of the Constitution---Issue involved in a Constitutional petition was no longer open to contest either on questions of law or of facts, by reason of an earlier decision, if the matter in issue, in the subsequent Constitutional petition, directly and substantively, was the same which was involved in an earlier decided Constitutional petition---A party could not be vexed twice in the same jurisdiction, and it was therefore clear that principle of res judicata was a principle of universal applicability.

2008 SCMR 105 and 2012 MLD 902 ref.

Mirza Muhammad Yaqub v. The Chief Settlement Commissioner Lahore and another PLD 1965 SC 254; Muhammad Saleemullah and others v. Additional District Judge Gujranwala and others PLD 2005 SC 511 and Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366 rel.

(b) Res judicata, principle of---

----Party could not be vexed twice in the same jurisdiction---Principle of res judicata was a principle of universal applicability.

Muhammad Iqbal Memon for Petitioner.

Munir A. Malik and Nizamuddin Baluch for the Respondent No.9.

Liaquat Ali Shar Addl. A.G. along with Shah Nawaz Mukhtarkar (Revenue New Sukkur for the State.

2013 Y L R 344

[Sindh]

Before Abdul Rasool Memon, J

MUSLIM COMMERCIAL BANK LTD.---Petitioner

Versus

ABDUL GHAFFAR and 2 others---Respondents

Constitutional Petition No.S-311 of 2012, decided on 16th November, 2012.

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

----Ss.2(j) & 15(2)(ii) [as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2011)]---Registration Act (XVI of 1908), Ss.17 & 49---Constitution of Pakistan, Art.199---Constitution petition---Ejectment---Ground of default in payment of rent for six (6) months and twenty (20) days after expiry of period of unregistered lease agreement requiring tenant to pay advance rent in lump sum on 11 months basis---Tenant's plea while denying such default was that lease agreement, being unregistered would not create any right, title or interest in demised premises---Validity---Tenant after expiry of period of such agreement had become a statutory tenant, thus, terms and conditions thereof relating to rate of rent, time and mode of its payment would remain alive---Tenant had not denied payment of advance rent for each 11 months in lump sum as per such agreement and past practice---Tenant had denied default on first date of hearing by filing written statement---Tenant had paid rent for disputed period through two pay orders with delay exceeding six months, thus, second proviso to S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979 would not apply to the present case---Landlord had not sought enforcement of any right, title or interest on the basis of such unregistered agreement, but had sought eviction of tenant from demised premises---Right of ejectment for being statutory could be enforced in respect of terms specified in lease agreement---Relief of ejectment not being in nature of right or interest enforceable in accordance with lease deed---Unregistered document could be used and received for collateral purposes---Non-registration of lease agreement would not be relevant for disposal of appeal---Ejectment petition was accepted in circumstances.

Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Muhammad Lehrasab Khan v. Mst. Aqeel-Un-Nisa and 5 others 2001 SCMR 338; Amina Nuzhat Babar v. Khan Sher 2002 CLC 1; Akbar Ali and 4 others v. Mst. Hameeda Sahaf 1993 CLC 290; Muhammad Ashraf v. Muhammad Sharif and 3 others PLD 1971 Lah. 610; Naseem Begum v. Mrs. Raeesa Khatoon and 2 others 1997 MLD 1030; Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SCMR 184; Noor Hassan and another v. Tufail Ahmad and another 1980 SCMR 144; Syed Arshad Ali Hashmi v. Khursheed Begum 2001 CLC 690; Syed Izhar Ali v. Mst. Amina Begum through L.Rs. and 2 others 2011 CLC 633; Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781; Sh. Jamilur Rahman v. Akbar Hasan 1985 CLC 922; Mirza Abdul Aziz Beg v. Mushtaq Ahmed Sheikh 1980 SCMR 834; Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246; Zahir Ahmed v. Seth Sugnichand and another PLD 1965 (W.P) Kar. 195 and Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 ref.

Muhammad Asif Rana v. Abdul Majeed Ali M. Sabadia through Attorney and 2 others 2010 CLC 214 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 rel.

(b) Registration Act (XVI of 1908)--

----Ss. 17 & 49---Document requiring compulsory registration--- Scope---Registration of a document would be compulsory, if same would be used as proof for creating, declaring, transferring, limiting or extinguishing in present or in future right, title or interest in an immovable property---Unregistered docu-ment could be received and used for collateral purposes.

Messrs Rehman Cotton Factory v. Messrs Nichiman Co. Ltd. PLD 1976 SC 781 and Shaikh Jamilur Rehman v. Akbar Hassan 1985 CLC 922 rel.

Masood Shaharyar for Petitioner.

Tufail H. Ebrahim for Respondent No.1.

Date of hearing: 10th October, 2012.

2013 Y L R 362

[Sindh]

Before Riazat Ali Sahar, J

ALAM SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.115 of 2004, decided on 30th October, 2012.

Pakistan Arms Ordinance (XX of 1965)---

----Ss. 3 & 13---Criminal Procedure Code (V of 1898), S.103---Recovery of weapon---Appreciation of evidence---Benefit of doubt---Forensic report, value of---Accused was convicted and sentenced for joint recovery of pistols recovered from an abandoned area--- Validity--- Without ascertaining nature of weapon, punish-ment could not be awarded under S.13 of West Pakistan Arms Ordinance, 1965---Ballistic Expert only could ascertain nature of weapon and its condition being functional or not---If weapon was not in working condition it could be presumed as a piece of metal---Ordinary police office did not come within the ambit of "Ballistic Expert"---No evidence was available on record as to who made first information leading to recovery of pistols---Alleged pistols were jointly recovered from a Jungle, therefore, evidence of recovery was not safe to be relied upon---Trial Court as well as Lower Appellate Court failed to consider evidence available on record and investigation was conducted dishonestly, which had rendered entire prosecution case doubtful---Single infirmity creating reasonable doubt to prudent mind regarding truth of charge was sufficient to extend benefit of doubt to accused---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Revision was allowed in circumstances.

Rahim Bux v. State 2010 PCr.LJ 642; Rekatulla v. State PLD 1962 Dacca 261; Khalas Khan v. State 1975 PCr.LJ 172; Abdul Ghani v. State 1976 PCr.LJ 1462; Mohammad Afzal v. State 1983 SCMR 1 and Mushtaq Ahmed v. State PLD 1996 SC 57 ref.

Khalid Hussain Rajpar for Applicant.

Shahid Ahmed Shaikh, Assistant Prosecutor-General for the State.

Date of hearing: 29th September, 2012.

2013 Y L R 375

[Sindh]

Before Muhammad Ali Mazhar, J

Master ABDUL BASIT and another---Plaintiffs

Versus

Dr. SAEEDA ANWAR and another through father ---Defendants

Suit No.997 of 2002, C.M.As. Nos. 10582 and 9842 of 2011, decided on 8th November, 2012.

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

----S. 5 & Art. 164---Civil Procedure Code (V of 1908), O.IX, R. 13---Application for setting aside ex parte decree---Limitation---Condonation of delay---Significant lapses by defaulting party---Effect---Contention of defendant was that due to mishandling of the case by her counsel, she could not file the application in time---Validity---Party that sought condonation of delay under S. 5 of the Limitation Act, 1908 was bound to offer plausible explanation constituting sufficient cause in approach-ing the court---Court was required to dilate upon essentials, which required condonation of delay and same could not be decided in a cursory manner---Delay in filing proceedings could not be condoned lightly unless it was shown that there were sufficient reasons causing the delay---Law of limitation reduced an effect of extinguishment of a right of a party when significant lapses occurred and when no sufficient cause for such lapses, delay or time-barred action was shown by defaulting party, the opposite party was entitled to a right accrued by such lapses---Defendant, in the present case, shifted entire burden on her counsel and record showed that said counsel was associated with all proceedings, and if had committed lapses in his professional conduct, defendant could have taken matter directly to him---Negligence of counsel did not constitute sufficient cause to condone delay and party seeking advantage of S. 5 Limitation Act, 1908 must satisfy the court that it had not been negligent and had been pursuing case with due diligence and care---Application for condonation of delay was dismissed, in circumstances.

(b) Administration of Justice---

----Party to litigation was duty-bound to keep itself informed regarding proceed-ings and progress of the matter and it was also its duty to remain in touch with its counsel and if the counsel was negligent, it is the party who should suffer.

(c) Limitation----

----Civil matters---Valuable rights accrue on expiry of limitation to the other side which cannot be taken away lightly except on making out a case of sufficient cause explaining delay of each day.

Muhammad Shahid Qadeer for Plaintiffs.

Shamsul Hadi for defendant No.1.

Date of hearing: 26th September, 2012.

2013 Y L R 400

[Sindh]

Before Aftab Ahmed Gorar, J

Syed NAZIM HUSSAIN ZAIDI---Petitioner

Versus

IVTH ADDITIONAL DISTRICT JUDGE, KARACHI and 2 others---Respondents

Constitution Petition No.S-998 of 2012, decided on 7th November, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---West Pakistan Family Courts Rules, 1965, R. 6---Suit for dissolution of marriage and recovery of dower---Territorial jurisdiction of Court---Husband's (petitioner) application for return of plaint of the wife on the ground of lack of territorial jurisdiction of the Family Court; was dismissed concur-rently---Validity---In suits for dissolution of marriage or recovery of dower, jurisdiction vested in court within the local limits of which the wife normally resided---Wife, in the present case, was residing at house of her maternal uncle on account of apprehension of abduction at the hands of the husband---Such version of wife was supported by evidence of her brother and therefore, Family Court was fully competent to entertain the suit as the place of residence of wife did fall within its territorial jurisdiction.

PLD 2001 Lah. 188 and 1991 CLC 1078 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Interlocutory orders could not be challenged under constitutional jurisdiction of High Court---Constitutional petition would not lie against any interlocutory order through which the matter had not been decided finally.

Moulvi Iqbal Haider for Petitioner.

Date of hearing: 31st October, 2012.

2013 Y L R 432

[Sindh]

Before Nisar Muhammad Shaikh, J

Mst. SHAH BIBI---Applicant

Versus

NABI BUX and others---Respondents

Civil Revision No.18 of 2010, decided on 26th September, 2012.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---West Pakistan Land Revenue Act (XVII of 1967) S. 172---Rejection of plaint---Exclusion of jurisdiction of civil court---Scope---Plaint was rejected by Trial Court on ground that suit was barred under S. 172 of the West Pakistan Land Revenue Act, 1967---Validity---Issues were framed by Trial Court which also included legal issues, however, it adopted a shortcut procedure to the extent that plaint was rejected without any notice to plaintiff when the matter was not fixed for such hearing and even no application was filed or pending before the Trial Court for disposal---Question of jurisdiction could be raised by defendants, however the same could not be dealt with in the manner conducted by Trial Court---Legal issues framed by Trial Court may be mixed questions of law and fact which were yet to be examined by Trial Court on the basis of material on record---Rejection of plaint was not sustainable in law and orders of courts below were set aside---Revision was allowed, in circumstances.

Anand P. Kamrani for Applicant.

Tasawur Ali Hashmi for Respondents Nos. 3, 4 and 9.

Sharafuddin Mangi, State Counsel for Respondents Nos.13 to 17.

2013 Y L R 443

[Sindh]

Before Riazat Ali Sahar, J

Dr. ABDUL SABOOR---Applicant

Versus

ASSISTANT ENGINEER, TELEPHONE, DIGITAL SATELLITE TOWN, MIRPURKHAS and 2 others---Respondents

Civil Revision Application No.135 of 2010, decided on 1st October, 2012.

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

----S. 42 & 54---Contract Act (IX of 1872) S.2---Suit for declaration and permanent injunction with the prayer that disconnection of plaintiff's telephone connection be declared illegal and defendant Telephone Company Officers be restrained from disconnecting plaintiff's telephone---Suit was dismissed concurrently---Perusal of evidence revealed that the Telephone Company had failed to establish that plaintiff was in possession of the shop where the telephone was installed and said shop was, on the contrary, owned by the Municipal Committee---Telephone Company was under obligation to establish the nexus of the plaintiff with the said shop and was obliged to establish as to why without verification of property documents, said telephone number was installed in the name of the plaintiff---Alleged contract between the company and plaintiff did not show the name of the plaintiff nor signature of any one of the company officers and was therefore neither a "proposal" nor "consideration" within meaning of S.2 of the Contract Act, 1872---High Court set aside concurrent findings of the courts below and decreed the suit of the plaintiff---Revision was allowed, in circumstances.

PLD 2012 Lah. 386 ref.

(b) Words and Phrases---

----"Findings"---Meaning of.

Black's Law Dictionary, 5th Edition, P. 569 rel.

(c) Administration of justice---

----Trial court was required to render its findings on its judicious consideration over pleadings and evidence, and was bound to conclude and form its opinion as required for administration of justice.

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

----O. XLI, R. 31---Judgment in appeal---Judgment of Appellate Court should be in writing and should state points for determination, the decision thereon, reasons for such decision, and where the decree appealed from was reversed or varied, the relief which the appellant was entitled to---Judgment of Appellate Court at the time it was pronounced, should be signed and dated by the judge or by judges concurring therein---Mandatory upon the Appellate Court to give its findings on points of determination as it was a duty entrusted upon it by the Legislature---Appellate Court was to decide finally all questions of fact on which disposal of a suit might depend upon and should not easily agree with the Trial Court.

Dost Mohammad Kolachi for Applicant.

Ghulab Khan Qaimkhani for Respondents.

Date of hearing: 31st August, 2012.

2013 Y L R 454

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD AZAM---Applicant

Versus

Mst. KHURSHEED BEGUM and 9 others---Respondents

Civil Revision Application No.171 of 2010, decided on 11th September, 2012.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Judgment in appeal---Framing of issues in appeal by Appellate Court---Scope---Suit for specific performance was dismissed concurrently---Plaintiff impugned judgment of Appellate Court on the ground that no "points of determination" were framed by Appellate Court and therefore it had not complied with the provisions of O. XLI, R. 31 of the C.P.C.---Validity---Debate as to whether at the time of passing judgment, the Appellate Court ought to have framed points for determination appeared to be immaterial when all material questions as raised were answered by the Appellate Court even though they might not have been framed point by point in numerical order---Framing of points of determination in fact and practically was the same as the issues framed by Trial Court and incorporated in the judgment of Appellate Court---Three ingredients of O. XLI, R.31, C.P.C. stood complied with---Contention that points for determination had not been formulated in a sequential manner appeared to have lost force when all material questions had been answered and no separate findings were required as material points in controversy were addressed---No illegality in orders of courts below existed---Revision was dismissed.

Hafiz Ali Ahmed v. Muhammad Abad PLD 1999 Kar. 354; Saindad v. Province of Sindh 1997 MLD 1009 and 1968 SCMR 464 rel.

2000 CLC 1352; 1992 CLC 1022; 2010 CLC 1931; 1992 CLC 1407 and 1991 CLC 1499 distinguished.

Haji Khan Hingorjo for Applicant.

Saeeduddin Siddiqi for Respondent No.11.

Date of hearing: 4th September, 2012.

2013 Y L R 469

[Sindh]

Before Habib-ur-Rehman Shaikh, J

KASHIF ANWAR---Petitioner

Versus

DISTRICT JUDGE, HYDERABAD and 2 others---Respondents

C.P. No.S-585 of 2011, decided on 17th August, 2012.

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

----S.15---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Proof---Onus to prove---Ejectment application filed by landlord was allowed by Rent Controller on the ground of default in payment of rent by tenant and eviction order was maintained by Lower Appellate Court---Validity---Non-payment of rent was a negative fact and if landlord appeared and stated on oath the he had not received rent for a certain period, it would be sufficient to discharge burden that lay upon him under law and then burden was shifted to tenant to prove affirmatively that he had paid or tendered rent---Only exception to such rule could be where landlord admitted non-issuance of rent receipts---High Court in exercise of Constitutional jurisdiction, declined to interfere in concurrent findings of fact by two Courts below and maintained eviction order passed against tenant---Constitutional petition was dismissed in circumstances.

NLR 1994 SC 49(sic); 1997 CLC 205(c); PLD 1986 SC 154; 1986 CLC 165; 1998 SCMR 2092 and 2009 MLD 367 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Reappraisal of evidence---Principle---High Court in exercise of Constitutional jurisdiction ordinarily does not undertake to reappraise evidence to disturb findings of facts but it would interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of power.

Muhammad Lehrasib Khan v. Mst. Hakimun Nisa 2001 SCMR 338 and Safeer Travel (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504 rel.

Rafiq Ahmed for Petitioner.

Ayatullah Khowaja for Respondent No.3.

2013 Y L R 489

[Sindh]

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

RIZWAN MEHMOOD---Petitioner

Versus

GOVERNMENT OF SINDH through Home Secretary and 4 others---Respondents

Constitutional Petition No.D-2462 and Miscellaneous No.15243 of 2012, decided on 17th October, 2012.

Contempt of Court Ordinance (V of 2003)---

----Ss.3 & 4---Contempt of Court---Direction of Court---Counter affidavit not filed by respondent---Effect---Grievance of petitioner was that authorities (respondent) did not comply with directions of High Court as contained in its earlier order passed in present constitutional petition---Notices were issued to alleged contemnor/ authorities who had denied all adverse allegations---In absence of any counter affidavit filed by authorities to the contents of constitutional petition, High Court declined to examine disputed averments made by petitioner and authorities at such stage---Constitutional petition was dis-missed in circumstances.

Nasir Ahmed for Petitioner.

Zubair Ahmed Rajput for contemnor No.2 along with Rukhsar Ahmed SSP, SRPB-I Karachi contemnor No.2

Anwar holding brief for M.A. Kazi for contemnor No.4.

Saifullah A.A.-G. for the State.

2013 Y L R 504

[Sindh]

Before Abdul Rasool Memon, J

Syed TARIQ SALEEM---Applicant

Versus

MUHAMMAD HANIF---Respondent

Civil Revision Application No.274 of 2010, decided on 25th September, 2012.

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

----Ss.115, 2(2), 96, 100, 102 & O.VII, R.11---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Valuation of subject-matter of suit for purposes of court-fee was Rs.20 lac---Revision---Maintain-ability---Order of Trial Court rejecting plaint on grounds of non-registration of agreement and non-payment of court-fee on plaint upheld by Appellate Court---Revision petition before High Court challenging such findings of courts below---Maintainability---Word "decree" as defined in S.2(2), C.P.C. included order of rejection of plaint, whereagainst first and second appeals would lie under Ss.96 and 100, C.P.C.---No revision could lie in presence of a provision of appeal---Plaintiff for having valued suit at Rs.20 lac could not take benefit of S.102, C.P.C.---High Court dismissed revision petition for being not maintainable in circumstances.

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

----O.II, R.2---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Joint property in possession of plaintiff as tenant of its all owners---Agreement in year 2000 by one co-owner (defendant) to sell his share in joint property to plaintiff---Plaintiff's previous suit for rendition of accounts and partition of joint property filed in year 2001 against defendant and other co-owners thereof dismissed by Trial Court---Ejectment of plaintiff from joint property on the basis of order of Rent Controller passed in ejectment petition filed subsequently by defendant and other co-owners on ground of default in payment of rent---Suit for specific performance of agreement filed by plaintiff during pendency of rent appeal---Maintainability---Plaintiff in previous suit for partition and rendition of accounts had not disclosed that defendant had sold out his share to him, thus, he had relinquished/ omitted to sue defendant and other co-owners in previous suit---Present suit for being hit by O.II, R.2, C.P.C. was dismissed in circumstances.

Naseem Ahmed and another v. Air Botswana (Pvt.) Ltd. and 5 others 1991 MLD 141; Masetay Khan through Legal Heirs v. Mst. Ghulam Fatima alias Gullan and others 2001 CLC 636; Usman and others v. Shahru 1987 MLD 165; Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commis-sioner and 4 others PLD 1993 Lah. 439; Niaz Muhammad v. Mst. Noori 1997 MLD 406; Amjad Ali v. Muhammad Sarwar and others 2001 PCr.LJ 1706; Muhammad Riaz v. Karachi Metropolitan Corporation through Director, Land and Estate and another 2000 CLD 1107 and Qurban Ali v. Hoor Bux and 2 others 1991 CLC 248 ref.

Javaid Mussarat for Applicant.

Nadir Khan Burdi for Respondents.

2013 Y L R 510

[Sindh]

Before Sadiq Hussain Bhatti, J

DANIYAL M. ASLAM---Applicant

Versus

MUHAMMAD WASAM KHAN and another---Respondents

Criminal Revision Applications Nos.28 and 85 of 2012, decided on 1st October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 439 & 516-A---Supredari order, review of---Scope---Application of peti-tioner was allowed by Trial Court and case property was ordered to be handed over to him but subsequently on an application filed by respondent the order was withdrawn and application of petitioner was recalled---Validity---Trial Court had no power under Criminal Procedure Code, 1898, to review its own order and all orders regarding disposal of property were final except ex parte order---Revision application was allowed, earlier order passed by Trial Court was revived as the subsequent order passed with regard to same property was violative of law.

Fazal Hussain v. The State 1976 PCr.LJ 747 rel.

Muhammad Sajjad Abbasi for Applicant (in Criminal Revision No.28 of 2012).

Hamid Munir for Application (in Criminal Revision Application No.85 of 2012).

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

Date of hearing: 25th September, 2012.

2013 Y L R 520

[Sindh]

Before Syed Hasan Azhar Rizvi and Salahuddin Panhwar, JJ

RIZWAN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry and 2 others---Respondents

Constitution Petition No.D-1562 of 2012, decided on 25th July, 2012.

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

----Ss. 25(5) & 25(8)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Delay in conclusion of appeal---Suspension of sentence---Release of accused on bail pending appeal under Anti-Terrorism Act, 1997---Scope---Sentence of five years whether a 'short sentence'---Accused persons were convicted and sentenced by the Anti-Terrorism Court for a minimum term of 5 years imprisonment---Contentions of accused persons were that under S. 25(5) of Anti-Terrorism Act, 1997, appeal had to be decided in seven days, but due to backlog of appeals in the High Court, there was no possibility of conclusion of appeal in near future; that out of total sentence of five years, accused persons had already passed one year in jail and were entitled to bail on grounds of their "short sentence"---Prosecution contended that High Court had no jurisdiction to grant bail in a constitutional (writ) petition and that there was a complete embargo under S. 25(8) of Anti-Terrorism Act, 1997, on grant of bail during pendency of appeal---Validity---High Court could suspend the sentence and grant bail during pendency of appeal under constitutional (writ) jurisdiction in cases of Anti-Terrorism Act, 1997---Accused persons were convicted for five years, which was a short sentence; one year had already elapsed and there was no likelihood of regular hearing of appeal in near future---Apprehension existed that if the accused persons were not released on bail during pendency of appeal, they would undergo their entire sentence before the final decision---Constitutional petition was allowed, sentence awarded by Anti-Terrorism Court was suspended and accused persons were granted bail.

2012 PCr.LJ 387; 2011 YLR 403; 2008 YLR 1255; Muhammad Jehangir v. The State PLD 2003 SC 525; Allah Din and others v. Special Judge, Anti-Terrorism Court PLD 2008 Lah. 74; Muhammad Iqbal v. The State 2008 MLD 1376; Ilyas alias Billu v. The State 2008 MLD 312; Falak Sher v. The State 2008 MLD 103, Ghulam Murtaza v. The State 2007 YLR 1293; Muhammad Imran v. The State 2006 PCr.LJ 657; Nazeer Ahmed v. The State 2005 PCr.LJ 657 and Muhammed Hashim v. The State 2004 YLR 1492 rel.

Aamir Mansoob Qureshi for Petitioner.

Iqbal Rind, A.P.-G. for Respondents.

2013 Y L R 533

[Sindh]

Before Abdul Rasool Memon, J

INAYATULLAH---Applicant

Versus

The STATE---Respondent

Bail Application No.S-128 of 2012, decided on 29th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/395/396/397/398---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)--Qatl-e-amd, dacoity, dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt, attempt to commit robbery or dacoity when armed with deadly weapons---Bail, refusal of---Plea of minority by accused---Scope---Serious and heinous act---Effect---Accused along with the co-accused were alleged to have committed dacoity and on facing resistance one of the co-accused allegedly killed the complainant's brother---Contention of the accused was that as per his medical certificate, he was aged about 16/17 years, and that he was a juvenile offender at the time of the incident, which entitled him for bail---Validity---Ingredients of section 396, P.P.C, were fully attracted to the case---Mere fact that accused was below 16 years of age at the time of incident would not ipso facto entitle him to concession of bail---Every case was to be examined on its own merits and court could not be swayed away on the plea of minority alone---Minority might be one of the considerations but it was not the sole consideration---Under S. 10(7) of Juvenile Justice System Ordinance, 2000, court could refuse bail to a child aged 15 years or above if there were reasonable grounds to believe that such child was involved in an offence which in the opinion of the court was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality---Act alleged against accused in the present case was serious and heinous---Bail appli-cation was dismissed, in circumstances.

Sirajuddin v. Sagheeruddin alias Goga and others 1970 SCMR 30 ref.

Muhammad Sharif v. Shafaqat Hussain alias Shoukat 1999 SCMR 338 and Muhammad Hashim v. The State 2000 PCr.LJ 2151 rel.

Akbar Ali Dahar for Applicant.

Rasheed Ahmed Soomro for the State.

2013 Y L R 543

[Sindh]

Before Riazat Ali Sahar, J

BAHRO MAZARI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-62 of 2012, decided on 24th July, 2012.

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

----Ss. 324/353/402/440/148/149---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, assembling for purpose of committing dacoity, mischief committed after preparation made for causing death or hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused persons were alleged to have fired at a police party which was patrolling the area at the time---Police allegedly arrested the accused persons, recovered weapons from them and found stones and bricks lying on the road which according to the police were there with the intention to commit dacoity---Trial Court convicted and sentenced the accused persons---Validity---Police vehicle which had been allegedly damaged during cross firing was not produced before the court---Weapons and empties collected were not exhibited and no article number was given to them during course of evidence, which showed that mere formality was completed and presumption could be drawn that in the real sense neither property was produced nor was it exhibited with article number---Station diary containing departure and arrival of investigating officer for visiting the place of incident was not produced during the trial---Fact that 11 out of the 13 accused persons were identified in the light of police vehicle at the time of cross-firing, was quite unbelievable---No one from both sides received any injury despite the fact that cross-firing continued for 20 to 25 minutes---Contradiction existed between contents of F.I.R. and evidence of prosecution witnesses (police officials) regarding place of incident---Prosecution did not secure the stones and bricks that were allegedly placed by the accused persons on the road---Accused persons had already been acquitted by the Trial Court in the case against them for possession of illegal weapons---Investigation was conducted dishonestly which rendered the entire prosecution case doubtful---Accused persons were extended benefit of doubt and were accordingly acquitted---Appeal was allowed accordingly.

(b) Criminal trial---

----Benefit of doubt, availability of---Scope---Single infirmity creating doubt---Effect---For the purpose of giving benefit of doubt to an accused more than one infirmity was not required---Single infirmity creating reasonable doubt in a prudent mind regarding truth of the charge was sufficient to give benefit of doubt to the accused.

Muhammad Iqbal Mahar for Appellants.

Ali Raza Pathan, State Counsel for A.A.-G.

Date of hearing: 24th July, 2012.

2013 Y L R 566

[Sindh]

Before Sadiq Hussain Bhatti, J

GHULAM MURTAZA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.762 of 2012, decided on 15th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/489-F/506--- Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque, criminal intimidation---Bail, refusal of---Cheque issued in capacity of a guarantor---Conduct of accused---Dishonest intention to deceive complainant---Effect---Complainant lodged an F.I.R. against his employees for misappropriation of funds---Accused intervened in the matter and undertook to reimburse the amount and consequently issued three cheques to the complainant under an agreement---Said agreement was filed in court on basis of which an employee of complainant was released on bail, however said employee refused to sign the agreement upon his release---Contentions of complainant were that cheques were issued by accused as guarantee and dishonouring of same on account of difference in signature and 'stop payment' instructions of accused clearly demonstrated his dishonest intention---Contention of accused was that employee of complainant had not signed the agreement in question after getting bail, therefore same was incomplete and not binding on the accused, and that allegation against him was merely on the basis of difference in signature, which was not a case of dishonouring of cheque---Validity---Role of accused was that of a guarantor and by way of signing agreement in question he was liable to discharge his liabilities under the said agreement--- Circumstances clearly demonstrated the dishonest intention of the accused to deceive the complainant---Bail application of accused was dismissed in circumstances.

2011 SCMR 1708; 2010 YLR 2685; 2006 YLR 1852; 2007 YLR 1280; 2010 YLR 311; 2010 YLR 332; 2006 PCr.LJ 522; 2007 PCr.LJ 100; PLD 1995 SC 34; 2010 MLD 1063; 2002 MLD 184; 2011 SCMR 1047; 1996 SCMR 1132, and 2007 MLD 926 distinguished.

Amir Hussain v. State 2011 PCr.LJ 265; Riaz Tahir Naqvi v. State 2012 MLD 232; Muhammad Khan v. State 2011 MLD 1288; Wajid Aman v. State 2011 MLD 799 and Muhammad Nawaz v. State 2011 MLD 299 rel.

Kashif Hanif for Applicant.

S. Irshadur Rehman for the Complainant.

Muntazir Mehdi, A.P.-G. for the State.

Date of hearing: 13th August, 2012.

2013 Y L R 581

[Sindh]

Before Naimatullah Phulpoto, J

ABDUL RAHIM---Applicant

Versus

S.H.O. POLICE STATION ADILPUR, DISTRICT GHOTKI and 2 others---Respondents

Criminal Miscellaneous Application No.323 of 2012, decided on 6th August, 2012.

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

----Ss. 22-A, 154 & 561-A---Registration of F.I.R.--- Scope--- Allegation against proposed accused persons (police officials) was that they illegally detained the complainant party (applicant), robbed cash from them, issued threats of dire consequences and demanded illegal gratification---Station House Officer (S.H.O.) refused to lodge F.I.R., whereafter complainant party filed application for registration of F.I.R. under S.22-A, Cr.P.C, before the Justice of Peace, who dismissed the said applica-tion---Validity---No authority vested with an officer in-charge of a police station to hold inquiry into the correctness or otherwise of the information which was conveyed to the S.H.O. for the purpose of recording of F.I.R.---Application submitted before Justice of Peace revealed that the S.H.O. had failed to perform his statutory duty and application under S.22-A, Cr.P.C, had also been dismissed without assigning any sound reasons---Application was allowed, order passed by Justice of Peace was set aside and S.H.O. was directed to record an F.I.R., if cognizable offence was made out.

PLD 2007 SC 539 rel.

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

----S.154---Registration of F.I.R.---Scope---Where there was information relating to the commission of cognizable offence which fell under S. 154, Cr.P.C, the police was under a statutory obligation to enter it into the prescribed register.

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

----Ss. 22-A & 561-A---Constitution of Pakistan, Art. 199---Order of Justice of Peace---Setting aside of/review---Scope---High Court under Art. 199 of the Constitution and under S. 561-A, Cr.P.C, was empowered to review or set-aside an order passed under S. 22-A, Cr.P.C.

PLD 2007 SC 539 rel.

Bakhshan Khan Mahar for Applicant.

Abdul Jabbar Shaikh, DDPP for the State.

2013 Y L R 583

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. SEEMA---Petitioner

Versus

AFTAB AHMED and others---Respondents

Habeas Corpus Petition No.S-1022 of 2012, decided on 22nd October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VII of 1890), Ss. 7, 12 & 25---Habeas corpus petition for recovery of minors---Dismissal---Petition filed belatedly---Mother (petitioner) alleged that her sons (alleged detenus) were in the illegal custody of their father (respondent), who entered her house and forcibly took away the children---Validity---Children were with their father, for the last four to five months and present petition had been filed after lapse of such period without any explanation---After children were removed from her custody unlawfully, mother should have filed a report with the police or made a complaint to concerned authorities in accordance with law---Prima facie, it appeared from the conduct of mother that the children were not removed forcibly from her, therefore, it could not be said that custody of children with their father was illegal or unlawful, within the meaning of S. 491, Cr.P.C.---No proceedings under Guardians and Wards Act, 1890 were pending before Court---No question arose of giving away regular custody of children to either party declaring any of them as guardian under S.7 read with Ss. 12 & 25 of Guardians and Wards Act, 1890 because regular custody was to be decided in the proceedings under the said Act---Petition was dismissed in circumstances, however as an interim arrangement, father of children was directed to leave the children with their mother every week from Friday evening till Sunday evening, after which the mother would return the children without fail, and both parties were further directed not to remove the children out of the city without permission of the court.

Sharfuddin Jamali for Petitioner.

Mazharul Islam for Respondent No.1.

Sharaf Din Mangi for the State.

Date of hearing: 19th October, 2012.

2013 Y L R 603

[Sindh]

Before Syed Muhammad Farooq Shah, J

Mst. FAKHARUNNISA---Petitioner

Versus

HASSAN ALI and 3 others---Respondents

Constitution Petition No.S-671 of 2011, decided on 11th December, 2012.

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

----S.15---Civil Procedure Code (V of 1908), O. I, R. 10---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Dispute over title---Necessary party---Petitioner was ex-wife of landlord and she claimed to be owner of premises and her suit for declaration against her ex-husband (landlord) was pending before civil court---Application for becoming party to ejectment proceedings was dismissed by Rent Controller and the same was maintained by Lower Appellate court---Validity---No case for interference in concurrent findings of facts recorded by two courts below was made out---Petitioner had no locus standi whatsoever to file appeal against ejectment order passed by Rent Controller, which order was not assailed by both the parties contesting rent proceedings---Petitioner claiming herself to be owner of premises, filed appeal before Lower Appellate Court, which had rightly been dismissed by said court---Constitutional petition was dismissed in circumstances.

Shakeel Ahmed v. Muhammad Tariq Farrogh 2010 SCMR 1925; Messrs Mehraj Ltd. v. Miss. Laima Saeed 2003 SCMR 1033; Raza Hussain v. District Judge Vehari 1986 SCMR 1267; Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 and Muhammad Azam and another v. Muhammad Akram 2008 SCMR 1034 ref.

Muhammad Arshad Pathan for Petitioner.

Naimatullah Soomro for Respondents.

Ch. Bashir Ahmed Asstt: A.G. for the State.

Date of hearing: 5th December, 2012.

2013 Y L R 632

[Sindh]

Before Sajjad Ali Shah and Riazat Ali Sahar, JJ

MUHAMMAD AMEEN and 2 others---Petitioners

Versus

GOVERNMENT OF SINDH through Home Secretary, Karachi and another---Respondents

Constitutional Petition No.D-1129 of 2012, decided on 13th September, 2012.

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

----Ss. 384/ 386/ 506/ 511/ 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6(1), 6(2)(k) &7---Constitution of Pakistan, Art. 199---Constitutional petition---Extortion, extortion by putting a person in fear of death or grievous hurt, criminal intimidation, common intention, demand of extortion money (bhatta)---Petition for quashing of F.I.R. and transfer of case from Anti-Terrorism Court, dismissal of---Allegation against accused persons was that on several occasions they entered a factory and demanded extortion money (bhatta) from its owner; that they threatened to commit murder and set the factory on fire, and that they locked the factory by ousting its workers---Contentions of accused persons were that they were members of a labour union and had been implicated in the case due to enmity, and that offence alleged did not fall within the ambit of S. 6 of Anti-Terrorism Act, 1997, therefore it should be transferred to an ordinary court---Validity---Statements of witnesses under S.161, Cr.P.C. fully corroborated the version in the F.I.R.---Statements of prosecution witnesses under S. 164, Cr.P.C. fully supported the main allegation regarding demand of extortion money (bhatta) and consequences in case of non-compliance---F.I.R. reflected that accused persons duly armed with weapons entered into the factory premises and demanded extortion money on several occasions and also locked the factory by ousting its workers, which linked with the definition of terrorism provided in Ss. 6(1) and 6(2)(k) of Anti-Terrorism Act, 1997---Acts alleged against accused persons clearly created sense of fear or insecurity in the society---Accused persons had failed to establish any previous enmity or private vendetta for implicating them in the present case---Neither any application under S. 23 of Anti-Terrorism Act, 1997 had been moved for transfer of case to an ordinary court nor any application under S. 249-A or 265-K, Cr.P.C. for quashment of proceedings, instead accused persons had approached the High Court directly---Constitutional petition was dismissed in circumstances.

2007 SCMR 142 and PLD 2007 SC 571 distinguished.

State v. Azeem Shakir alias Tara 2003 PCr.LJ 762 and Habibullah's case 2005 SCMR 951 rel.

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

----S. 23---Transfer of case from Anti-Terrorism Court to an ordinary Court on grounds of previous enmity---Validity---Case could not be transferred on the basis of previous enmity as same was not the sole criterion to decide such a point.

Nooruddin v. Nazeer Ahmed 2011 PCr.LJ 1370 and Nazeer Ahmed v. Nooruddin 2012 SCMR 517 rel.

Salahuddin Ahmed for Petitioners.

Sher Muhammad K. Shaikh, Additional Advocate-General, Sindh and Khadim Hussain, Deputy Prosecutor-General, Sindh along with I.O. Said Karim for Respondents.

Date of hearing: 13th September, 2012.

2013 Y L R 676

[Sindh]

Before Aftab Ahmed Gorar, J

Dr. ABDUL AZIZ---Applicant

Versus

IIND C & FJ/JM SOUTH and another---Respondents

Criminal Miscellaneous Applications Nos.S-386, S-387 and S-388 of 2011, decided on 14th November, 2012.

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

----S.173---Police report/challan submitted after re-investigation---Power of Magistrate to disagree with such report---Scope---Police report/challan was initially submitted against accused showing him as absconder, however, after re-investigation of the case, F.I.R. was found to be false and another report under S. 173, Cr.P.C. was moved by police for disposal of case in 'B' class---Trial Court disagreed with the police report and refused to dispose of case in 'B' class---Legality---Upon re-investigation of a case if it was found that case was a false one and consequently report under S.173, Cr.P.C. was submitted for its disposal in 'B' class, even then Magistrate was not bound to agree with the conclusions arrived at during re-investigation and Magistrate was fully competent either to agree or disagree with such conclusions---No illegality was found in the order of Trial Court---Application was dismissed accordingly.

2012 MLD 1551; PLD 1999 Kar. 121 and 2004 PCr.LJ 1023 ref.

2000 PCr.LJ 1739 distinguished.

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

----S. 173---Power of Magistrate to disagree with police report/challan---Scope---Magistrate was not bound to agree with the report submitted by police under S.173, Cr.P.C. and he was at liberty either to agree or disagree with the conclusions reached by investigating officer, subject to giving cogent reasons for the conclusion arrived at by him---Magistrate was legally bound to apply his independent mind to the material placed before him and then to form his own opinion about the matter.

2004 PCr.LJ 1023 and 2005 PCr.LJ 560 rel.

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

----Ss. 190 & 173---Cognizance of offence taken by Magistrate after disagreeing with police report/challan---Scope---Magistrate could take cognizance of a case under S.190, Cr.P.C. even where police had submitted report under S. 173, Cr.P.C. for disposal of the case.

Adnan Memon for Applicant.

Abdul Rahman Kolachi, A.P.-G. for Respondents.

Date of hearing: 14th November, 2012.

2013 Y L R 695

[Sindh]

Before Sadiq Hussain Bhatti, J

FAHIM AHMAD---Appellant

Versus

ABID HUSSAIN and another---Respondents

Criminal Acquittal Appeals Nos.512 and 513 of 2010, decided on 22nd October, 2012.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal, dismissal of---Appreciation of evidence---Accused agreed to buy shops belonging to complainant and issued five post-dated cheques as consideration, out of which three cheques were dishonoured on presentation due to insufficient funds---Trial Court acquitted the accused giving him benefit of doubt---Accused contended that cheques in question had been obtained from him forcibly---Validity---Both parties had a bitter relationship with each other due to property issues and cases were pending between them---Relationship between the parties was strained to the extent that they levelled allegations of land grabbing against each other, but no case of such type was brought on record---Reading of evidence showed that right from the beginning, both parties were not sincere in fulfilling their obligations---Evidence brought on record was shaky and untrustworthy---Independent witnesses were not examined by the police---Complainant had failed to prove his case beyond shadow of doubt---Appeal against acquittal was dismissed in circumstances.

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

----S.417(2-A)---Appeal against acquittal---Interference by High Court---Principles---Interference by High Court in an acquittal judgment passed by Trial Court was unwarranted unless acquittal was arbitrary, fanciful, capricious, against the record or against any provision of law---Interference by the High Court could only be made where there was gross misreading of evidence amounting to miscarriage of justice or where Trial Court had disregarded material evidence or received evidence illegally---Acquittal of an accused could not be set-aside lightly in absence of any strong evidence.

The State v. Nayar Mirza 1989 PCr.LJ 1005; The State v. Sikander Hayat 1989 PCr.LJ 1179 and Muhammad Gulzar v. Adalat Hussain 2012 MLD 1321 rel.

Pervez Iqbal Butt for Appellant.

Amir Jamil Virk for Respondent No.1.

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

Date of hearing: 11th October, 2012.

2013 Y L R 705

[Sindh]

Before Aftab Ahmed Gorar, J

Messrs NAJAM HARDWARE STORE through Proprietor---Petitioner

Versus

IMRAN and 16 others---Respondents

Constitutional Petition No.905 of 2010, decided on 22nd November, 2012.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord---Proof---When landlord appears in witness box and makes statement regarding his personal bona fide need, which remains unshattered in cross-examination and unrebutted in evidence adduced by tenant, requirement of law on the part of landlord stands discharged---Even sole testimony of landlord is sufficient to establish his personal bona fide need, if statement of landlord on oath is consistent with his averments made in ejectment application.

2010 SCMR 1925; 2001 SCMR 1197; 1992 SCMR 1296; 2003 SCMR 1398; 2008 CLC 446 and 1997 SCMR 1062 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Eject-ment of tenant---Demand of enhancement of rent by landlord---Effect---Ejectment application filed by landlord on the plea of bona fide personal need was allowed by Rent Controller and Lower Appellate Court concurrently---Plea raised by tenant was that landlord demanded from him enhancement in rent---Validity---Even if any demand was made by landlord for enhancing rent, such demand would not debar them to subsequently seek eviction of tenant on the ground of personal bona fide need which they had succeeded to establish during the course of their evidence---High Court, in exercise of Constitutional jurisdiction, declined to interfere in concurrent orders passed by two courts below---Petition was dismissed in circumstances.

PLD 1982 Kar. 5257; PLD 1978 Kar. 188; PLD 1982 Kar. 790; PLD 1960 SC 266 and 1985 MLD 594 distinguished.

2008 SCMR 28; 2001 SCMR 1700; PLD 2006 SC 214; 2001 CLC 633; 1993 CLC 505; PLD 2000 SC 67 and 2006 CLC 379 ref.

1997 MLD 1; 2008 CLC 431; 1990 SCMR 544 and 1985 SCMR 1996 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction is discretionary, which is meant to foster justice and to remedy wrong but cannot be allowed to be invoked in routine course as additional remedy to hamper findings of fact, correctly recorded by forums below.

Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 and 2010 SCMR 1025 rel.

Mazhar Imtiaz Lari and Syed Zeeshan Ali for Petitioners.

Abdul Rasheed for Respondents Nos. 1 to 16.

Date of hearing: 13th November, 2012.

2013 Y L R 719

[Sindh]

Before Muhammad Ali Mazhar, J

Messrs ELKO ORGANIZATION (PVT.) LTD. through Director---Plaintiff

Versus

RIAZ UL ISLAM and another---Defendants

Suit No.1281 and C.M.As Nos. 10094 and 10095 of 2012, decided on 26th September, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Ad interim injunction, grant of---Misappropriation and embezzlement---Plaintiff claimed that defendant was his employee who purchased suit plot from the money of plaintiff misappropriated and embezzled by him---Plaintiff filed statement along with which he had attached transfer letter according to which plot in issue was transferred in favour of defendant---Validity---Plaintiff apprehended that defendant might not create third party interest in plot in question---High Court issued notice to defendant and in the meanwhile directed him not to create any third party interest in the plot in question---High Court directed the authorities to mark caution on the file of plot in question till further orders of court---Ad interim injunction was granted in circumstances.

Moiz Ahmed for Plaintiff.

2013 Y L R 727

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL WAHAB---Applicant

Versus

MUHAMMAD RAMZAN and 6 others---Respondents

Revision Application No.78 and C.M.A No.235 of 2009, decided on 27th September, 2012.

Civil Procedure Code (V of 1908)---

----Ss.47 & O.XXI, R. 58---Specific Relief Act (I of 1877), Ss.42 & 39---Execution of decree---Investigation of claims/ objections---Suit for declaration and cancellation of sale-deed and other documents was decreed whereafter during execution proceedings, a writ for possession was issued in favour of plaintiff---Application of defendant under O.XXI, Rule 58, C.P.C. for investigation of his right in land that was subject-matter of the decree, was dismissed---Contention of the defendant/applicant was that he was absolute owner of said land vide sale-deed in his favour---Validity---Defendant/ applicant had admitted that purported sale-deed was cancelled and the entries before revenue record also stood cancelled---Right, if any, of the defendant/applicant stood settled in terms of decision of Appellate Court---Successors of the vendee of the alleged sale-deed had also not challenged the cancellation of the sale-deed or entries of revenue record---Trial Court and Appellate Court could not reverse their findings on the ground that entries in the revenue record and the sale-deed were wrongly cancelled as the scope of the suit was not open for grant of such relief---No illegality in the orders of courts below---Revision was dismissed.

Qamar Mahmood Baig for Applicant.

Saeeduddin Siddiqui for Respondents Nos. 1 to 3.

2013 Y L R 736

[Sindh]

Before Naimatullah Phulpoto, J

Mst. RABIA KHATOON---Applicant

Versus

ABBASS ALI and another---Respondents

Civil Revision Application No.20 of 2009, decided on 12th December, 2012.

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

----O. VII, R. 11---Suit for declaration and possession---Rejection of plaint---Res judicata, principle of---Applicability---Plaint was rejected concurrently on the ground that an earlier suit filed by the plaintiff on the same subject matter had been dismissed---Validity---Plaintiff had filed an earlier suit which was dismissed on merits and thereafter plaintiff filed the present suit on the same cause of action after six years, which was hit by principle of res judicata---Court, while considering an application under O. VII, Rule 11, C.P.C. had to examine the plaint and also could look into and examine the undisputed and admitted material that may be made available by the parties on record---Plaint was rightly rejected---Revision was dismissed.

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

----S. 115---Revision---Concurrent findings of fact---No scope for interference in such findings in the exercise of revisional jurisdiction, which was essentially meant for correcting errors of law committed by subordinate courts---Revisional jurisdiction was restricted and narrower.

Haji Muhammad Din v. Abdullah PLD 1994 SC 291 rel.

Ghulam Dastagir A. Shahani for Applicant.

Abdul Karim Surahio for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 4th December, 2012.

2013 Y L R 741

[Sindh]

Before Nadeem Akhtar, J

NASEER MUHAMMAD---Applicant

Versus

MUHAMMAD HAKIM---Respondent

Civil Revision Application No.S-165 of 2011, decided on 20th November, 2012.

Civil Procedure Code (V of 1908)---

----O. IX, R. 9---Limitation Act (IX of 1908) S. 5---Condonation of delay---Suit for recovery---Application for setting aside ex parte decree was dismissed, and defendant/applicant's appeal thereagainst was dismissed in default of appearance---Application under O. IX, R. 9, C.P.C. for restoration of said appeal was dismissed---Said application was filed after a delay of about 11 months---Contention of applicant was that he broke his leg as a result of a road accident and had been advised complete bed rest for two months in support of which claim applicant had provided a "Discharge Certificate" from the hospital---Validity---Perusal of said "Discharge Certificate" showed that date of discharge of applicant from the hospital was the same as day of accident and only "conservative management" and "dressing" were recommended---Said certificate did not mention either that applicant's leg was broken or that he had been advised bed rest---Even otherwise applicant's appeal was fixed about one and a half month after his supposed recovery yet he and his counsel remained absent on the date of hearing---No illegality existed in impugned orders---Revision was dismissed.

Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105 rel.

Ahmed Ali Memon for Applicant.

Date of hearing: 19th October, 2012.

2013 Y L R 765

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHAMSUDDIN---Applicant

Versus

JEEVAT RAM and 4 others---Respondents

Civil Revision No.70 of 2009, decided on 3rd December, 2012.

(a) Administration of justice---

----Procedure---Scope---Provisions of procedure are meant for the sake of administration of justice---Such provisions do not control powers of court for passing order necessary for doing full justice in a case.

Giyani Khan and others v. Sher Ali and 3 others 2005 CLC 686; Province of Punjab and others v. Col: Abid Majeed 1997 SCMR 1692; Baber Hussain Shah and others v. Mujeeb Ahmed Khan 2012 SCMR 1235; Mst. Jahan Ara v. Muhammad Zubair 2012 CLC 1630; Muhammad Farooq v. Engineer-in-Chief G.H.Q 2012 PLC 1335 and Varan Tours v. Province of Punjab 2011 YLR 5 rel.

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

----Ss.12 & 54---Civil Procedure Code (V of 1908), O.IX, Rr.8 & 9---Suit for specific performance of agreement and permanent injunction---Dismissal for non-prosecution---Principles---After framing of issues, on absence of plaintiff, suit was dismissed for non-prosecution---Order passed by Trial Court was maintained by Lower Appellate Court---Validity---Lower Appellate Court had fallen into error by maintaining order of Trial Court---Once issues were framed and Trial Court entered upon recording of evidence, matter had to be taken to its logical end and resort should not be made to its disposal in non-prosecution or default, particularly summary provisions of law as contained in Civil Procedure Code, 1908, for disposal of suit on merits could be invoked---Some shortfall and delay on the part of plaintiff to adduce evidence might exist but it was supreme duty of court to provide fair opportunity to parties who had approached court for redressal of their grievances and court for the sake of larger administration of justice to safeguard valuable rights of parties on merits---High Court set aside order passed by Trial Court and remanded the case for decision on merits---Revision was allowed in circumstances.

Muhammad Naveed Hussain v. Small Business Finance Corporation/SME Bank Ltd., and 2 others 2006 CLD 1486; Shahzaman and another v. Muhammad Aslam and 3 others PLD 1985 Pesh. 35; Muhammad Khan through Legal Heirs and others v. Shabarati PLD 1995 Kar. 267; Sharafat Ali v. Muhammad Boota and another 1985 CLC 1063; Abdul Aleem v. General Public and 5 others 1999 CLC 323; Gul Rahman v. Gul Nawaz Khan 2009 SCMR 589; Bashir Ahmed and others v. Settlement and Rehabilitation Commissioner and others 1982 SCMR 188; Naseem Ahmed v. Haji Usman 1994 CLC 690; Fayyaz Hussain v. Khatim Hussain and others 2010 MLD 163; Malik Gul Hussain v. M. Ayoob and others 1986 SCMR 1349 and M. Anwar Birlas v. M. Ismail Bhatti 1989 SCMR 1091 ref.

Jhamat Jethanand for Applicant.

Muhammad Hashim Memon for Respondents Nos. 2 and 3.

Date of hearing: 26th November, 2012.

2013 Y L R 771

[Sindh]

Before Abdul Rasool Memon, J

ABDUL GHAFOOR alias MULTANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.346 of 2010, decided on 16th October, 2012.

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

----Ss. 302, 324 & 353---Criminal Procedure Code (V of 1898), S. 342---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Power of court to examine accused---Court failing to examine accused on evidence contributing towards his conviction---Effect---Remand of case to Trial Court---Allegation against the accused was that he used criminal force upon police party, prevented them from apprehending him and fired upon them as a result of which a private person died due to fire-arm injuries---Accused was subsequently apprehended in an injured condition having sustained firearm injuries himself and a weapon with live bullets was also allegedly recovered from him---Trial Court convicted accused under Ss. 302, 324 & 353, P.P.C.---Contentions of accused were that Trial Court failed to question him about injuries sustained by him and about the recovery of weapon from his possession, within the meaning of S.342, Cr.P.C., therefore impugned judgment was not sustainable---Validity---Trial Court should have questioned the accused with regard to each and every incriminating piece of evidence available on record thereby enabling him to explain his position---Compliance with provisions of S. 342, Cr.P.C. in accordance with its terms, was indispensible---Interest of justice required remand of case to the Trial court---Impugned judgment of Trial Court was set aside and case was remanded to the Trial Court for its decision afresh with the direction that accused be examined under S. 342, Cr.P.C. and his attention be specifically invited to all incriminating pieces of evidence placed on record and he be provided an opportunity to explain his position thereto---Appeal was disposed of accordingly.

2001 SCMR 56 and PLD 2001 SC 568 rel.

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

----S. 342----Evidence likely to contribute towards conviction of accused---Inter-pretation of S.342, Cr.P.C.---Power to examine accused---Scope---Section 342(1), Cr.P.C. had two parts; the first part gave discretion to the court whereas the second part was mandatory---Under the first part of said section court might put such questions to the accused which might be deemed appropriate in arriving at a just conclusion, whereas, under second part examination of accused was a must because purpose was to point out evidence against him and ask for an explanation---Use of word "shall" in second part of S.342(1), Cr.P.C. signified that examination of accused was compulsory and not optional.

Abdul Razzak for Appellant.

Zahoor Shah, A.P.-G. for the State.

Date of hearing: 5th September, 2012.

2013 Y L R 777

[Sindh]

Before Syed Muhammad Farooq Shah, J

KHURSHEED ALAM---Petitioner

Versus

GHULAM NABI and 3 others---Respondents

Civil Revision Petition No.185 of 2010, decided on 4th December, 2012.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement to sell---Rejection of plaint---Limitation---Agreement of sale was executed in between the parties with regard to suit property on 19-4-2000, sale-deed was to be executed on 25-7-2001 and suit was filed on 23-12-2008---Trial Court and Lower Appellate Court had concurrently rejected the plaint being barred by limitation---Validity---Suit was filed before Trial Court after lapse of years together without any sufficient reason and plausible cause---Such belated suit had rightly been treated as barred by time---High Court declined to interfere in concurrent orders passed by two courts below---Revision was dismissed in circumstances.

Muhammad Mushtaq v. Mst. Abida Nasreen 2008 CLC 1507; Pakistan Agricultural Storage and Services Corporation Limited (Passco) v. Qamar-ul-Islam 2005 YLR 879; Major S.M Hafiz v. Shafqat Ali Qureshi and others 2008 YLR 1287; Abdul Rehman Khan v. Muhammad Altaf and others 1997 CLC 1260; Muhammad Khan v. District Coordination Officer Bakhar 1984 CLC 997; Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and others 2003 MLD 109; Sahib Sultan v. Moula Muhammad Ramzan PLD 2000 Quetta 61; Hafiz Shaikh Anwar-ul-Haque v. Jehan Khan PLD 2011 SC 540; Muhammad Islam v. Inspector-General of Police, Islamabad 2011 SCMR 8; Muhammad Sami v. Additional District Judge 2007 SCMR 621; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453; State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426; Chairman, District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another 1978 SCMR 367; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak) 104; Punjab Province v. The Federation of Pakistan PLD 1956 FC 72; Fazal Elahi Siddiqi v. Pakistan PLD 1990 SC 692; M. Hannan and others v. Dr. Anwarul Hassan and another 2002 SCMR 361; Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2010 MLD 123 and Agra Cooperative Housing Society Ltd.'s case 1994 MLD 1747 ref.

Muhammad Zahoorul Hassan for Applicant.

Khalid Hussain Surhio for Respondent.

Date of hearing: 21st November, 2012.

2013 Y L R 781(2)

[Sindh]

Before Muhammad Shafi Siddiqui, J

CHAND MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-61 of 2011, decided on 14th September, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Prevention of illegal possession of property, investigation and procedure---Impartial investigation---Investigation conducted without examining complainant's witnesses---Propriety---Complainant (applicant) and accused (respondent) entered into an agreement for sale of property---Accused made part payment of the total sale consideration and took possession of the property on the basis that complainant handed over possession himself---Complainant alleged that it was agreed upon between the parties that remaining sale consideration would be paid before taking possession of property in question---Complainant filed complaint under sections 3 and 4 of Illegal Dispossession Act, 2005 against the accused, whereafter an inquiry was conducted and report was prepared which stated that possession of property had been given by the complainant himself without taking the remaining sale consideration---Complainant alleged report of Inquiry Officer was not impartial as it had been prepared without examining the witnesses of the complainant and only witnesses of accused were examined---Validity---None of the impartial witnesses were examined---No iota of evidence existed which could establish that possession of property was handed over to the accused by the complainant himself---Fact that complainant allegedly handed over possession of property without realizing the remaining amount, which was a considerable amount, or without even asking for surety of that amount, was not convincing---Perusal of agreement between parties did not reveal any element of handing over possession of property---Accused had not asked for any receipt of handing over/taking over of possession---Accused had to discharge the burden of the fact as to how and in what manner he came in possession of the property, but in circumstances of the case he failed to do so---Revision application was allowed, inquiry report was declared to be improper, therefore, impugned order was set aside and Inquiry Officer was directed to conduct impartial investigation as prescribed under section 5 of the Illegal Dispossession Act, 2005 and investigate the issues which were subject matter of the complaint by recording evidence of impartial witnesses of the area and also witnesses that had been mentioned by the complainant.

2012 PCr.LJ 52; 2012 PCr.LJ 423 and 2012 PCr.LJ 581 distinguished.

Rahim Tahir's case PLD 2007 SC 423 and 2010 YLR 1982 ref.

Muhammad Arshad Pathan for Applicant.

M. Idrees Naqshbhandi for Respondents.

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

2013 Y L R 786

[Sindh]

Before Muhammad Shafi Siddiqui, J

SOHRAB---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-244 of 2012, decided on 27th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Mixing of samples---Non-association of private witnesses---Border line case between Ss. 9(b) and 9(c) of Control of Narcotic Substances Act, 1997---Effect---Accused was allegedly found in possession of three pouches which contained charas with a total weight of 1250 gms---Although report of chemical examiner was positive but samples taken from each of the three pouches were mixed together and sent for examination in a single pouch, therefore, it would be difficult to ascertain whether each pouch contained charas---Samples from each pouch should have been sent separately---Daylight occurrence but private mashirs were not engaged---Accused was neither a previous convict nor was he involved in cases similar to the present one---Case was one of further inquiry---Accused was granted bail accordingly.

Noor Ali Khan v. State 2003 MLD 637 and 2011 PCr.LJ 177 rel.

Muhammad Shafi Kashmiri for Applicant.

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

2013 Y L R 804

[Sindh]

Before Syed Hasan Azhar Rizvi, J

SAJJIDA BIBI---Applicant

Versus

WASEEM AHMED and 2 others---Respondents

Criminal Revision Application No.203 of 2011, decided on 2nd November, 2012.

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

---S. 7---Determination of age---Accused claimed that he was 17 years old at the time of his arrest---Trial Court allowed application filed by accused under Ss.4 and 5 of Juvenile Justice System Ordinance, 2000 after relying upon his birth certificate and academic records---Contentions of complainant (applicant) were that Medical Board, constituted by the Trial Court, opined that as per bone ossification and physical appearance of accused, he was aged between 19 and 20 years, and that accused had submitted forged birth certificate and academic records before the Trial Court---Validity---Accused had submitted a forged birth certificate as no record for its issuance was available with the concerned department---Only way left to determine age of accused in such circumstances was through medical evidence---Medical Board had opined that age of accused was between 19 and 20 years and his age at the time of commission of offence was not less than 18 years---General appearance of accused revealed that he was not less than 20 years of age---Impugned order of Trial Court was not sustainable in the eyes of law and as such same was set aside---Revision application was allowed accordingly.

Mst. Shabana Kausar v. Farhan Ahmed 2003 PCr.LJ 1507; Baber Shahzad v. The State 2007 YLR 2151 and Banney Khan v. The State 1975 PCr.LJ 453 ref.

Aaquib Rajpar for Applicant.

Ghulam Mustafa Memon and Zia Hussain Shah for Respondent No.1 along with Respondent No.1 in person

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

Muhammad Mehmood Alam,-Sub-Registrar/Incharge Birth Certificate, Jamshed Town, Karachi.

2013 Y L R 817

[Sindh]

Before Sadiq Hussain Bhatti, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Petitioner

Versus

SANA TRAVELS (PVT.) LTD. and another---Respondents

Constitutional Petition No.S-740 of 2009, decided on 23rd October, 2012.

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

----S. 8(1)---Fair rent, fixation of---Landlord's application for fixation of fair rent was allowed by Appellate Court, however, the date from which said fixation would be effective was specified as the date of order---Contention of the landlord was that rent should be fixed from date of institution of rent case---Validity---Fair rent was required to be enforced from the date of application but for fixing a date other than date of application, the Rent Controller was required to assign reasons---High Court remanded matter to Rent Controller with the direction to give reasons for fixing the rate of rent from date of order---Constitutional petition was allowed, in circumstances.

Victor Restaurant v. State Life Insurance Corporation and others 2010 SCMR 745 and Volkat (Pakistan) Ltd. v. Interavia Pakistan Ltd. 2001 SCMR 671 rel.

Masudah Jawad v. State Life Insurance Corporation and another PLD 2007 Kar. 485 and Olympia Shipping Corporation of Pakistan v. State Life Insurance Company of Pakistan 2001 SCMR 1103 ref.

Mian Mushtaq Ahmed for Petitioner.

Muhammad Yasin Azad for Respondents.

Date of hearing: 5th October, 2012.

2013 Y L R 831

[Sindh]

Before Salahuddin Panhwar, J

Mst. ZAREEDAH BEGUM and 2 others---Applicants

Versus

ABDUL RASHEED and 4 others---Respondents

Civil Revision No.32 of 2008, decided on 30th November, 2012.

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

----S.115---Revisional jurisdiction of High Court---Scope---Scope of such jurisdiction would be limited in case of concurrent findings of fact by courts below.

Mst. Hajran Bibi and others v. Sulleman and others 2003 SCMR 1555; Messrs H.A. Rahim and sons (Pvt.) Ltd. v. Province of Sindh and another 2003 CLC 649; Mrs. Zaibun Nissa v. Karachi Development Authority and others PLD 1998 Kar. 348; Abdul Rahim v. Mukhtiar Ahmed and others 2001 SCMR 1488; Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 and Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 ref.

Hakimdino through L.Rs. and others v. Faiz Bakhsh 2007 SCMR 870; Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel.

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

----Arts. 199 & 129(g)---Adverse inference, drawing of---Scope---Such inference could be drawn against a party claiming and relying on a document or specific plea, but not producing evidence to shift its onus to opposite party without any legal justification.

(c) Witness---

----Appearance of attorney as witness instead of his principal---Scope---Attorney could not substitute principal for acts, things and intents explainable and deposable by principal alone.

Asmatullah Khan, A.M. Mobeen Khan for Applicants.

Mian Abdus Sallam Arain for Respondents.

Official respondents served but chose to remain the absent.

Date of hearing: 5th November, 2012.

2013 Y L R 839

[Sindh]

Before Aftab Ahmed Gorar, J

Messrs NAGINA COTTON MILLS LTD.---Appellant

Versus

ASIF DINNAR and another---Respondents

IInd Appeal No.106 of 2011, decided on 31st December, 2012.

(a) Administration of justice---

----Each party would have to establish his case on its footing and could take advantage of weakness on part of opposite party.

(b) Administration of justice---

----Court was not supposed to rely upon words of a party appearing in witness box, rather it would have to evaluate property the evidence produced during trial.

1999 CLC 1358; 2001 SCMR 1700; 2009 YLR 389; 2008 CLD 412; 2008 YLR 2921; 2008 CLC 446 and 2008 CLC 1043 ref.

Muhammad Azhar Mehmood for Appellants.

Aziz-ur-Akhund for Respondent No.1.

Khadim Ali Maitlo for Respondent No.2.

Date of hearing: 5th December, 2012.

2013 Y L R 848

[Sindh]

Before Farooq Ali Channa, J

JAVED PAREKH---Appellant

Versus

MUHAMMAD SAFDAR MALIK---Respondent

Civil Appeal No.4 of 2007, decided on 30th January, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery was decreed by Trial Court after the defendant failed to furnish bank guarantee equal to the claim amount, as ordered by the court while granting the defendant a conditional leave to defend----Contention of the defendant was that said action of Trial Court was arbitrary and bad in law since defendant had a good prima facie case---Validity----Defendant had not disputed the issuance of the nine post-dated cheques which were dishonoured on presentation, however he had contended that the same were issued after a miscalculation of amount payable against interest over the principal amount---Order of Trial Court condi-tionally granting leave to defend was correct in circumstances---Defendant was obliged to make necessary arrangements for his defence, however, in the present case, the defendant was not vigilant, and his case was hit by the maxim that "law would help the vigilant and not the indolent"---Appeal was dismissed, in circumstances.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Qasim 1999 SCMR 2832 and Ali Khan and Co. v. Allied Bank of Pakistan Ltd. PLD 1995 SC 362 rel.

Anwer Ahmed for Appellant.

Aizur Rehman Akhund for Respondent.

Date of hearing: 22nd January, 2013.

2013 Y L R 854

[Sindh]

Before Habib-ur-Rehman Shaikh, J

Syed ZULFIQAR HAIDER and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE-IV and 3 others---Respondents

Constitutional Petition No.S-1157 of 2011, decided on 6th December, 2012.

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

----S.15---Ejectment proceedings---Denial of relationship of landlord and tenant between parites without any concrete proof would not be sufficient.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Ejectment order passed by Rent Controller upheld by Appellate Authority---Validity---High Court could not decide factual controversy, but could decide legal point i.e. mis-reading or non-reading of evidence or illegality committed by courts below in their order or judgment.

Tariq Ali Sheikh v. Khalid Nawaz 1998 CLC 460; Dad Muhammad v. Muhammad Hayat 1996 CLC 1705; Muhammad Siddiq v. Khurram Gulraiz 1998 MLD 624; Mobin Fatima v. Muhammad Yamin PLD 2006 SC 214; Muhammad Siddique v. Fazal Hussain Qureshi PLD 1996 Lahore 252 and Arshad Kamal Khan v. Saeeda Khalid Kamal Khan 1993 SCMR 1360 ref.

Bashir Ahmed v. Roots School Network 2011 SCMR 290 and Faizanul Haq v. Muhammad Nadim 1999 CLC 1233 rel.

Syed Ansar Hussain for Petitioners.

Arshad Hussain and Muhammad Ehsan for Respondents No.3.

2013 Y L R 866

[Sindh]

Before Riazat Ali Sahar, J

ALLAH BACHAYAO alias RIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.170 of 2009, decided on 13th October, 2012.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Accused was alleged to have committed rape with his own daughter/victim---Trial Court convicted and sentenced accused under S. 376, P.P.C.---Validity---Victim narrated the date, time, place and manner of the offence to her mother on the day of the incident----Victim stated the same facts while recording her statement under S.164, Cr.P.C. and while recording her evidence in court, which showed the sanctity of the evidence---Prosecution witnesses fully supported the prosecution version without any material contradic-tion---Evidence of medico-legal officers completely corroborated the version of the victim and specifically opined that victim had been subjected to fresh act of sexual intercourse---Accused had committed the offence of rape by completing all the stages of the offence i.e. intention, preparation, attempt and commission, which were sufficient to establish that accused had intentionally committed rape with his real daughter---Prosecution had established the charge beyond any shadow of reasonable doubt---Appeal was dismissed, conviction and sentence awarded to the accused by the Trial Court were maintained.

Ijaz Ahmed v. State 2010 SCMR 141; Allah Bux v. State PLD 1963 (W.P.), Kar. 684; Golay Khan v. State 1982 PCr.LJ 271; Imdad Hussain v. State 1989 MLD 1671 and Ali Muhammad v. State 2010 PCr.LJ 1950 distinguished.

Raja Mir Muhammad for Appellant.

Zahoor Shah, Assistant Prosecutor-General, Sindh for the State.

Complainant in person.

Dates of hearing: 19th September, 24th September and 13th October, 2012.

2013 Y L R 878

[Sindh]

Before Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ

ASHIQ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-61 of 2011, decided on 25th October, 2012.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence--- Sentence, reduction in---Excise officials arrested the accused from a vehicle on the basis of spy information and found three kilograms of charas in his possession---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to ten years imprisonment along with a fine of Rs. 50,000--- Validity--- Prosecution witnesses gave the same version during their examination---During cross-examination defence counsel failed to bring on record any defect regarding the recovery of charas; separation of samples for chemical examination, and any variation in weight of samples sent to Chemical Examiner---Samples were sent for examination within time and report received in such regard was positive---Nothing on record suggested enmity of prosecution witnesses with the accused---Police officials , who witnessed the arrest and recovery proceedings, were competent witnesses like any other independent witness and their testimony could not be discarded merely on the ground that they were police personnel---Prosecution had proved its case beyond shadow of reason-able doubt but the quantum of sentence imposed upon the accused was harsh---Sentence of accused was reduced from ten years to five years imprisonment and fine was reduced from Rs.50,000 to Rs.25,000 with the benefit of S. 382-B, Cr.P.C---Appeal was dismissed with the said modify-cations.

Abdul Jana v. The State 2010 YLR 2283; Rajab Ali v. The State 2011 YLR 563; Nazeer Ahmed v. The State PLD 2009 Kar.191 and Taj Wali and 6 others v. State PLD 2005 Kar. 128 distinguished.

Ghulam Murtaza and another v. State PLD 2009 Lah. 362; Ameer Zeb v. The State PLD 2012 SC 380 and Naseer Ahmed v. The State 2004 SCMR 1361 rel.

Muhammad Saeed alias Rashid alias Sheda and another v. The State 2011 PCr.LJ 454 and Ayoob Masih v. The State NLR 2003 Criminal 1 ref.

Nisar Ahmed Bhambhro for Appellant.

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

Date of hearing: 11th October, 2012.

2013 Y L R 885

[Sindh]

Before Abdul Rasool Memon, J

GHULAM SARWAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.100 of 2008, decided on 4th December, 2012.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Evidence of complainant was not ocular, but based on hearsay---Prosecution witness had only got recorded incident report in Police after receipt of information about the incident from other prosecution witnesses---Said two star witnesses were father and son inter se and their evidence carried major and material contradictions which indicated that either they were not present at the time of alleged incident, or it had not occurred as was being claimed---Evidence of said witnesses did not inspire confidence and appeared to be untrustworthy---Other two prosecution witnesses who were brothers inter se, had not seen the accused at wardat, their evidence was also hearsay---Medical evidence had only confirmed the unnatural death of the deceased but same would not connect accused with the alleged crime---Recovery of churri was effected seven days after the incident, and evidence of both the Mashirs of recovery was not consistent---Contradiction with regard to recovery of churri had made the alleged recovery highly doubtful---All the witnesses had deposed that said churri was stained with blood, but same was not referred/sent for chemical examination to Forensic Science Laboratory; and no explanation had been furnished by the prosecution in that regard---Prosecution could not establish the motive for which the deceased was allegedly murdered by accused---No one had seen accused while causing injuries to deceased---All the private witnesses and the Police arrived at the place of wardat after the deceased had sustained injuries and died on spot---Accused had been involved simply on the presumption and assumption that he and his father with family were seen going away from their village after the receipt of injuries, deceased was lying on the ground at a distance of 20 to 25 feet away from their house---Nothing probable had been brought on record by the prosecution to complete the chain of evidence which connected accused in the alleged commission of crime---Trial Court seemed to have escaped such points---Impugned judgment for said reasons could not be sustained and was set aside---Accused was acquitted after extending benefit of doubt, in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Varun Chaudhary v. State of Rajasthan AIR 2011 SC 72 and Paramjeet Singh alias Pamma v. State of Uttarkhand AIR 2011 SC 200 ref.

Khalid Javed and another v. The State 2003 SCMR 1419; Varun Chaudhary v. State of Rajasthan AIR 2011 SC 72 and Paramjeet Singh v. State of Uttarakhand AIR 2011 SC 200 rel.

(b) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 and 2008 SCMR 121 rel.

Mahmood A. Qureshi for Appellant.

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

Date of hearing: 22nd November, 2012.

2013 Y L R 891

[Sindh]

Before Aftab Ahmed Gorar, J

AMIN BAZ---Applicant

Versus

The STATE---Respondent

Bail Application No.1275 and M.A No.8557 of 2012, decided on 11th December, 2012.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), S.395---Dacoity---Bail, refusal of---No probability of false implication---Recovery of robbed property at the instance of accused----Effect---Accused allegedly robbed cash and a mobile phone belonging to the complainant---Although accused was neither arrested on the spot nor his name appeared in the F.I.R., but subsequently after an encounter with the police he was arrested in another case and the complainant along with prosecution witness identified accused to be the same culprit who had robbed him---Accused voluntarily led the police towards his house and produced the robbed mobile---Mashirnama of recovery of mobile phone was prepared on the spot in the presence of complainant and prosecution witness---No enmity existed between complainant and accused, therefore, question of false implication of accused did not arise---High Court observed that snatching of mobile phones was rapidly growing in the society and people were being deprived of their valuables on gun point, therefore, grant of bail to accused at present stage would amount to encouraging such offences---Bail application of accused was dismissed accordingly.

Muhammad Iqbal for Applicant.

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

Date of hearing: 11th December, 2012.

2013 Y L R 906

[Sindh]

Before Aftab Ahmed Gorar, J

MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.406 of 2010, decided on 17th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c)---Penal Code (XLV of 1860), Ss. 302(b) & 452---Qatl-e-amd, house-trespass after preparation for hurt---Suspension of sentence---Delay in disposal of appeal---Accused allegedly inflicted hatchet injuries on the deceased in a brutal way for the reason that he (i.e. deceased) did not salute him---Trial Court convicted and sentenced accused under Ss.302(b) and 452, P.P.C.---Contention of accused was that a period of more than two years had passed but his appeal had not been decided within the statutory period as envisaged by S. 426(1-A)(c), Cr.P.C.---Complainant contended that conduct of the accused and the brutal and cruel manner in which he killed the deceased was of such nature which brought him under the category of a hardened, desperate and dangerous offender, and thus disentitled him from any concession due to the prohibition imposed by virtue of proviso to S.426(1-A), Cr.P.C.---Validity---Case order sheets showed that on each date of hearing counsel for accused was in attendance and not a single adjournment had been sought by him, nor disposal of appeal had been delayed on account of any act or omission on part of the accused---Alleged act of accused was not of such a nature which could bring him under the prohibitory clause of S. 426(1-A), Cr.P.C.---No material had been placed on record to show that accused was a habitual or previously convicted offender---Sentence awarded to accused by Trial Court was suspended in circumstances and he was released on bail.

1995 SCMR 1819; 2012 PCr.LJ 1172; 2012 YLR 1013; 2012 PCr.LJ 634; 2012 YLR 825; 2012 YLR 77; Criminal Appeal No.367 of 2010 and Criminal Appeal No.S-84 of 2008 rel.

1992 SCMR 1903; 1994 PCr.LJ 389; 1996 PCr.LJ 740; 1986 PCr.LJ 2184; 1998 SCMR 1749 and PLD 2002 (SC) 43 distinguished.

A.Q. Halepota for Appellant.

Tariq Ali Jakhrani for the Complainant.

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

Date of hearing: 6th December, 2012.

2013 Y L R 911

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD BUKSH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1108 of 2012, decided on 12th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.496-A & 376/34---Enticing or taking away or detaining with criminal intent a woman, rape, common intention---Contra-dictions in statements of alleged victim---Improbable occurrence---Complainant exonerating the accused---Effect---Accused allegedly kidnapped his daughter-in-law, confined her in a house and committed zina with her---Complainant/husband of alleged victim registered the F.I.R. nine days after getting knowledge of the incident---Such delay in lodging of F.I.R. was astonishing---Accused allegedly kept the alleged victim confined in house, wherein other female and children were also living---Question was as to why alleged victim did not disclose the fact of her abduction to the other people living in the house---Even otherwise it could not be explained as to why accused let the alleged victim walk out of the house, where he allegedly confined her and committed zina with her---Complainant and his mother, who were star witnesses of the case, had exonerated the accused from the commission of the offence and stated that case was managed against accused due to enmity---Contradictions existed in statements of alleged victim under Ss. 161 and 164, Cr.P.C---Case was one of further inquiry---Accused was admitted to bail accordingly.

Muhammad Murad v. The State PLD 2012 Sindh 42 and Never Das v. The State 2011 PCr.LJ 1015 rel.

Uroojul Hassan for Applicant.

Khadim Hussain D.P.-G. for the State.

2013 Y L R 918

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL RAHMAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-347 of 2012, decided on 31st December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/337-H (2)/148/149---Qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Delay in conclusion of trial---Whereabouts of complainant and prosecution witnesses not known---Rule of consistency---Co-accused with similar role already granted bail---Effect---Accused and co-accused were alleged to have fired at the deceased---Complainant and prosecution witnesses were not coming forward to record their evidence before the Trial Court despite issuance of non-bailable warrants of arrest against them and publication of notice in a newspaper---Station House Officer (S.H.O.) informed the court that complainant and his witnesses had shifted away to some unknown place and their whereabouts were not known---Such fact was supported by statements of nekmards of the locality---Accused was in jail for the last more than one year and there was no possibility of conclusion of his trial in near future---Co-accused who had been assigned a role similar to the accused was already granted bail, therefore, under the rule of consistency accused also deserved the same treatment and concession---Name of accused appearing on his Computerized National Identity Card (CNIC) was different from his name mentioned in the challan sheet---Probability that accused had been wrongly challaned by a wrong name carried some weight---Accused was granted bail in circumstances.

Mumtaz alias Kukar v. The State 2009 MLD 111 ref.

Mr. Muhammad Iqbal Mahar, for applicant.

Miss. Shazia Surahyo for the State.

Date of hearing: 31st December, 2012.

2013 Y L R 926

[Sindh]

Before Aftab Ahmed Gorar, J

Syed AKHTER SHAH and 2 others---Petitioners

Versus

Mst. SHABANA and 2 others---Respondents

Constitutional Petition No.S-520 of 2011, decided on 21st December, 2012.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minors---Contest between mother and paternal uncles of minors---Application of mother for custody of minors from the brothers of her deceased/father of the minors (petitioners) was allowed by Family Court---Petitioners impugned the said order of Family Court---Validity---Paternal uncles could not look after children in a better way than the real mother---Contention of the petitioners that the deceased father had executed a declaration on stamp paper handing over custody to the petitioners was no ground to deprive a real mother from the custody of minors---Custody of minor could not be settled by a private compromise or even by arbitration and an agreement of such nature could not be enforced---Mere inability to maintain children was no ground for depriving mother from the custody of her children---Constitutional petition was dismissed, in circumstances.

PLD 1970 Kar. 619; 1978 Law Notes SC 22 and 2004 YLR 641 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional juris-diction of High Court was a discretionary jurisdiction, which was meant to foster justice and to remedy wrongs but could not be allowed to be invoked in the routine course so as to hamper the findings of fact correctly recorded by Courts below.

Muhammad Ilyas Warraich for Petitioners.

Ghulam Yasin for Respondent No.1.

Date of hearing: 4th December, 2012.

2013 Y L R 937

[Sindh]

Before Farooq Ali Channa, J

ALI HASSAN and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-461 and M.A. No.2370 of 2012, decided on 8th January, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.342 & 376(i), 511---Wrongful confinement, rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Accused allegedly tried to commit zina with the alleged victim, who was a minor girl---Complainant and prosecution witnesses reached the place where alleged victim was confined and saw that accused had removed his trouser (shalwar) and that of the victim---Accused managed to escape but was subsequently arrested---Fact that accused had removed his trouser (shalwar) and that of the victim clearly pointed to the fact that he had the intention to commit illicit intercourse with the victim---Victim stated in her statement under S. 161, Cr.P.C that accused tried to commit zina with her---No enmity with complainant party was suggested by accused which could have been the reason for his false implication---Delay in lodging F.I.R. had been explained by the complainant by stating that he first reached the nekmards from the accused side to decide the matter--Mashir had also supported recovery of torn clothes belonging to the victim---Bail application of accused was dismissed in circumstances.

Zaher v. The State 2007 SCMR 1178; Muhammad Asif v. State 2004 YLR 378 and Muhammad Naeem and another v. The State 1999 PCr.LJ 463 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.342 & 376(i), 511/34---Juvenile Justice System Ordinance (XXII of 2000), S. 10---Wrongful confinement, rape, attempting to commit offences punishable with imprisonment for life or for a shorter term, common intention---Co-accused allegedly tried to commit zina with the victim, while accused persons were alleged to be standing at the place of occurrence during the incident---Only the presence of accused persons at the time of occurrence was alleged---Vicarious liability of accused persons could not be considered unless some strong circumstance showing their common intention existed---Application of S.34, P.P.C could be considered after recording of evidence of prosecution witnesses---One of the accused was a minor and therefore his case was covered by S. 10 of Juvenile Justice System Ordinance, 2000---Accused persons were released on bail in circumstances.

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

----S. 497---Bail---Delay in lodging F.I.R.---Effect---Mere delay in reporting occurrence to police was not fatal to the prosecution case where occur-rence took place in day time and identity of accused had been disclosed.

Imtiaz v. State 1978 PCr.LJ 740 rel.

Habibullah G. Ghouri for Applicants.

Qazi Muhammad Bux for the State.

Nisar Ahmed G. Abro for the Complainant.

Date of hearing: 8th January, 2013.

2013 Y L R 945

[Sindh]

Before Farooq Ali Channa, J

MASROOR-UL-ISLAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.635 of 2012, decided on 3rd July, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.420 & 489-F---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque---Bail, grant of---Accused allegedly handed over five cheques to the complainant, which got dishonoured on presentation--- Cheques in question were issued by a co-accused in favour of the complainant, therefore, application of S. 489-F, P.P.C against accused was yet to be seen---Section 420, P.P.C was a bailable offence---Sections of Penal Code, 1860 added in the challan did not carry punishment of more than 7 years, hence they did not fall within the prohibitory clause of S. 497, Cr.P.C---Accused was granted bail in circumstances.

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

----S. 497---Bail---Scope---Offence not falling within prohibitory clause of S. 497, Cr.P.C---Bail was a rule and refusal thereof an exception.

Ali Nawaz and Muhammad Ali Lari for Applicants.

Mahmood Habibullah for the Complainant.

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

Dates of hearing: 28th June, 2nd and 3rd July, 2012.

2013 Y L R 954

[Sindh]

Before Syed Hasan Azhar Rizvi, J

ALI HAYAT---Petitioner

Versus

KHOLOD SHAFI and 2 others---Respondents

Criminal Miscellaneous Application No.291 and M.A. No.8155 of 2012, decided on 20th November, 2012.

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

----Ss. 491 & 561-A---Habeas corpus application---Recovery of minor children---Parenting agreement between father and mother of children regarding their custody and visitation rights---Father/applicant and mother of minor children had divorced each other, where-after they entered into a parenting agreement---Contention of father was that children's mother had moved them to a new house and denied him his visitation rights, in violation of the agreement---Contentions of mother were that present application under S.491, Cr.P.C. was incompetent as children were allowed to remain in her custody in pursuance of the Parenting Agreement, and that according to the said agreement all disputes had to be first referred to a mediator---Validity---Execution of Parenting Agreement between father and mother of minors had not been denied---Admittedly custody of children was with their mother---High Court directed that both parties should follow the Parenting Agreement and might sit together to renegotiate the Parenting Agreement keeping in view the best interest and welfare of their children; that as an interim measure the mother would allow the father to meet the children three times in a week for two hours each, and such interim measure would be valid for up to 30 days; that both parties would not remove the custody of minors from the city without any order of competent court; that father would continue to deposit monthly expenses, and that in case of failure to reach an amicable settlement outside Court within 30 days, parties would be at liberty to approach the Guardian Judge for redressal of their grievance---Application was disposed of accordingly.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Muhammad Javed Umrao v. Miss Uzma Wahid 1988 SCMR 1891 and Mst. Chiragh Bibi v. Khadim Hussain PLD 1967 Lah. 382 ref.

(b) Guardians and Wards Act (VIII of 1890)---

----S. 25---Criminal Procedure Code (V of 1898), S.491---Habeas corpus application---Custody of minors/children---Welfare of child, main consideration---For cases pertaining to custody of children, courts were not supposed to go into technicalities of law and should decide the case keeping in view the facts and circumstances of each case, mainly taking into considera-tion welfare of the child.

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

----Ss. 491 & 561-A---Habeas corpus application---Custody of minors---Inherent jurisdiction of High Court---Scope---Ordinarily a petition under S. 491, Cr.P.C was not competent if there was no element of illegal custody, but in the welfare of the child as well as to ensure that rights conferred upon the child were fully protected in a suitable manner, the courts could pass appropriate order in exercise of its inherent jurisdiction.

Salahuddin Ahmed for Petitioner.

Shaikh Jawaid Mir for Respondents Nos. 1 and 2.

Date of hearing: 15th November, 2012.

2013 Y L R 998

[Sindh]

Before Naimatullah Phulpoto, J

FAROOQ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-457 and M.A. No.2394 of 2012, decided on 5th November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---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---Bail, grant of---Benefit of doubt---Further inquiry---Police encounter---Cross-firing---No injuries sustained by either side---No damage caused to police vehicle---Doubtful occurrence---Effect---Accused and co-accused persons allegedly fired upon a police party with sophisticated weapons with the intention to kill---Cross-firing between the parties allegedly lasted for 10 minutes, whereafter accused and co-accused persons allegedly escaped---Accused was arrested during investigation of the case---All prosecution witnesses were police officials, therefore, there was no question of accused tampering with the prosecution evidence---Applicability of S.324, P.P.C was yet to be determined at the trial---Offence alleged was unbelievable since it was alleged that 14 accused persons succeeded in running away after the encounter and police, which was armed with sophisticated weapons, could not arrest any of the accused---Benefit of doubt arising in the present case had to go to the accused---Case against accused required further inquiry---Accused was allowed bail accordingly.

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

----S.497---Bail---Assessment of evidence---Scope---Evidence at bail stage could not be appreciated deeply and only tentative view was to be taken to find out as to whether accused was connected with the commission of the alleged offence or not.

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

----S. 497---Bail---Benefit of doubt---Scope---For purposes of bail, law was not to be stretched in favour of prosecution, and if any doubt arose, its benefit had to go to the accused.

Muhammad Iqbal Mahar for Applicant.

Ali Raza Pathan for the State.

2013 Y L R 1010

[Sindh]

Before Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ

ALI MURAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-26 of 2010, decided on 27th September, 2012.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Police appre-hended accused while on patrol duty and allegedly found 1200 grams of charas in his possession---Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997---Validity---Inconsistencies existed between depositions of both prosecution witnesses (police officials) with regard to number of pieces of charas as well in respect of scribe of F.I.R.---One of the prosecution witnesses stated that F.I.R. was written by Station House Officer (S.H.O.) in his own handwriting, whereas the other prosecution witness deposed that F.I.R. was written by Writer Head Constable (WHC) and statements under S. 161, Cr.P.C were also recorded by said Constable---During recording of evidence of one of the prosecution witnesses three pieces of charas were produced in court, while at the time of recording of evidence of other prosecution witness, two pieces of charas were produced---Investigation officer admitted that property sent back by Chemical Examiner was not produced in court---Sealed samples were sent for examination after a delay of 5 months and 10 days and it was not known as to how recovered property was treated during such period of delay---Conduct and manner in which sample of property was sent to Chemical Examiner and produced in court also created doubt about the prosecution version with regard to recovery of charas as well as number of its pieces---Prosecution could not prove its case against the accused beyond shadow of doubt---Appeal was allowed, impugned judgment of Trial Court was set-aside and accused was acquitted of the charge.

(b) Criminal trial---

---Benefit of doubt---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused made him entitled to its benefit, not as a matter of grace and concession but as a matter of right.

Shahid Abbass v. Shahbaz and others 2009 SCMR 237 and Tarique Parvez v. The State 1995 SCMR 1345 ref.

Nisar Ahmed Bhambhro for Appellant.

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

Date of hearing: 27th September, 2012.

2013 Y L R 1037

[Sindh]

Before Habib-ur-Rahman Shaikh, J

ABDUL HAKEEM CHANDIO---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-301 of 2011, decided on 10th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 516-A---Superdari---For-feiture of surety bond---Record had revealed that the person voluntarily appeared before the Trial Court and stood surety of car, executed surety bond before the Trial Court and bound himself to produce the said car on each and every date of hearing, when and where required and in failure he would pay the surety amount---Neither the car in question was produced by the surety before the Trial Court nor paid surety amount as per bond executed by him---Trial Court repeatedly issued directions to the surety, but he did not produce the said car---When the order was passed by the Trial Court, car in question was handed over to the owner in presence of the surety, and from the very date of release of car, it was not produced before the Trial Court---Accused persons, who were on bail, also absconded from the Trial Court---Many opportunities were given to the surety by the Trial Court to submit the reply, but he failed to do so---Impugned orders passed by courts below, needed no interference, and the directions issued by the Trial Court were upheld---Application filed by surety calling in question impugned orders, was dismissed, in circumstances.

Irfan Ahmed Qureshi for Applicant.

Shahzado Saleem Nahyoon Asstt. P.G. for the State.

2013 Y L R 1044

[Sindh]

Before Habib-ur-Rahman Shaikh, J

MUHAMMAD KAMRAN BEHAN---Appellant

Versus

BOARD OF SECONDARY EDUCATION through Secretary---Respondent

IInd Appeal No.109 of 2011, decided on 29th January, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration seeking change in name of plaintiff was dismissed as being not maintainable under S. 42 of the Specific Relief Act, 1877---Validity---Parties were bound to come to courts with clean hands and according to law; plaintiff had failed to bring his case within the ambit of S. 42 of the Specific Relief Act, 1877 as well as within Art. 120 of the Limitation Act, 1908---Plaintiff changed his name without any cogent reason and without applying his mind as to whether the law permitted him to change his name on his own accord and wish---Plaintiff used his influence to get his name changed in primary school without adopting proper procedure for the same---Plaintiff filed present suit without any cause of action and his suit was rightly dismissed by courts below---Appeal was dismissed, in circumstances.

Rafiq Akhtar Chaudhry v. Azad Jammu and Khasmir Government 1982 SC (AJ&K) 124 distinguished.

Muhammad Hamdan Sheikh v. The Chairman, Board of Secondary Education, Nazimabad, Karachi and 2 others C.P.L.A. No.464-K of 1997 rel.

Ali Hyder Qureshi for Appellant.

Syed Masroor Ahmed Alvi for Respondent.

2013 Y L R 1049

[Sindh]

Before Habib-ur-Rahman Shaikh, J

Mrs. HAMIDA ADIL and 9 others---Petitioners

Versus

SWAMI NARAYAN TEMPLE TRUST, KARACHI and 2 others---Respondents

Constitutional Petition No.S-806 of 2010, decided on 11th December, 2012.

(a) Sindh Rented Premises Ordi-nance (XVII of 1979)---

----S.15---Ejectment petition against dead person---Not competent.

(b) Sindh Rented Premises Ordi-nance (XVII of 1979)---

----S.15---Ejectment petition---Default in payment of rent by tenant---Burden of proof---Assertion of landlord on oath not to have received rent for disputed period would shift burden upon tenant to prove its payment.

1979 SCMR 182; PLD 2009 SC 183; 2006 CLC 71; 2007 MLD 1700; PLD 2001 SC 415; 2007 SCMR 761; PLD 2006 SC 457; 2011 CLC 19; PLD 1981 SC 522; 1993 SCMR 212 and Feroze Ahmed v. Zehra Khatoon 1992 CLC 735 ref.

(c) Sindh Rented Premises Ordi-nance (XVII of 1979)---

----Ss.15 & 21---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment proceedings---Constitutional petition challenging orders of Rent Controller and Appellate Court---Jurisdiction of High Court---Scope---High Court under Art.199 of the Constitution had no jurisdiction to serve purpose of second appeal against impugned orders---High Court would not embark upon re-examination of evidence to evaluate merits of impugned orders.

Muhammad Latif v. District Judge, Karachi (South) 2009 YLR 2234 rel.

Tanveer Ahmed and Moiz Ahmed for Petitioners.

Neel Keshov for Respondent No.1.

Date of hearing: 1st November, 2012.

2013 Y L R 1057

[Sindh]

Before Habib-ur-Rahman Shaikh, J

ADNAN KHAN---Petitioner

Versus

ABDUL HAFEEZ and 2 others---Respondents

Constitutional Petition No.S-1137 of 2012, decided on 4th December, 2012.

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

----S. 15---Constitution of Pakistan, Art.199---Ejectment order passed by Rent Controller upheld by Appellate Authority---Dismissal of appeal on 10-5-2012---Certified copy of appellate order applied on 3-7-2012 and delivered to petitioner on 5-7-2012---Constitutional petition filed on 9-10-2012 i.e. with delay of 162 days---Validity---Petitioner had not explained such delay---High Court dismissed constitutional petition in circumstances.

Zafarullah Khan v. Abu Bakar 1995 CLC 23; Fatimun-Nisa v. Zubaida 1990 SCMR 750; Ashraf Bibi v. Muhammad Amin 2008 SCMR 1434; State Life Insurance Corporation of Pak. v. Kotri Textiles Mills (Pvt.) Ltd. 2001 SCMR 605; Noor Muhammad v. Muhammad Bhai 1984 CLC 2443; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280; Mitho Khan v. Abdul Jabbar 2003 SCMR 46; Umahani Fikree v. Taufiq Fikree 2009 YLR 891; Shahid Hussain v. Judge Family Court 2010 YLR 2061 and Ayub v. Nisar Ahmed 2008 SCMR 703 ref.

Muhammad Din v. Abdul Ghani 2012 SCMR 1004 rel.

Muhammad Abid Rajput for Petitioner.

Mehboob Elahi Saleem for Respondent No.1.

2013 Y L R 1065

[Sindh]

Before Aziz-ur-Rehman, J

Syed SHAHID ALEEM---Plaintiff

Versus

MUHAMMAD AKHTAR GILL and 2 others---Defendants

Suit No.781 of 2004, decided on 20th February, 2013.

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

----S. 12---Sindh Chief Court Rules (O.S.), Rr.128, 129 & 130---Specific performance of sale agreement---Suit agreement alleged by plaintiff to have been executed in his favour by owner of suit plot through its earlier purchaser under imperfect sale agreement---Striking off plaint against earlier purchaser due to non-payment of process-fee by plaintiff for issuing him summons---Effect---Plaintiff had not filed fresh plaint against earlier purchaser, though he could do so subject to limitation---In absence of any plaint against earlier purchaser, plaintiffs claim against owner of suit plot through earlier purchaser was incompetent in law and unjustified.

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

----S. 12---Specific performance of contract---Powers of Court---Scope---Such relief being an equitable relief neither claimable as a matter of right nor grantable in routine manner---Principles.

Specific performance is an equitable relief and notwithstanding provisions of Specific Relief Act, 1877 usually it is not granted in routine manner and merely because of any contract. Relief of specific performance, indeed, is in the nature of an indulgence and not as a matter of right for him, who is seeking such relief. Even in the cases of valid contract, specific performance can be granted or refused on the basis of equitable consideration.

Ali Muhammad Khan (represented by his heirs) v. Riazuddin Khera PLD 1981 Kar. 170; Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others 2000 YLR 1513; Chiragh Din v. Muhammad Siddique 2003 MLD 345; Mst. Ferozi v. Muhammad Aslam and another 2001 MLD 401; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Ibrar Hussain v. Khalid Hussain and 3 others 2004 YLR 432; Nazir Ahmad v. Sher Muhammad 2005 YLR 2727; Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743 ref.

(c) Tort---

----Damages, grant of---Scope---Damages could not be granted under law in absence of evidence.

Sabir Hussain for Plaintiff.

Shahid Qadeer Suharwardy for Defendants No.1.

Nemo for Defendant No.2.

Ejaz Mubarrak Khattak for Defendant No.3.

Date of hearing: 7th February, 2013.

2013 Y L R 1088

[Sindh]

Before Aftab Ahmed Gorar, J

ZEHRI and 2 others---Applicants

Versus

NIAZ HUSSAIN and 19 others---Respondents

Criminal Revision No.S-81 of 2011 M.A. No.2706 of 2011 and M.A. No.278 of 2012, decided on 11th February, 2013.

Illegal Dispossession Act (XI of 2005)---

----S.3---Criminal Procedure Code (V of 1898), S.265-K---Illegal dispossession, complaint against---Complainants, had alleged that, accused duly armed with weapons, claiming to be owners of land in question, dispossessed the complainants from said land by illegally and forcibly occupying the same---Application filed by accused persons under S.265-K, Cr.P.C. for their acquittal was dismissed by the Trial Court---Validity---No offence could be made out against applicant/accused person, as the dispute was entirely of civil nature which had been converted into criminal proceedings with ulterior motives---Proceedings pending before the Trial Court, were quashed, in circumstances---Complainants were at liberty to approach the competent court of law to get their grievance redress, in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

Pir Bux Bhurgri for Applicants.

Niaz Hussain Panhwar for Respondents Nos.1 to 16.

Shahzado Saleem Nahyoon, Asstt. P.G.

Date of hearing: 11th February, 2013.

2013 Y L R 1103

[Sindh]

Before Abdul Rasool Memon, J

Messrs HILAL TRADING COMPANY through Managing Director---Petitioner

Versus

SWAMI NARAIN TEMPLE ESTATE and 2 others---Respondents

Constitutional Petition No.S-109 of 2007, decided on 12th January, 2013.

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

----S. 15---Ejectment petition---Filing of written statement by tenant, but his failure to appear and file affidavit-in-evidence on specified date resulted in closure of his evidence---Effect---Nothing was available on record to controvert landlord's contention except written statement of tenant---Written statement of tenant could not be treated as evidence, unless he was subjected to cross-examination in witness box---Written statement filed by tenant had no evidentiary value.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 rel.

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

----O. VI, R. 1---Qanun-e-Shahadat (10 of 1984), Art. 133---Written statement---Evidentiary value---Written statement could not be treated as evidence and would have no evidentiary value without subjecting its maker to cross-examination in witness box---Principles.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 rel.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art. 133---Ejectment petition---Illegal construction raised by tenant over roof of demised premises---Failure of tenant to cross-examine version of Administrator of landlord-Trust contained in his affidavit-in-evidence---Effect---Where pivotal points/specific portion of evidence was not challenged rather remained unrebutted during cross-examination, then same would be deemed to have been admitted---Ejectment petition was accepted in circumstances.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Sheraz Tufail v. The State 2007 SCMR 518 and Dr. Javaid Akhtar v. The State PLD 2007 SC 249 rel.

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

----Art. 133---Cross-examination---Pivotal points/specific portions of evidence went unrebutted and unchallenged---Effect---Such portions of evidence would be deemed to have been admitted.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Sheraz Tufail v. The State 2007 SCMR 518 and Dr. Javaid Akhtar v. The State PLD 2007 SC 249 rel.

(e) Sindh Rented Premises Ordi-nance (XVII of 1979)---

----S.15--Constitution of Pakistan, Art.199--Constitutional petition--- Ejectment petition---Illegal construction raised by tenant over roof of demised premises---Ejectment order passed by Rent Controller upheld by Appellate Court---Tenant's plea was that alleged construction was raised in the year 1979, whereas tenant filed rent case in 1998 i.e. after twenty years, thus, such ground would be deemed to have been waived and not maintainable in law---Validity---Tenant had not raised such plea before Rent Controller, but had raised same during arguments before Appellate Court---Tenant could not raise such plea in constitutional petition as plea of waiver was a mixed question of fact and law---Such plea could not be allowed to be raised in appeal unless same was raised before Trial Court and parties were given opportunity to lead evidence in support and rebuttal thereof---High Court dismissed constitutional petition in circumstances.

Amina Begum v. Iqbal Hussain 1988 CLC 1816; Shafqat Ali Khan v. Mahboob Alam 1993 MLD 219; Zainab Bai and 2 others v. Shafiuddin PLD 1987 Kar. 116; Mukhtar Ahmed v. IIIrd Additional District Judge and others 2004 MLD 713; Habib Bank Limited v. Mohammad Raza 1997 MLD 833; Mohammad Saeed v. United Bank Limited, Karachi 1993 CLC 1830; Mushtaq Ahmad and others v. Mehmood Ahmad and others 2005 CLC 1827; Pakistan State Oil Company Limited v. Sikandar A. Karim and others 2005 CLC 3; Mst. Suriya Sultan v. M.I. Malik 1988 MLD 2936; K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332; Khalifa Fateh Mohammad v. Ahmad Nasir Khan 1988 SCMR 689; Lal Khan through Legal Heirs v. Mohammad Yousaf through legal heirs (PLD 2011 SC 657; Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others PLD 1957 SC (Ind.) 346; Mst. Bilqis Sultana v. Settlement Commissioner Lahore and 2 others PLD 1975 Lahore 185; Danish Iqbal v. Syed Zaheerul Hasan 1986 CLC 981; Anjuman Himayat-e-Islam, Lahore v. Dr. Syed Farooq Hassan PLD 2007 SC 352; Masooda Begum through legal heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90; Mohammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mohammad Sharif and another v. Mohammad Afzal Sohail and others PLD 1981 SC 246; Abdul Aziz Butt v. Mohammad Arshad and another 1985 MLD 148; M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991 SC 317 and Lithocraft Corporation v. A. Habib through his 9 Legal Heirs 1988 CLC 272 ref.

Danish Iqbal v. Syed Zaheerul Hassan 1986 CLC 981 rel.

(f) Waiver---

---Appeal---Constitutional petition--Raising of plea of waiver---Scope---Such plea for being mixed question of fact and law could not be allowed to be raised in appeal and constitutional petition, unless same was specifically raised before Trial Court and parties were given opportunity to lead evidence in support and rebuttal thereof---Principles.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Waiver, plea of---Maintainability---Scope.

Danish Iqbal v. Syed Zaheerul Hassan 1986 CLC 981 rel.

Rafiq Ahmed Kalwar for Petitioner.

Neel Keshav for Respondents.

Dates of hearing: 20th November and 11th December, 2012.

2013 Y L R 1111

[Sindh]

Before Syed Muhammad Farooq Shah, J

USMAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-107 of 2010, decided on 27th November, 2012.

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

----Ss. 302(b), 337-A(i), 337-L(2) & 504/34---Qatl-e-amd, causing Shajjah-i-Khafifah, causing hurt, intentional insult with intent to provoke breach of the peace, common intention---Appreciation evidence---Benefit of doubt---Evidence available on the record was in no way sufficient to lead to the conclusion that accused could be convicted of offence alleged against them---Trial Court had seriously erred by observing that the prosecution had succeeded to bring home the charge against accused beyond shadow of reasonable doubt---Findings of the Trial Court were not based on any valid evidence---Court had to juxtapose both the conflicting evidence in order to arrive at a conclusion as to which one of them to be chosen for reliance as true---Occurrence was a day time incident in thickly-populated area, but no respectable inhabitants of the locality had come forward to have witnessed the occurrence---Statement of prosecution witnesses regarding witnessing the occurrence being not confidence-inspiring, same could not be relied upon without independent corroboration---Trial Court having acted mechanically by pronouncing the judgment in haphazard manner, said judgment suffered from legal infirmity, lacunas, whimsical and arbitrary, without exhibiting least application of judicial mind---Related inimical and interested witnesses produced by the prosecution in the case, two of them had been disbelieved by the Trial Court, and the prosecution had failed to receive any independent corroboration, so as to believe that said eye-witnesses were trustworthy---Prosecution had failed to prove its case against accused beyond reasonable doubt---Conviction and sentence of accused person recorded by the Trial Court, were set aside, accused were acquitted of the charge by extending benefit of doubt to them and were released.

Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1; Muhammad Aslam and another v. The State PLD 1978 SC 298; Abdul Razik v. The State PLD 1965 SC 151; Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR 26; Muhammad Ali and another v. The State and another 2005 PCr.LJ 830; A.R Awan and 2 others v. City District Government, Karachi and another 2011 SCMR 691 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.

(b) Criminal trial---

----Proof---Onus---Onus always lay on the prosecution to prove its case; and the prosecution had to succeed upon the strength of its own case and not on the weakness of defence---Accused had only to show a dent having created in the case of the prosecution; and that he was entitled to benefit of even single doubt depicted in the prosecution evidence; and he had not to show that it was a case suffered from more that one doubt.

(c) Criminal trial---

----Benefit of doubt---More than one infirmity was not required, for the purpose of giving benefit of doubt to an accused, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers, would make the whole case doubtful---Merely because the burden was on accused to prove his innocence; it would not absolve the prosecution from its duty to prove its case against accused beyond any shadow of doubt; and that duty would change or vary in the case---Finding of guilt against an accused, could not be based merely on the high probabilities that could be inferred from evidence in a given case---Mere conjectures and probabilities could not take the plea of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Ms. Riffat Memon for Appellants.

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

Date of hearing: 22nd November, 2012.

2013 Y L R 1135

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

GHULAM SARWAR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.261 of 2012, decided on 6th February, 2013.

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

----Ss.6, 7 & 23---Penal Code (XLV of 1860), Ss. 386, 387, 506(2), 504 & 337-H(2)---Criminal Procedure Code (V of 1898), 5.526---Act of terrorism, extortion by putting a person to fear of death, or of grievous hurt in order to commit extortion, criminal intimidation and rash and negligent act---Application for transfer of case to .regular court---Complainant had alleged in F.I.R. that two months prior to the incident, accused had demanded `Bhatta' from him, but no F.I.R. of the incident was lodged---F.I.R. and other material collected during investigation revealed that no offence triable under Anti-Terrorism Act, 1997 was made out, for the reason that element of striking of terror, or creation sense of fear and insecurity in the people, or any section of the people was made out---Ingredients of extortion of money as defined in S.6(2)(k) of Anti-Terrorism Act, 1997, were not made out from the fact of the case---Anti-Terrorism Court, therefore, had no jurisdiction to try the case---Impugned order was suffering from illegality, and was not sustainable under the law--Application was allowed by the High Court with direction to the Trial Court to transfer the case to the Court of Session, having jurisdiction in the matter, in circumstances.

Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 rel.

Shahab Sarki for Applicant.

Khadim Hussain Khoonhari, Deputy Prosecutor General, Sindh for the State.

Date of hearing: 6th February, 2013.

2013 Y L R 1147

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

BEHRAM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.310 of 2009, decided on 29th January, 2013.

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

----S.9(c)---Recovery of narcotic (Charas)---Appreciation of evidence---Sentence, reduction in---Excise officials, evidence of---Quantum of sentence---During raid 18 kilogarm of Charas was recovered from accused and Trial Court convicted and sentenced him to imprisonment for life---Plea raised by accused was that he was father of four children and sole supporter of his family and had already served 15 years of sentence---Validity---Evidence of Excise officials was as good as that of any other person until and unless mala fide was brought on record against them---No specific mala fide was brought n record against Excise official and the evidence was corroborated by positive Chemical Report---Charas was recovered from the possession of accused on 20-7-2007 and samples were sent to Chemical Examiner for analysis on 21-7-2007---Positive report of samples was placed on record and mere production of attested copy of positive chemical report in evidence would not be fatal to prosecution case---Prosecution succeeded to prove its case against accused and Trial Court had rightly appreciated evidence brought on record---High Court maintained conviction of accused but reduced sentence of imprisonment for life to already undergone.

Abdul Razzak for Appellant.

Khadim Hussain, Deputy Prosecutor General, Sindh for Respondent.

Date of hearing: 29th January, 2013.

2013 Y L R 1158

[Sindh]

Before Salahuddin Panhwar, J

MUSHTAQUE AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.563 of 2012, decided on 7th December, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abettor present when offence is committed, common intention---Bail, refusal of---Day time incident---Specific allegation---Ocular evidence corroborating medical evidence---Effect---Accused party allegedly intercepted the complainant side and started firing upon them---Accused was specifically alleged to have caused firearm injuries to the deceased---Incident was a day time occurrence---Name of accused with a specific role transpired in the F.I.R. as well as in statements under S.161, Cr.P.C.---Prosecution witnesses disposed in the same line before the Trial Court and categorically stated that accused had caused the fatal firearm injury to the deceased---Ocular and medical evidence were in the same line to the effect that firearm injuries were caused to the deceased, who succumbed to the said injuries---Case of accused did not fall within the meaning of S.497(2), Cr.P.C.---Bail application of accused was dismissed in circumstances.

PLD 2009 SC 58; 2009 MLD 796 and 1995 SCMR 1316 distinguished.

Muhammad Abbasi v. State 2011 SCMR 1606 rel.

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

----Ss. 497 & 498---Bail---Material to be relied upon by court---Scope---While deciding a bail application the courts have to mainly rely upon the material brought on record by the prosecution, including F.I.R., statement of complainant, statements under S. 161, Cr.P.C as well as incriminating/circumstantial evidence etc.--Said documents/statements were not to be thrashed in such a manner that would result in deeper appreciation of evidence or material which was not permissible within scope of Ss. 497 and 498, Cr.P.C.

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

----Ss. 497 & 498---Bail---Delay in lodging F.I.R.---Effect---Delay in lodging F.I.R. per se was no ground for claiming bail.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Bail---Ocular and medical evidence---Conflict in seat of injuries---Scope---Slightest difference about seat of injury in ocular and medical evidence could not be termed as a 'conflict'.

Ubedullah K. Ghoto for Applicant.

Sikander Ali Siyal and Mehfooz Ahmed Awan for the Complainant.

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

2013 Y L R 1168

[Sindh]

Before Habib-ur-Rahman Shaikh, J

YOUSUF KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.93 of 2012, heard on 8th November, 2012.

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

----S. 377---Juvenile Justice System Ordinance (XXII of 2000), S. 4(3)---Unnatural offence (sodomy)---Appreciation of evidence---Accused had allegedly committed sodomy with the victim (complainant's son)---F.I.R. was lodged with a delay of about one day, which had not been plausibly explained by the complainant---Record revealed that accused was arrested prior to the lodging of F.I.R.---Incident was reported to have taken place at 12 noon, while victim in his statement under S. 164, Cr.P.C. disclosed that same took place at 10-30 a.m.---Complainant reported that he was sitting at his shop when his son/victim came there, but did not disclose the facts of the incident, whereafter complainant took his son home, where he (son/victim) disclosed the incident and name of the accused---Contrary to such version of complainant, prosecution witness deposed that he was present at the shop when complainant's son/victim came there and in his presence disclosed the fact of sodomy and also took the name of the accused---According to examination of doctor age of accused was 16 years at the time of the incident, therefore, Trial Court was bound to refer the matter to the Juvenile Court, which it failed to do---Due to absence of Examiner analysis, victim was not examined by the Trial Court---Accused was entitled to be acquitted on the basis of evidence placed on record and the illegality and irregularity committed by the Trial Court---Appeal was allowed, conviction and sentence awarded by Trial Court was set aside and accused was acquitted of the charge.

Amjad Ali v. The State 1985 PCr.LJ 428; Bacho alias Abdul Jabbar v. The State 1981 PCr.LJ 299; Naseer Ahmed v. The State 2004 SD 1041 rel.

Muhammad Afzal v. The State 2005 PCr.LJ 74; Rafique Ahmed v. The State 2005 PCr.LJ 193; Abdul Khattab v. The State 2003 YLR 535; Allah Warayo v. The State 1968 PCr.LJ 466; Muhammad Haneef v. The State 2002 PCr.LJ 1235; Jehangir v. The State 2011 PCr.LJ 960; Moulvi Noor Muhammad v. The State 2000 PCr.LJ 1583; Ghulam Raza v. The State 2003 MLD 1924 and Afsar Zamin v. The State PLD 2002 Kar. 18 ref.

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

----S. 2(b)---Juvenile accused---Prose-cution, duty of---Where accused was a child, then it was the duty of the prosecution, when it produced documents through witnesses, to disclose the real facts.

S. Mukhtar Hussain Shirazi for Appellant.

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

Date of hearing: 8th November, 2012.

2013 Y L R 1178

[Sindh]

Before Naimatullah Phulpoto, J

MUMTAZ ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-270 of 2012, decided on 16th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss. 379, 427, 462-B & 462-C---Prevention of Anti-National Activities Act (VII of 1974), S. 13---Theft, mischief causing damage to the amount of fifty rupees, anti-national activities---Interim pre-arrest bail, confirmation of---Unwitnessed offence---Implication on basis of spy information---Belated statements of prosecution witnesses---Effect---Accused was alleged to have committed theft of oil from a pipeline which passed through his land---Accused contended that there were mala fide on part of the complainant and police, and that instead of arresting the real culprits, he was falsely implicated because the oil pipeline passed through his land---Validity---Theft of oil was unwitnessed---Name of accused was disclosed on basis of spy information---Statements of prosecution witnesses under S.161, Cr.P.C were recorded after 12 days of registration of F.I.R. for which apparently there was no explanation---During investigation no material was collected to connect accused with the commission of the offence---Ingredients of alleged offences were yet to be determined at trial---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Faiz Muhammad Larik for Applicant.

Miss Shazia Surahio, State Counsel.

2013 Y L R 1184

[Sindh]

Before Abdul Rasool Memon, J

IFTIKHAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.473 and 515 of 2011 and M.A. No.5468 of 2012, decided on 19th October, 2012.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---F.I.R., revealed that incident was unseen---Material contradic-tions existed in two statements of the prosecution witnesses, one given in the deposition and other under S.164, Cr.P.C.---Improvement in the statement of said witness recorded before the Trial Court had been purposely made by him in order to bring his evidence in line with statements of other witnesses---No implicit reliance could be placed on the statement of such witness who made improvement in his statement---If deposition of that witness recorded in court was to be taken as correct, then many questions would arise which would make the very statement of that witness doubtful---Conduct of witness about not telling anyone about occurrence till third day, appeared to be unnatural and created an impression that he had not witnessed the occurrence---Statement of witness of last seen, had no independent corroboration except the evidence of last seen which too was weak type of circumstantial evidence for basing conviction---Witness had given contradictory statement in respect of his recording statement under S.164, Cr.P.C. and holding of identification on very day which was belied by the documentary evidence---Identification parade in the case was held after 10 days of arrest of accused persons---No explanation of any sort was on record for inordinate delay in holding the identification parade---Witnesses of identification did not point out at accused person by scribing their role during the identification parade---Identification parade, which otherwise was weakest type of evidence, was delayed one and also was not held in accordance with settled procedure and created shadow of doubt upon the identification of accused---Statement of witness of recovery, was contradictory to the memo of recovery---Contradiction existed in the statement of complainant narrated in F.I.R. and recovery memo with regard to recovery of dead bodies of the deceased---Accused were able to create dent in the prosecution case and its benefit should be given to accused, not as a matter of grace or concession, but as a matter of right---Conviction and sentence of accused person recorded by the Trial Court were set aside, accused were acquitted and were released, in circumstances.

Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914; Muhammad Ramzan and another v. The State 2011 YLR 2379; Muhammad Ashraf v. The State 1986 PCr.LJ 2209; Dhani Bux v. The State 2011 PTD 1419; Rahat v. Muhammad Ismail and 2 others 2002 SCMR 233; Nadir Khan v. The State PLD 1992 Federal Shariat Court 390; Qassim and others v. The State 2004 PCr.LJ 181; Muhammad Ashiq v. The State 1990 PCr.LJ 368; Esso and 2 others v. The State 2004 MLD 1423; Ghulam Rasool v. The State 2002 MLD 7; Inayatullah v. The State 2002 PCr.LJ 34; Ghulam Akbar and another v. The State 2008 SCMR 1064; Ahmed Jan v. The State PLD 2005 Quetta 110; The State v. Muhammad Haroon and 2 others PLD 2006 Karachi 20; Ashraf Ali and another v. The State 2001 YLR 505; Taha v. The State 2003 YLR 166; Abdul Wahid v. The State 2012 YLR 374; Abdul Majeed v. The State 2012 YLR 841; Maqsood v. The State 2012 YLR 986 and Dadan alias Allahdad v. The State 2000 MLD 595 ref.

1980 PCr.LJ 685; AIR 1996 SC 3471; PLD 1978 SC 21; 1994 SCMR 137; 2001 SCMR 769; 2003 YLR 1364; PLD 1991 SC 718; PLD 1978 SC 21 and 1995 SCMR 1345 rel.

Muhammad Sharif for Appellant.

Shamsul Hadi for Appellant.

Abdul Razzak for Appellant.

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

Date of hearing: 16th October, 2012.

2013 Y L R 1193

[Sindh]

Before Farooq Ali Channa, J

SHAH NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.S-154, S-167 of 2009 and M.A. No.6060 of 2011, decided on 24th December, 2012.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Injured witness---Credibility of testimony---Benefit of doubt---Recovery of crime weapon---Out of twelve accused persons, ten were acquitted by Trial Court and two were convicted and sentenced to imprisonment for life---Validity---Three eye-witnesses of occurrence out of which presence of injured witness having injury on his person was proved, however, the stamp of fire-arm injury on his person was not per se tantamount to stamp of credence of his testimony and was not proof of credibility and truth of his evidence---Evidence of such witness was to be considered keeping in view the circumstances of case and other evidence collected by Investigating Officer during investigation---All witnesses were fully aware of having knowledge of the kind of weapons and it was alleged against one of the accused that he was armed with rifle and caused rifle shot injury to injured prosecution witness whereas according to prosecution one Kalashnikov was recovered on his pointation and not rifle---Recovery of rifle was made with delay of three months after the incident and six days after arrest of accused---Mashirnamas of recovery of weapons did not show that weapons were sealed at the spot, no forensic report regarding working condition of weapon was exhibited during trial---Trial Court did not appreciate prosecution evidence according to settled principles---On the same evidence co-accused were acquitted while accused persons were convicted without assigning sound reasons though prosecution case against accused persons more or less to some extent was also in the same line as that of the case of co-accused who have been acquitted---High Court set aside conviction and sentence awarded to accused persons by Trial Court and by extending benefit of doubt, they were acquitted of the charge---Appeal was allowed in circumstances.

Rahat Ali v. The State, 2010 SCMR 584; Muhammad Saddiq v. The State PLD 1960 SC 223; Sahab Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984 SCMR 930 and Syed Muhammad Shah v. The State 1993 SCMR 550 ref.

Amanullah G. Malik for Appellant.

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

Date of hearing: 10th December, 2012.

2013 Y L R 1200

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMAMD SIDDIQUE and another---Petitioners

Versus

MUHAMMAD RIAZ and another---Respondents

C.P. No.S-182 of 2010, decided on 21st December, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings of fact by courts below--- Scope--- High Court in Constitutional jurisdiction cannot interfere with such findings particularly when no illegality or impropriety is pointed out.

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

----S.15---Ejectment of tenant---Default in payment of rent---Proof---Shifting of onus to prove---Applicability---Non-payment of rent is a negative aspect and if landlord appears in court and states on oath that he has not received rent for certain period, it would be sufficient to discharge burden that lies under law upon him and onus then shifts to tenant to prove affirmatively that he had paid or tendered rent for period in question.

Allahdin v. Habib PLD 1982 SC 465 and Alifdin v. Khadim Hussain 1980 SCMR 767 rel.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlords---Proof---Ejectment application filed on the ground of bona fide personal need of landlords and default in payment of monthly rent was allowed by both the courts below---Validity---Real test whether premises was required for personal use was whether need was based on good faith---Such being a question of fact and finding on the subject could not be taken exception to unless it was shown that it suffered from violations of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence---Nothing solid or concrete evidence could be brought on record in rebuttal by tenants showing that need of landlords was imaginary or based on mala fide---Tenants failed to show any illegality, gross irregularity or infirmity in findings recorded by both the courts below---Landlords successfully established on record that concurrent findings recorded by two courts below were in accordance with law and evidence available on record which were sustainable on record and were maintained---Petition was dismissed in circumstances.

PLD 1995 Lah. 470; 2004 MLD 587; 2003 SCMR 1398; Sulleman v. Karim PLD 1986 Kar. 344; Syed Arshad Ali Hashmi v. Khursheed Begum 2001 CLC 690; PLD 1982 SC 465; 1997 CLC 216; Mst. Shirin Bai's case 2006 SCMR 117; Jehangir Rustam Kakalia's case 2002 SCMR 241; United Bank Ltd. v. Mrs. Alafia Hussain 1999 SCMR 1796; Iqbal Book Depot and others's case 2001 SCMR 1197; Mehdi Nasir Rizvi's case 2000 SCMR 1613; Shakeel Ahmed and another's case 2010 SCMR 1925; Zarina Ayaz v. Khadim Ali 2003 SCMR 1398; 2008 CLC 1271 and 1987 CLC 686 ref.

Mrs. Razia Ali Zaman for Petitioners.

Ghulam Muhammad Shad for Respondents.

Date of hearing: 18th December, 2012.

2013 Y L R 1215

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

KOURO and 5 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-97 of 2007, decided on 18th December, 2012.

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

----Ss. 302, 324, 353 & 427---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, possession of illegal weapons, acts of terrorism---Appreciation of evidence---Police encounter---Consistent witness statements---Medical evidence corroborating ocular version---Effect---Accused persons, who belonged to a group of dacoits, attacked the police party during an encounter, which resulted in death of three police officials and also caused injuries to four others---All witnesses supported the prosecution case and reiterated their earlier statements recorded during investigation---No material discrepancy was found in statements of witnesses, which could be termed as material contradiction---Ocular version was substantiated by natural and credible witnesses, including injured witnesses/ police-officials---Arrest of accused persons at the place of occurrence along with sophisticated weapons was proved through trust-worthy evidence--- Prosecution witnesses/police-officials were cross-examined at length, but defence failed to shake their credibility and veracity---Although one co-accused was acquitted by Trial Court on basis of his plea of alibi, but present accused persons never claimed/agitated such defence plea---Acquitted co-accused had not examined any witness in his defence nor produced any document to substantiate his plea of alibi, therefore, prosecution case could not be made doubtful on basis of acquittal of said co-accused---Although private witnesses were not arranged, but in circumstances of the occurrence, it was neither practical nor advisable to arrange private witnesses as it would have amounted to putting lives of private persons in danger---Medical evidence was not in contradiction with ocular evidence---Prosecution successfully proved the charge against accused persons through an unbroken chain of ocular, medical and circumstantial evidence---High Court dismissed appeal of accused persons, and issued show-cause notice to the acquitted co-accused to show as to why judgment of acquittal in his favour should not be set-aside---Case was remanded to the Trial Court to consider acquittal of co-accused.

Akram alias Akroo v. The State 2012 PCr.LJ 1132; 2012 PCr.LJ 986; Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178; Muhammad Khan and others v. The State 1999 SCMR 1220; Tariq Pervez v. The State 1995 SCMR 1345; Mir Ali and 3 others v. The State 1990 PCr.LJ 2042; Leemon v. The State 2007 YLR 211; 1995 SCMR 599; State v. Muhammad Yasin Memon alias Yasin Memon and another 2011 SCMR 401; Muhammad Rafique and others v. Sharafud-din and others 2006 SCMR 340; Khadim Hussain v. The State 2010 SCMR 1091; Muhammad Ishaq v. The State 2009 SCMR 135; Muhammad Aslam v. Shabir Hussain 2009 SCMR 985 and Hayatullah Khan v. Muhammad Khan 2001 SCMR 1354 ref.

(b) Criminal trial---

----Acquittal of co-accused---Rule of consistency, benefit of---Scope---For getting benefit of rule of consistency, accused had to show that he stood in the same shoe as that of acquitted co-accused, otherwise, rule of consistency would not apply.

(c) Criminal trial---

----Police witnesses, credibility of---Scope---Credibility of police witnesses could not be disbelieved merely on the plea that they were police officials---Police officials were as good as other witnesses.

(d) Criminal trial---

----Interested witness---Scope---Interested witness was one who was partisan or inimical towards the accused or had motive or cause of his own to falsely implicate the accused in the crime.

Talib Hussain and others v. The State 2009 SCMR 825 ref.

(e) Criminal trial---

----Witness--- Conviction based on testimony of sole witness---Scope---Conviction could be based on testimony of a sole witness, if court was satisfied that such witness was reliable-Emphasis was always upon the quality and not quantity (of evidence).

2008 SCMR 917; Niazuddin and another v. The State 2011 SCMR 725 and Shamshad Ali v. The State 2011 SCMR 1394 rel.

(f) Criminal trial---

----Medial evidence---Evidentiary value---Scope---Medical evidence was always a corroborative piece of evidence and would not prevail over ocular evidence.

(g) Medical jurisprudence---

----Firearm injuries, nature of---Scope---Blackening by smoke and unburnt gun powder surrounding firearm injuries would not only depend on the distance from which shot was fired but also on the kind and quantity of gun powder used in the cartridge, and on the length of barrel and size of barrel diameter at muzzle end.

Wahid v. The State PLD 2002 SC 67 ref.

Zubair Ahmed Rajput for Appellants.

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

Date of hearing: 27th September, 2012.

2013 Y L R 1241

[Sindh]

Before Naimatullah Phulpoto, J

ASIF ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-432 of 2012, decided on 5th November, 2012.

(a) 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---Probability of false implication---Delay in sending samples for examination---Effect---Police allegedly apprehended accused while on patrol duty and found him in possession of 1250 grams of charas---During investigation 1250 grams of charas was sent to chemical examiner for report but chemical examiner received only 1200 grams---Such discrepancy of 50 grams had not been explained by the prosecution---Prima facie, it was yet to be determined at trial, whether offence fell under S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997---Present case was a border-line case---All prosecution witnesses were police officials, thus there was no question of accused tampering with the evidence---Contraband material was sent to the office of chemical examiner six days after registration of the case---Constitutional petition had also been filed against police officials by a relative of the accused---False implication of accused could not be ruled out---Accused was admitted to bail, in circumstances.

Ibrar v. State 2008 PCr.LJ 1449 and Nazam Hussain v. State 1998 PCr.LJ 164 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 51---Narcotics offences---Grant of bail---Scope---Despite the bar contained in section 51 of Control of Narcotic Substances Act, 1997, Court could grant bail in a case, which it found fit, after taking into consideration the overall facts and circumstances of the case.

Jai Jai Veshno Mange Ram for Applicant.

Ali Raza Pathan for Respondent.

2013 Y L R 1256

[Sindh]

Before Naimatullah Phulpoto, J

GHULAM YASEEN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-477 of 2012, decided on 5th November, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Possession of illegal weapon---Bail, grant of---Further inquiry---Bail already granted in connected F.I.R.---Report of ballistic expert not obtained---Enmity with police alleged---Challan already submitted in court---Effect---Accused allegedly fired at a police party with the intention to kill---Accused was subsequently arrested and found in possession of an unlicensed Kalashnikov---Two separate F.I.Rs. were registered against accused, one under Ss.324 and 353, P.P.C. and the other one (present F.I.R.) under S. 13(d) of Pakistan Arms Ordinance, 1965---Accused was already granted bail for the F.I.R. under Ss. 324 and 353, P.P.C.---All prosecution witnesses were police officials---Kalashnikov allegedly recovered from accused was not sent to ballistic expert for report---Challan had already been submitted and there was no question of tampering with prosecution evidence---Accused had also alleged enmity with the police---Case was one of further inquiry---Accused was admitted to bail in circumstances.

Habibullah G. Ghouri for Applicant.

Abdul Rasheed Soomro for the State.

2013 Y L R 1275

[Sindh]

Before Naimatullah Phulpoto, J

JUMAN SOLANGI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-45 of 2007, decided on 20th November, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Prosecution evidence had not been properly appreciated by the Trial Court in accordance with settled principles of law---Complainant who had only implicated accused, had clearly stated that remaining accused persons present in the court, were not the same---No reliance could be placed upon such type of evidence of the complainant, who was an interested witness---Prosecution witnesses had not furnished proper explanation as to for which purpose they had gone to the abandoned Railway Station and why they did not narrate the fact to the complainant promptly that they had seen the deceased in the company of accused persons at abandoned Railway Station---Motive had also not been established---Entire episode related to hand of the daughter of a person, but that person had not been examined by the prosecution---When prosecution case was that accused was annoyed with deceased, then it was unbelievable that deceased went with accused to an abandoned place---When the basic foundation of prosecution case crumbled down, the motive would become inconsequential---Accused admitted guilt before the Investigating Officer during the investigation, and such piece of evidence had been brought on record by the Trial Court and it had been believed; whereas under the law admission before the Police Officer during investigation was inadmissible in evidence under Arts.38 & 39 of the Qanun-e-Shahadat, 1984---No incriminating article was recovered from the possession of accused after his arrest---Prosecution witnesses having admitted that they were related to the complainant, their evidence required corroboration from some independent piece of evidence---Prosecution case rested upon circumstantial evidence in the shape of last seen evidence of prosecution witnesses---Prosecution had failed to establish that deceased was last seen with accused, because there was a long gap, and possibility of other person coming in between existed---In absence of other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt of accused---On one set of evidence, co-accused were acquitted by the Trial Court---Trial Court failed completely to appreciate all features of the case as well as quality and credibility of the evidence brought on record---Error in appreciation of evidence was apparent on the face of record---Prosecution had failed to prove its charge against accused beyond reasonable doubt---Judgment of conviction of accused being based upon mis-appreciation of evidence and apparent violation of settled canons of criminal jurisprudence, conviction and sentence, were set aside and accused was acquitted of the charge and was released, in circumstances.

Ali Nawaz Ghanghro for Appellant.

Imtiaz Ahmed Shahani for Respondent.

Date of hearing: 13th November, 2012.

2013 Y L R 1284

[Sindh]

Before Abdul Rasool Memon, J

MASHKOOR AHMED---Appellant

Versus

ABDUL MAJEED and 2 others---Respondents

Criminal Acquittal Appeal No.118 of 2011, M.As. Nos. 1505 of 2012 and 488 of 2013, decided on 31st January, 2013.

Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Limitation Act (IX of 1908), Ss.29(2)(b) & 5---Appeal against acquittal---Limitation---Condonation of delay---Scope---Appeal had been filed with delay of 17 months and 6 days---Appellant to maintain appeal, had to explain each day's delay, but he failed to do that; and explanation offered was without any substance---Appellant could not blame any one else for said delay and unawareness was not a ground of condonation of delay---Under provisions of S.417(2-A), Cr.P.C., right of appeal had been provided against acquittal to an aggrieved person, and the limitation of 30 days was prescribed in said section---Special limitation prescribed by statute itself was not subject to the application of S.5 of the Limitation Act, 1908 due to bar contained in S.29(2), (b) of Limitation Act, 1908---Case of the appellant was not that he was prevented by some act of the respondents coming in court in time---Conduct of the appellant and his explanation for such inordinate delay appearing to be unreasonable---Appeal was dismissed being barred by time.

State v. Nazir Ahmad 1999 SCMR 610 and Mst. Zeenat Sultan v. Mumtaz Khan and 9 others PLD 1994 SC 667 distinguished.

Abdul Ghaffar and others v. Mst. Mumtaz PLD 1976 SC 572; Dil Muhammad v. Riayasat Hussain and 3 others PLD 2001 (AJ&K) 4; NIB Bank Limited, Karachi v. The State and 3 others 2010 CLD 10 and The State v. Ahmed Bakhsh and others 2012 PCr.LJ 1835 ref.

Noor Hussain v. Muhammad Salim 1985 SCMR 893 and Roshan v. Muhammad Saleh and 2 others 2008 MLD 187 rel.

Ms. Syeda Sara Kanwal for Appellant.

Sami Ahsan for Respondents Nos.1 to 3.

Abdullah Rajput, A.P.-G. for the State.

2013 Y L R 1297

[Sindh]

Before Muhammad Tasnim and Aziz-ur-Rehman, JJ

MUHAMMAD ABID and 9 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.D-440 of 2012, decided on 20th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 190 & 173---Cognizance of offence by Magistrate---Direction for submission of challan after disagreement with police report---Scope---Police submitted its report under S. 173, Cr.P.C. and requested disposal of case under 'B' class---Trial Court disagreeing with the police report, directed investigating officer to submit challan under S. 190, Cr.P.C. as in its opinion there was material on record to connect accused persons with the crime---Legality---When a police report under S.173, Cr.P.C. was submitted to the Magistrate, he was required to either agree with the police report for cancellation or where he did not agree with such report, he could order further investigation of the case, and in case, no further investigation was required to be conducted, the Magistrate should take cognizance of the offence in terms of S. 190, Cr.P.C.---Trial Court, in the present case, had rightly taken cognizance of the case as according to it there was ample material available with the prosecution to substantiate the charge---Application was dismissed in circumstances.

Peer Ghulam Dastagir and 2 others v. The State 2007 YLR 930 and Muhammad Farooq Qureshi v. Judicial Magistrate Section 30 and 2 others 2010 PCr.LJ 261 distinguished.

Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023 and Muhammad Akbar v. The State 1972 SCMR 335 rel.

Qalandar Bux Laghari for Applicants.

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

Date of hearing: 14th November, 2012.

2013 Y L R 1302

[Sindh]

Before Ahmed Ali M. Shaikh, J

Haji FARMAN ALI KOLACHI---Applicant

Versus

SESSIONS JUDGE and 2 others---Respondents

Criminal Miscellaneous No.S-220 of 2011, heard on 27th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Illegal encroachment by complainant---Mala fides---Effect---Comp-lainant filed application under S. 22-A(6), Cr.P.C. before Justice of Peace alleging that proposed accused persons (government officials) entered into his house and dispossessed him from his lawful property by demolishing his house---Justice of Peace dismissed said application--- Validity--- Committee appointed to inquire into the issue concluded that allegations levelled by complainant were false; that complainant had illegally occupied property of District Council, and that accused persons were removing such illegal encroachments---Neither complainant furnished any proof with regard to his ownership over the subject property nor any allotment order was produced---Application was dismissed accordingly.

Abdul Sattar N. Soomro for Applicant.

Sohail Ahemd Khoso for proposed accused.

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

Date of hearing: 27th August, 2012.

2013 Y L R 1311

[Sindh]

Before Habib-ur-Rehman Shaikh, J

SHAFQAT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-197 of 2012, decided on 19th October, 2012.

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

----Ss. 324, 392 & 394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Criminal Procedure Code (V of 1898), Ss.236 & 237---Attempt to commit qatl-e-amd, robbery, Haraabah---Appreciation of evidence---Benefit of doubt---Only two witnesses were examined by the prosecution regarding the robbery from the complainant side and injury received by prosecution witness---Prosecution had not effected recovery of the robbery amount from accused, nor crime weapon was recovered from him---No identification parade was held after arrest, though it was essential to prove the prosecution case---When neither the name of culprit nor any description or features had been disclosed in the alleged F.I.R., then it was essential for the prosecution to prove its case to put the arrested accused in identification parade---In the present case, the prosecution had not explained regarding the identification parade of accused before any Magistrate to identify through complainant and injured prosecution witness---Mere identification of accused before the Trial Court during trial, was not required for conviction of accused, without corroborative piece of evidence---Record revealed that the name of accused firstly appeared in the challan sheet without any source of information as to who disclosed the name of accused or what were the material available to the Investigating Officer to connect accused to the commission of offence---Trial Court acquitted accused persons from whom robbed property was recovered by giving them benefit of doubt and convicted the accused on the same set of evidence---Complainant and prosecution witness had only seen and identified accused during the recording of their evidence in the Trial Court---Such identification created doubt and defect in the prosecution case and such benefit would go to accused---Prosecution had failed to prove its case beyond any shadow of reasonable doubt---Trial Court had not considered the evidence produced by the prosecution minutely and without going into the spirit of law mentioned in S.237, Cr.P.C., only converted the offence under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 into sections punishable under Ss.392 and 394, P.P.C. without framing the charge, and without giving the opportunity to accused to defend himself, was quite against the canon of law and procedure---Accused had succeeded to make out a case for acquittal from the charge---By giving benefit of doubt to accused, impugned judgment was set aside, and it was ordered that accused be released.

2006 YLR 3113; Mursal Qazmi alias Qamar Shah and others v. The State 2009 SCMR 1410; Muhammad Asghar alias Nannah and another v. State 2010 SCMR 1706; 2012 SCMR 440 and PLD 1998 Kar. 539 ref.

Mursal Qazmi alias Qamar Shah and others v. The State 2009 SCMR 1410; Muhammad Asghar alias Nannah and an-other v. State 2010 SCMR 1706 and Gulshan and another v. State 2006 YLR 3223 rel.

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

----Ss. 236 & 237---Doubt with regard to offence and conversion of offence---Scope and application of Ss.236 & 237, Cr.P.C.---Where at the time of framing of the charge evidence produced by prosecution revealed as to what offence was prima facie made out, S.237, Cr.P.C. would not apply; and application thereof was limited to those cases only which were within the ambit of S.236, Cr.P.C.---Section 237, Cr.P.C. was an exception to the general rule, that no person could be convicted for an offence for which he was not charged---Section 237, Cr.P.C. must be construed strictly and be applied in those cases only where neither the offences allegedly committed or cognate, or it was doubtful as to which offence was made out of the act or acts allegedly committed by accused.

Mahazullah v. State 2000 PCr.LJ 534 rel.

(c) Criminal trial---

----Cognizance of offences---Trial Court had to take the cognizance of the offences and not the offenders; and if the record indicated that there were some other offenders as well, even then Trial Court should have initiated proceedings against them.

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

----S.237---Penal Code (XLV of 1860), Ss.324, 392 & 394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Conversion of offence---Trial Court had not considered the evidence produced by the prosecution minutely and without going into the spirit of law mentioned in S.237, Cr.P.C., only converted the offence under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 into sections punishable under Ss.392 and 394, P.P.C. without framing the charge, and without giving the opportunity to accused to defend himself, was quite against the canon of law and procedure.

Syed Madad Ali Shah for Appellant.

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

Date of hearing: 1st October, 2012.

2013 Y L R 1322

[Sindh]

Before Habib-ur-Rehman Shaikh, J

HASSAN ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application Nos.S-55 and S-85 of 2012, decided on 28th August, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.334, 337-F(i), 337-H(2), 147, 148 & 149---Interim pre-arrest bail, confirmation of---F.I.R. had been lodged with unexplained delay of 17 days---Accused had also lodged F.I.R. against the complainant party, in which two real brothers and one relative of accused had lost their lives---Complainant had himself admitted in the F.I.R. that accused had lodged the F.I.R. against the complainant party, when he appeared at Police Station and lodged the F.I.R., he did not lodge the F.I.R. on the very day of the occurrence, and had also not disclosed about the murder of three persons, even though he had knowledge which showed that complainant had lodged the F.I.R. with mala fide intention and ulterior motive in order to involve the accused, who was also complainant of F.I.R. against complainant party---Interim pre-arrest bail, already granted to accused, was confirmed, in circumstances---Co-accused was also entitled to be enlarged on post-arrest bail and was allowed to be released on bail, in circumstances.

Muhammad Essa v. The State 2012 SCMR 646; Hamza Ali Hamza and others v. The State 2010 SCMR 1219; Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Izhar and another v. The State 2012 YLR 497 and Noor Ahmed alias Teeta v. The State 2011 YLR 1935 ref.

Syed Shahzad Ali Shah for Applicants.

Mushtaq Ahmed Abbasi, DDPP for the State.

Applicant Hassan Ali in Criminal Bail No.S-55 present in court.

2013 Y L R 1337

[Sindh]

Before Aftab Ahmed Gorar and Irfan Saadat Khan, JJ

RAHEEM DAD---Appellant

Versus

Mir HASSAN and 4 others---Respondents

Criminal Acquittal Appeal No.D-371 of 2011, decided on 30th January, 2013.

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

----Ss.302, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, rioting, common object---Appeal against acquittal---Appreciation of evidence---Presence of prosecution witness at the place of incident was highly doubtful---Complainant as well as other prosecution witnesses deposed in their evidence that accused persons fired upon the deceased, but the medical report had shown that deceased sustained only one firearm injury---Complainant party claimed to have identified accused persons on torch light, which was a weak type of evidence; and even said torch was not produced before the Investigating Officer---Police recovered one empty bullet from the place of incident, but same was also not produced by the Investigating Officer during the trial---In the present case there were many circumstances to create doubt in the prosecution case---Trial Court, in circumstances, had rightly passed impugned judgment which did not suffer from any legal infirmity---Appeal was dismissed.

Inayatullah Butt v. Muhammad Javaid and 2 others PLD 2003 SC 563 rel.

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

----S.417(2-A)---Appeal against acquittal---Principles---Appeal against acquittal had distinctive features from appeal against conviction; and approach to deal with appeal against conviction was distinguishable from the appeal against acquittal, because presumption of double innocence was attached in the appeal against acquittal---Order of acquittal could only be interfered when it was found on the face of it as capricious, perverse, arbitrary or foolish in nature, which did not appear in the present case---If single circumstances would create doubt in the prosecution case, its benefit must be extended to accused as a matter of right.

Ishrat Ali Lohar for Appellant.

Muhammad Iqbal Kalhoro Additional Prosecutor-General for the State.

Date of hearing: 30th January, 2013.

2013 Y L R 1342

[Sindh]

Before Aftab Ahmed Gorar, J

NADEEM ASIF---Applicant

Versus

The STATE---Respondent

Bail Application No.1104 of 2012, decided on 20th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention--Bail, refusal of---Accused, co-accused and deceased were travelling in the same car, when some unknown persons fired upon the deceased and killed him---Complainant alleged that accused and co-accused had killed the deceased---Accused was specifically named in the F.I.R.---Co-accused had confessed his guilt and stated that he had committed murder of deceased at the instigation of accused---Medical version supported the prosecution case---Car used in commission of offence had been produced by accused before the police---Sufficient evidence was available to connect accused with the commission of the offence---Bail application of accused was dismissed accordingly.

Muhammad Ali and another v. The State 1981 PCr.LJ 1210; Khan Muhammad v. The State 1983 PCr.LJ 2190; Ijaz Ahmed and another v. The State 1997 SCMR 1279; Rafique alias Rafique Ahmed v. The State PLD 2002 Kar. 317; Ali Muhammad v. The State 2005 YLR 3357; Muhammad Riaz v. State 1996 PCr.LJ 150; Anwar Zeb v. Muhammad Riaz and another 2009 PCr.LJ 1985 and Zareen Shah v. The State and others 2005 PCr.LJ 739 distinguished.

Intikhab Ahmed for Applicant.

Saleem Akhtar Addl: Prosecutor General for Respondent.

2013 Y L R 1349

[Sindh]

Before Syed Muhammad Farooq Shah, J

BUDHO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-375 of 2011, decided on 29th November, 2012.

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

----S. 13(d)---Possessing illicit weapon---Appreciation of evidence---Testimony of three Police Officials, examined by the prosecution depicted sufficient contradictions in their deposition---Trial Court had observed that evidence of Police Officials was as good as others until it was proved that there was mala fide on the part of Police to implicate or involve accused, but in support of its version, Trial Court did not place reliance on any case-law, nor any provision of law had been cited---Trial Court had observed in its judgment that accused had failed to bring on record any evidence so as to show that he was falsely implicated in the case on account of any enmity with the Police---Case of the prosecution was doubtful in nature---Evidence available on record in no way was sufficient to lead to a conclusion that accused could be convicted of the offence alleged against them---Trial Court was not justified by observing in the impugned judgment that the prosecution had succeeded to bring home the charge against accused beyond shadow of reasonable doubt---Findings of the Trial Court were not based on valid evidence---Occurrence was a day time incident in thickly populated area, but no reasonable inhabitant of the locality had come forward as witness of the occurrence---Statement of prosecution witnesses regarding the witnessing of the occurrence was not confidence-inspiring and could not be relied upon without independent corroboration---Police was having advance information about presence of accused at the pointed place, but they did not take independent person of the locality to witness the search and recovery---Prosecution had failed to prove that recovery was effected honestly, fairly so as to exclude the possibility of false implication; and fabrication without joining disinterested and respectable person, the alleged recovery was highly doubtful---Material discrepancies and lacunae were found in prosecution evidence, on the basis whereof no conviction could be recorded---Prosecution had failed to prove the case against accused beyond shadow of reasonable doubt---Sentence and conviction awarded to accused by the Trial Court, were set aside---Accused was acquitted from the charge of the case and was directed to be released, in circumstances.

Abdul Wahid v. The State 2012 YLR 200 and Ghulam Khan v. The State 2001 PCr.LJ 435 rel.

PLD 1986 FSC 242 and 2008 SCMR 1254 distinguished.

(b) Criminal trial---

----Evidence---Proof---Onus---Duty of court---Court had to juxtapose both the conflicting evidence in order to arrive at a conclusion as to which one of them to be chosen for reliance as true---Onus always lay on the prosecution to prove its case and the prosecution had to succeed upon the strength of its own case, and not the weakness of defence---Accused had only to show a dent having created in the case of the prosecution; and that he was entitled to benefit of even single doubt depicted in the prosecution evidence ; and he had to show that it was a case suffering from more than one doubt.

(c) Criminal trial---

----Benefit of doubt---For the purpose of giving benefit of doubt to an accused, more than one infirmity was not required, but a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-maker---Merely because the burden was on accused to prove his innocence, it would not absolve the prosecution from its duty to prove its case against accused beyond any shadow of doubt, and that duty would not change or vary---Finding of guilt against an accused could not be based merely on the high probabilities that could be inferred from evidence in a given case---Mere conjectures and probabilities, could not take place of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Mrs. Razia Ali Zaman Khan for Appellant.

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

Date of hearing: 29th November, 2012.

2013 Y L R 1364

[Sindh]

Before Abdul Rasool Memon, J

ABDUL SATTAR and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.132, 140, 141 and 149 of 2011, decided on 24th December, 2012.

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

----S.154---First Information Report---Delay in lodging F.I.R., alone was not considered sufficient ipso facto to disbelieve the prosecution case---Such delay on its face value, would require close scrutiny of the incriminating evidence available on record to avoid false involvement of accused.

Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.

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

----Ss. 392, 395, 412 & 34---Robbery, dacoity, dishonestly receiving property stolen in the commission of dacoity and common intention---Appreciation of evidence---Consistency in evidence of the complainant and prosecution witnesses, had indicated availability of the witnesses at place of incident at the time of alleged occurrence---Both said witnesses had made their statements in clear terms giving detail of occurrence as eye-witnesses and identified accused persons in identification parade as culprits---No suggestion on the part of accused persons in cross-examination of witnesses was made to the effect that they were not available at the time of occurrence or they were procured to give testimony---Non-mentioning the names of witnesses in the F.I.R., would not affect the reliability of the witnesses because in a case of heinous crime, the complainant could omit name of any witness, particularly where there was a huge gathering on the spot, either before or after commission of the offence---Both the prosecution witnesses were subjected to lengthy cross-examination, but they remained consistent on all material particulars of the prosecution case---Incident was a daylight occurrence and accused remained with the said witnesses for forty minutes to complete their mission; and witnesses had close proximity to remember them so as to identify them later---Statement of the witnesses qua the identity of accused in the court inspired confidence, and the witnesses were consistent on all the material points---Nothing was available to suggest that witnesses deposed falsely due to enmity---Recovery of looted gold was made on pointation of accused persons, who led the Police party and produced the looted property from their houses---No allegation was levelled with supportive material that investigation was dishonest, mala fide and with ulterior motive on the part of Police, and that prosecution story was tailored---Procedural defects or irregularity and even illegalities in the course of investigation would not demolish the case of prosecution.

Makkhan and others v. Emperor AIR (32) 1945 Allahabad 81; Muhammad Hayat v. Sabir Sultan, Additional Sessions Judge and others 2004 PCr.LJ 397; Shah Jahan v. The State and another 2005 PCr.LJ 489; Muhammad Yasin and another v. Additional Sessions Judge, Okara and 2 others 2007 PCr.LJ 799; Mumtaz Ali and another v. The State 2000 PCr.LJ 367; Mubeen v. The State 2006 YLR 359; Syed Arshad Ali Shah Bukhari v. The State and others 2011 SCMR 1644; Shafi Muhammad v. The State PLD 1971 Kar. 721; Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227; Attaullah and others v. The State 2006 MLD 896; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; The State v. Ghulam Rasool 2007 SCMR 1944; Tahir Hussain v. The State 2010 YLR 140(DB); Iltaf Hussain v. The State 1996 SCMR 167; Muhammad Sajjad v. The State 2009 SCMR 1248; Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410; Nabeela Bibi v. The State 2005 PCr.LJ 1472; Sajjad Hussain and another v. State PLJ 2009 FSC 242; Noor Hussain v. The State 1996 PCr.LJ 181; Kandhla (Kandla) v. The State 1983 PCr.LJ 1869; Ejaz Ali v. The State 2008 PCr.LJ 1012; Muhammad Akram v. The State 2009 SCMR 230; Mumtaz Ahmad alias Mumtaz Ali v. The State 1974 PCr.LJ 137; Muhammad Yasin and 2 others v. The State PLD 2003 Lah. 425; Abdur Rehman Mubarak v. The State 2000 PCr.LJ 907; Muhammad Basharat v. The State 2003 SCMR 554; Muhammad Khan v. The State 1994 SCMR 1543; Muhammad Arif v. The State 1999 MLD 1321; Zardar v. The State 1991 SCMR 458; Muhammad Mushtaq v. The State PLD 2001 SC 107, Yousaf v. The State and another 2000 PCr.LJ 1386 and Abdul Razzak alias Zaka v. The State 2003 SCMR 1419 ref.

Muhammad Mushtaq v. The State PLD 2001 SC 107; Muhammad Basharat v. The State 2003 SCMR 554; Ghazanfar Ali alias Pappu v. The State 2012 SCMR 215 and Ashraf Khan Tareen v. The State 1995 PCr.LJ 1313 rel.

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

----Ss. 390, 391, 392 & 395---Robbery or dacoity---Appreciation of evidence---All three witnesses were unanimous that the number of culprits committing offence was four---Neither the case of dacoity falling within terms of S.391, P.P.C. was made out, nor the punishment provided by S.395, P.P.C. could be inflicted upon any accused---Conviction and sentence awarded to accused persons under S.395, P.P.C., were not warranted---Accused were liable to be punished with offence of robbery under S.392, P.P.C., in circumstances---Impugned judgment was modified by substituting the conviction under S.392, P.P.C. and High Court while taking lenient view awarded sentence of 7 years' R.I. with fine, and with benefit of S.382-B, Cr.P.C. in circumstances.

Rabnawaz Khattak and another v. The State 2011 PCr.LJ 636 rel.

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

----S.103---Application of S.103, Cr.P.C.---Scope---Provision of S.103, Cr.P.C. would not apply if recovery was made on Highway or the road side.

State v. Muhammad Amin 1999 SBLR 1367 rel.

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Search---Association of two respectable inhabitants of the locality was not required in the case of recovery, where accused himself led the Police to a particular place; and had got articles recovered in true spirit of Art.40 of Qanun-e-Shahadat, 1984.

Yousuf v. The State 2000 PCr.LJ 1346 rel.

(f) Criminal trial---

----Evidence---Police personnel are as good witnesses as any other persons---When their evidence did not suffer from any legal or factual infirmity, same could be accepted.

Muhammad Khan v. The State 1994 SCMR 1543 rel.

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

----Ss. 392, 395 & 411---Robbery, dacoity or dishonestly receiving stolen property---No case of dacoity or robbery had been made out against co-accused, but it had been proved against them that they were guilty beyond shadow of doubt of offence under S.411, P.P.C.---Conviction and sentence awarded to co-accused persons under S.395, P.P.C. were set aside and they were convicted and sentenced under S.411, P.P.C. to suffer R.I. for 3 years.

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

----S. 412---Dishonestly receiving property stolen in the commission of a dacoity---No case under S. 412, P.P.C. having been made out against accused, con-viction and sentence awarded to him not being sustainable on facts and law, were set aside and accused was released.

Syed Lal Hussain for Appellant (in Criminal Appeal No.132 of 2011).

Akhtar Shad for Appellant (in Criminal Appeal No.140, 141 and 149 of 2011).

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

Date of hearing: 7th November, 2012.

2013 Y L R 1382

[Sindh]

Before Aftab Ahmed Gorar, J

KHADIM HUSSAIN BHAYO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.346 and M.A. No.1861 of 2012, decided on 31st December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 397---Juvenile Justice System Ordinance (XXII of 2000), S. 2(b)---Dacoity, robbery or dacoity, with attempt to cause death or grievous hurt---Bail, grant of---Juvenile accused---Accused and co-accused persons were alleged to have committed dacoity at house of complainant and during the occurrence accused also allegedly fired a single shot at the injured witness---Prosecution alleged that accused fired a single shot which hit the injured witness and firing was not repeated, however mashirnama of place of wardat showed that 4 empties were recovered---Complainant alleged in the F.I.R. that blood started oozing out from the abdomen of injured witness, however as per mashirnama of wardat, no blood stained earth was recovered---Certificate issued by Special Medical Board showed that age of accused was 17 years, which meant that at time of commission of offence he was below the age of 17 years---Accused being a juvenile offender deserved concession of bail---Accused was allowed bail accordingly.

Ali Gohar alias Igloo v. The State 20012 YLR 873; Afsar Zamin v. The State PLD 2002 Kar. 18; Mehar alias Mehaar v. The State 2009 PCr.LJ 47; Sikander v. The State 2006 PCr.LJ 1648 and Zaher v. The State 2007 SCMR 1178 rel.

Muhammad Iqbal Mahar for Applicant.

Ali Raza Pathan, State counsel.

2013 Y L R 1387

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. SAMINA AFFAQ---Petitioner

Versus

MUHAMMAD JABBAR and another---Respondents

Constitution Petitions Nos.S-769 and 770 of 2011, decided on 17th December, 2012.

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

----Ss.15 & 19---Constitution of Pakistan, Art. 199---Constitutional petition---Eject-ment of tenants on ground of default in payment of rent and subletting---Ejectment petition was allowed ex parte against tenants---Contention of the tenants (petitioners) was that Rent Controller was not justified in not providing an opportunity to tenants to cross-examine the landlord---Validity---Tenants had made application for setting aside ex parte order only when the process of recording of evidence and cross-examination of the landlord by the Rent Controller was completed and the case was fixed for orders---Rent Controller had not blindly relied upon the words of the landlord but had cross-examined him and after considering the entire evidence, the Rent Controller had passed the ejectment order---No illegality therefore, existed in the impugned order of courts below---Constitutional petitions were dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Sindh Rented Premises Ordinance (XVII of 1979), Ss.15 & 19---Constitutional jurisdiction of High Court---Ejectment of tenant---Constitutional jurisdiction of High Court in such mattes was very much limited and confined only to ascertain whether the Appellate Court had not flouted provisions relating to the statute or failed to follow the law relating thereto.

Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 and 2010 SCMR 1025 rel.

Nasir Mehmood Mughal for Petitioner.

Syed Amir Ali Shah for Respondent No.1.

Date of hearing: 3rd December, 2012.

2013 Y L R 1392

[Sindh]

Before Naimatullah Phulpoto, J

MAZHAR ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-479 of 2012, decided on 11th December, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.392 & 394---Robbery, voluntarily causing hurt in committing robbery---Ad interim pre-arrest bail, confirmation of---Benefit of doubt---Two versions of prosecution case---Affidavits of exoneration in favour of accused---Mala fide alleged against police---Effect---Accused persons allegedly intercepted complainant party on a road and robbed them of their valuables---One of the accused also inflicted a pistol butt blow on a prosecution witness---Complainant and prosecution witnesses filed affidavits, wherein they exonerated accused persons from commission of alleged offence---Doubt in the prosecution case had been created by such affidavits---Persecution case had two versions, and it was yet to be determined at trial as to which version was correct---Mala fide had also been alleged against the police---Ad interim pre-arrest bail already granted to accused was con-firmed in circumstances.

2011 SCMR 1615 rel.

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

----Ss. 497 & 498---Bail---Benefit of doubt---Scope---Benefit of doubt should go to accused even at bail stage.

Ghulam Ali A. Samtio for Applicants.

Qazi Muhammad Bux, State counsel.

2013 Y L R 1394

[Sindh]

Before Salahuddin Panhwar, J

Mst. HINA and another---Petitioners

Versus

MUHAMMAD TARIQUE and 5 others---Respondents

Criminal Miscellaneous Application No.56 of 2012 and M.As. Nos. 15479, 15480 and 9655 of 2011, decided on 17th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.365-B, 363, 148 & 149---Kidnapping, abducting or inducing woman to compel for marriage etc., rioting, common object---Quashing of proceedings, application for---Accused had stated in the court that she had not been abducted by co-accused, but she being sui juris had contracted marriage with co-accused without any pressure or coercion and that she being legally wedded wife of co-accused was passing a happy matrimonial life with co-accused within the limits prescribed by Almighty Allah---F.I.R. in question was lodged against accused during pendency of application for quashing of proceedings---Further trial, in circumstances, would be an abuse of the process of law, and no proper purpose would be served because ingredients mentioned in F.I.R. had been falsified by accused by her statement---Prosecution would not be able to prove its charge---Proceedings, were quashed, in circumstances.

Zulifqar Ali Sangi for Applicants with Applicants in person.

Mohan Lal DDPP for Respondents.

2013 Y L R 1405

[Sindh]

Before Sadiq Hussain Bhatti, J

ABDUL AZIZ MYSOREWALA---Petitioner

Versus

MANVADAR SADARGH MEMON JAMAT, through President and 2 others---Respondents

Constitution Petition No.275 of 2010, decided on 18th March, 2013.

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

----Ss.18 & 15(2)(ii)---Change in ownership---Payment of rent---Default---New owner was required to send an intimation of transfer of the premises to tenant in writing by registered post and tenant was provided a period of 30 days time after receipt of the notice, to pay the rent to avoid the consequences of default in payment of rent.

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

----S.18---Change in ownership---Object of S.18 of Sindh Rented Premises Ordinance, 1979, detailed.

1992 SCMR 2400 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---High Court in its constitutional jurisdiction would certainly interfere in the case of concurrent findings if such findings were found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess of abuse of jurisdiction and arbitrary exercise of powers---In appropriate cases of special jurisdiction, where District Court was final Appellate Court, if it had reversed the finding of the trial Court on the grounds not supported by material on record, the High Court could interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority.

Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.

Ilyas Khan Tanoli for Petitioner.

Muhammad Ilyas Awan for Respondent.

Date of hearing: 25th February, 2013.

2013 Y L R 1416

[Sindh]

Before Habib-ur-Rehman Shaikh, J

RAMZAN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-343 M.As. Nos. 1823, 2023 and 1824 of 2012, decided on 23rd October, 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 of ineffective firing---Non-attribution of any injury upon deceased--- Effect--- Accused persons allegedly made ineffective firing during the occurrence, while one co-accused fired at the deceased and killed him---Specific role had been assigned to the co-accused, who directly fired upon the deceased---Names of accused persons appeared in the F.I.R. without any specific role and they were only alleged to have made ineffective firing---Case against accused persons required further inquiry---Accused persons were released on bail accordingly.

Muhammad Sadiq v. The State 1996 SCMR 1654; Muhammad v. The State 1998 SCMR 454 and Moula Dad v. The State 2000 PCr.LJ 1069 rel.

Muhammad Haroon v. The State 1994 SCMR 2161; Abdur Rehman v. Tanveer Hussain 1995 SCMR 1118 and Attaullah v. The State 1999 SCMR 1320 ref.

Ahsan Ahmed Qureshi for Applicants, along with Asif Ali Abdul Razak Soomro, holding brief for Safdar Ali Ghouri for Applicant No.2.

Ameer Ahmed Narejo for the State.

2013 Y L R 1440

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ZAFFAR BAIG---Petitioner

Versus

Mst. AFSHEEN and another---Respondents

Constitution Petition No.S-988 of 2012, decided on 7th December, 2012.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Recovery of dower amount---Appellate Court dismissing appeal on grounds of limitation---Judgment of Appellate Court was impugned on merits rather than on ground of limitation---Effect---Suit filed by wife (respondent) for recovery of dower amount was decreed by Trial Court---Appeal filed by husband (petitioner) against order of Trial Court was dismissed as being barred by time---Husband contended that he signed the Nikahnama in order to facilitate his wife in taking revenge from her ex-husband; that he was trapped by his wife in order to extort money from him, and that marriage was not consummated in a proper way, because soon after signing the Nikahnama, he left the country---Validity---Judgment of Appellate Court was based on the sole point of limitation and merits had not been discussed at all, therefore, it was incumbent upon the husband to attack the judgment of Appellate Court on the ground of limitation---Husband made elaborate assertions on merits and took pleas to challenge judgment of Trial Court but had not said a single word regarding judgment of Appellate Court having been dismissed on ground of limitation---Judgment of Appellate Court stood unchallenged in such circumstances and held field, therefore, findings given therein had to be concurred with---Constitutional petition was dismissed in circumstances.

Ms. Nazia Perveen for Petitioner.

Irfan Ali for Respondent No.1.

Date of hearing: 4th December, 2012.

2013 Y L R 1444

[Sindh]

Before Naimatullah Phulpoto, J

ATTA MUHAMMAD---Applicant

Versus

AYAZ and another---Respondents

Criminal Miscellaneous Application No.S-177 of 2011, decided on 4th December, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 148, 149, 337-H(2) & 506---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, hurt by rash or negligent act, criminal intimidation---Application for cancellation of bail, dismissal of---Deceased was allegedly killed by a hatchet blow caused by the co-accused, while accused allegedly made aerial firing during the occurrence---Trial Court allowed bail to accused on the basis that accused was only present at the place of occurrence and no overt act had been assigned to him---Validity---Trial Court had rightly granted bail to accused on the ground that no active role was assigned to him in the commission of the offence---Only allegation against accused was that he shared common intention of the co-accused and made aerial firing during the occurrence---Participation of accused in the crime was to be determined during the trial---Application of cancellation of bail was dismissed in circumstances.

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

----S. 497(5)---Cancellation of bail---Scope---Strong and cogent reasons were required for cancellation of bail granted by court---Bail granted to accused could be cancelled where order for grant of bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice; or where accused misused his liberty by indulging in similar criminal activity; or where accused attempted to tamper with prosecution evidence, and/or where accused went underground or became unavailable to the investigation agency.

Faiz Muhammad Larik for Applicant.

Naimatullah Bhurgri for the State.

Shahbazz Ali Brohi for Respondent No.1.

Date of hearing: 4th December, 2012.

2013 Y L R 1450

[Sindh]

Before Naimatullah Phulpoto, J

ABDUL KHALIQUE and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.S-449 and S-460 of 2012, decided on 4th December, 2012.

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

----Ss. 497(2) & 498-A---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 148, 149 & 114---Attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Bail, grant/confirmation of---Further inquiry---Delay in lodging F.I.R.---Contradiction between medical and ocular evidence---Prior dispute between parties---Probability of false implication---Effect---Accused and co-accused persons were alleged to have caused hatchet and lathi blows to the injured witness---Record reflected that there was a dispute over land between the parties---Inordinate delay of about 31 hours in lodging of FIR had not been plausibly explained by the prosecution---Prosecution alleged that accused and co-accused persons caused injuries with hatchets and lathies but as per medical report of injured witness, all injuries sustained by him were caused by a hard and blunt object, therefore, the medical evidence was in contradiction to ocular evidence---No injury had been specifically attributed to any of the accused---False implication of accused and co-accused persons could not be ruled out---Case was one of further inquiry---Accused was allowed bail in circumstances, while interim pre-arrest bail already granted to co-accused persons was confirmed.

Abdullah v. The State 2001 MLD 1554; Aziz and 2 others v. The State 2007 PCr.LJ 299 and Hamid v. The State 2010 PCr.LJ 1700 rel.

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

---S.497---Bail---Benefit of doubt---Scope---Benefit of doubt could be extended to accused at bail stage.

Shahbaz Ali M. Brohi for Applicants.

Ghulam Mehdi M. Sangi for the Complainant.

Abdul Rasheed Soomro, State Counsel.

Date of hearing: 4th December, 2012.

2013 Y L R 1481

[Sindh]

Before Farooq Ali Channa, J

AETBAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-687 and M.A. No.3546 of 2012, heard on 18th December, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 147, 148, 149 & 114---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Bail, grant of---Further inquiry---Non-participation in the offence---Mere presence at scene of occurrence---Implication of entire male family members of accused---Effect---Accused was alleged to be present at the place of occurrence, while the co-accused allegedly fired at the deceased and also caused injuries to the injured person---Allegation of causing death of deceased by fire shots was attributed to a co-accused, while another co-accused was alleged to have injured the injured person---Sole allegation against accused was of mere presence at the scene of occurrence without participation in the offence---F.I.R. revealed that entire male members of accused's family had been involved in the present case---Question of common intention of accused was a question of further inquiry---Accused was granted bail in circumstances.

Dilmurad v. The State 2010 SCMR 1178 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S.34---Bail---Scope---Offence committed by several persons in furtherance of common intention---For purposes of bail question of common intention (of accused) was normally a question of further inquiry.

Dilmurad v. The State 2010 SCMR 1178 rel.

Zulfiqar Ali Sangi for Applicant.

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

Date of hearing: 18th December, 2012.

2013 Y L R 1502

[Sindh]

Before Naimatullah Phulpoto, J

ALI AHMED KHAKHRANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.472 of 2012, decided on 4th December, 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---Recovery of large quantity of narcotic---Foisting of narcotic upon accused not probable---Effect---During patrolling duty, police conducted personal search of accused and allegedly recovered 3000 grams of charas from his possession---Apparently such huge quantity of charas could not be foisted upon the accused---Although private persons were not associated to act as mashirs, but such aspect of the case required deeper appreciation of evidence, which was not possible at bail stage---Report of Chemical Examiner was in positive---Offence alleged was punishable with death or life imprisonment---Bail application of accused was dismissed in circumstances.

Athar Abbas Solangi for Applicant.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 4th December, 2012.

2013 Y L R 1518

[Sindh]

Before Muhammad Shafi Siddique and Syed Muhammad Farooq Shah, JJ

BAQI JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-39 of 2012, decided on 19th March, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Out of 100 Kgs. of charas, allegedly recovered, 5 Kgs. was sent to chemical analyser, rest 95 Kgs. was sealed separately, but prosecution witnesses did not make identification of said remaining sealed case property; it could not, in circumstances be confirmed that property produced was the same one, which was alleged to have been recovered from the possession of accused---Nothing was on the record to show as to whom the vehicle/jeep in question from which charas was recovered belonged---Narcotics allegedly recovered from the possession of accused, was sent to Forensic Science Laboratory after prolonged delay without any reason and such delay remained without any plausible explanation---Prosecution did not adduce any evidence to prove that accused had any knowledge of the contraband 'charas' lying in the vehicle---Prosecution did not collect any evidence to show as to who had kept such huge quantity of charas in the Jeep---In absence of conscious possession of accused over the contraband of accused, it could not be the basis of conviction of accused---Trial Court in the impugned judgment had brushed aside the defence evidence---Such approach was not only erroneous, but was not warranted by law---Prosecution duty bound to prove the case against accused beyond the shadow of reasonable doubt and that burden could not be shifted, but the prosecution had failed to do so---Prosecution did not adduce evidence with regard to the circumstances as to where the bulk charas and samples were kept after recovery of the same from accused---Withholding evidence by the prosecution with regard to said infirmity, would raise presumption against truthfulness of prosecution case---Defence plea taken by accused, stated on oath and evidence of defence witnesses had neither been discussed nor considered by the Trial Court---Prosecution having failed to bring home the guilt against accused beyond the shadow of reasonable doubt, impugned judgment, was set aside, accused was acquitted from the charge, and was directed to be released, in circumstances.

Jameel Shah v. The State 1997 SCMR 1494; Amjad Ali v. The State 2012 SCMR 577; Muhammad Aslam v. State 2011 SCMR 820; Shakeel v. The State 2005 YLR 2448; Mst. Sultan Zari v. The State 1986 PCr.LJ 1723; Abdul Rehman v. The State 2011 SCMR 965 and Khawar and another v. The State 2003 PCr.LJ 811 ref.

(b) Criminal trial---

----Appreciation of evidence---Defence evidence had to be put in juxta-position with the prosecution evidence; and if the same would inspire confidence, benefit had to be given to accused who was always considered innocent till prove guilty.

Abdul Baqi Jan Kakar for Appellant.

Riaz Hussain Khoso for Respondent.

Date of hearing: 5th March, 2013.

2013 Y L R 1527

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.348 of 2010, decided on 20th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Conversion of conviction under S. 302, P.P.C. into S. 302(c), P.P.C.---Mitigating circumstances---Matter involving family members---Old age of accused---Accused allegedly quarrelled with his wife and inflicted hatchet blows upon her, and during the occurrence one of his blows hit his daughter(deceased), who died as result thereof---Trial Court convicted accused under Ss. 302 and 324, P.P.C and sentenced him to life imprisonment---Accused admitted the incident but contended that he had quarrelled with his wife, and during the occurrence his deceased-daughter intervened, and when he pushed her back, she collided with a wall and died; that it was not a pre-planned or intentional murder, therefore, his conviction under S. 302, P.P.C. was not warranted and liable to be set-aside---Validity---Wife and a daughter of the accused appeared as prosecution witnesses and implicated the accused for causing murder of his deceased-daughter and for inflicting hatchet blows upon the wife---Both said witnesses were cross-examined at length but defense counsel could not shake their evidence---Presence of said witnesses in the house at the time of the occurrence was free from doubt---Daughter of accused who appeared as prosecution witness could not be expected to implicate her father falsely in a heinous offence---Son of accused acted as mashir of place of occurrence, examination of dead body, inquest report etc. and he also supported the prosecution---Investigating officer also corroborated the evidence of complainant and other witnesses in each aspect of the case---Ocular testimony was corroborated by contents of F.I.R., recovery of crime weapon, medical evidence, motive and circumstantial evidence---Trial Court had come to the correct conclusion that prosecution succeeded in proving charge of qatl-e-amd of deceased-daughter and charge of intention of committing qatl-e-amd of injured-wife---Conviction of accused under S. 324, P.P.C. for causing injuries to his wife was maintained, however his conviction under S. 302, P.P.C. for causing death of his daughter was converted into 302(c), P.P.C.---Due to mitigating circumstances as the matter related to a family and keeping in view old age of accused i.e. 67 years, his sentence was modified from life imprisonment to imprisonment for 12 years, and he was also directed to pay Rs. 100,000 as compensation to mother of deceased---Appeal was dismissed accordingly.

Mrs. Abida Praveen Channar for Pauper Appellant.

Shahid Ahmed Sheikh, A.P.-G. for Respondent.

Dates of hearing: 12th, 15th February, 8th and 20th March, 2013.

2013 Y L R 1545

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J

AHMED KHAN---Petitioner

Versus

Mst. BILQEES BEGUM and 2 others---Respondents

C.P. No.D-3369 of 2010, decided on 8th November, 2012.

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

----O. XVII, R 3 & S. 12(2)---Adjournments---Closing of evidence---Ex parte decree---Application under S. 12(2), C.P.C. filed by the defendant for setting aside ex parte decree---Evidence of the plaintiff was closed after he sought successive adjournments and failed to lead evidence---Contention of the plaintiff was that application under S. 12(2), C.P.C. should be decided on merits and he should not be knocked out on technical grounds---Validity----Plaintiff was vigilant while the suit remained uncontested by the defendant however after filing of the application under S. 12(2), C.P.C., plaintiff failed to appear and proceed with the case, particularly with the application under S. 12(2), C.P.C. and he had frequently moved urgent applications including applications for the transfer of the case---Record revealed that the plaintiff had not left a single opportunity to seek an adjournment----Conduct of the plaintiff revealed through dairy sheets, proved that there could not be second opinion about the fact that the plaintiff was avoiding proceedings before Trial Court, and Trial Court had granted enough adjournments to him---Dictates of justice demand that matters should be decided on merits rather than on technical knock outs, however, the plaintiff in the present case, with his frame of mind and conduct, deserved no indulgence and equity---Indulgence was to be granted to those who remained vigilant and not indolent---No illegality existed in the impugned order---Revision was dismissed, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact---Concurrent findings of fact could only be challenged if there was any point of jurisdiction or if the impugned order was wholly void or coram non judice.

Nazir Ahmed for Petitioners.

Moiz Ahmed for Respondent No.1.

Adnan Karim Assistant A.G. for Respondents Nos. 2 and 3.

Date of hearing: 8th November, 2012.

2013 Y L R 1580

[Sindh]

Before Irfan Saadat Khan, J

ALLAH DITTO---Applicant

Versus

MUHAMMAD ISHAQ and another---Respondents

Criminal Revision No.S-64 of 2011, decided on 22nd March, 2013.

Illegal Dispossession Act (XI of 2005)---

----Ss.3, 4 & 5---Illegal dispossession---Proof---Petitioner filed complaint alleging his illegal dispossession and after seeking report from police, Trial Court dismissed the complaint---Validity---Previous owner of suit land had already sold the land to petitioner in year, 2009---Previous owner also entered into lease agreement with respondent in year, 2010, in which one survey number of land purchased by petitioner was not part of that lease---Occupation of land bearing survey number purchased by petitioner, by respondent was illegal which he had to vacate as the same belonged to petitioner---Trial Court simply relied upon statements recorded by police without ascertaining the fact of ownership of land in question, therefore, order passed by Trial Court was set aside---High Court directed respondent to vacate the land immediately, as he was occupying the same illegally---Revision was allowed in circumstances.

Zafar Iqbal Seenhro for Applicant.

Syed Tariq Ahmed Shah for Respondent No.1.

Muhammad Iqbal Kalhoro, Additional Prosecutor General for the State.

Date of hearing: 18th March, 2013.

2013 Y L R 1592

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

KAMRAN and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.23 and Criminal Reference No.8 of 2010, decided on 21st February, 2013.

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

----S.22---Identification parade---Scope---Holding of identification parade is not mandatory and it is merely a corroborative piece of evidence.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd and terrorism--- Sole eye-witness--- Capital punishment---Identification in court---Delay in identification parade---Effect---Trial Court convicted both the accused for Qatl-e-amd and sentenced them to death---Validity---Eye-witness had identified both accused in Trial Court, therefore, delay in identification parade would not be fatal to prosecution case---Ocular evidence was fully corroborated by medical evidence, recoveries and positive Ballistic Expert report and the same were sufficient to establish case of prosecution---Trial Court could award death penalty to accused on the basis of evidence of sole eye-witness---If evidence of sole eye-witness was natural, trustworthy and corroborated by medical evidence, it was sufficient to record conviction in the cases of capital punishment---Law does not require plurality of witnesses as evidence has to be weighed and not counted---Prosecution succeeded to prove its case against accused and Trial Court had rightly appreciated evidence---High Court declined to interfere in death sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Muhammad Azam v. State SBLR 2004 Balochistan 21; Ghazanfar Ali alias Pappu and others v. The State 2012 SCMR 215; Muhammad Latif v. The State PLD 2008 SC 503 rel.

Abdul Razzak for Appellants.

Khadim Hussain Khoonharo, Deputy Prosecutor-General for Respondent.

Date of hearing: 23rd January, 2013.

2013 Y L R 1609

[Sindh]

Before Salahuddin Panhwar, J

ABID HUSSAIN---Appellant

Versus

NAWAB and 7 others---Respondents

Criminal Acquittal Appeal No.S-37 of 2012, decided on 19th February, 2013.

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

----S. 417(2-A)--- Appeal against acquittal---Appellant failed to refer any piece of evidence, which could persuade to hold that the inference drawn by Trial Court was against the principles of appreciation of evidence---Impugned judgment of the Trial Court, while acquitting the accused could not be said to be perverse and the reasons thereof were not fanciful, capricious, speculative and artificial---Appeal against acquittal was dismissed.

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

----S. 417(2-A)--- Appeal against acquittal---Plea was that Trial Court had not examined the author of the F.I.R. and Investigating Officer---Validity---Evidence of author of the F.I.R. and the Investigating Officer, if recorded would not strengthen the case of the prosecution, therefore on this ground, remand of case will not serve any purpose---Appeal was dismissed.

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

----S.417(2-A)---Appeal against acquittal---When an accused is acquitted from the charge by a court of competent jurisdiction, double presumption of innocence will remain attached with that judgment, therefore, such judgment cannot be disturbed unless it is proved that same is arbitrary, shocking, capricious, fanciful and against the settled parameters of criminal administration of justice.

Mushtaque Ahmed Kolachi for Appellant.

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

Date of hearing: 19th February, 2013.

2013 Y L R 1615

[Sindh]

Before Abdul Rasool Memon, J

Mst. SHAMIM ARA and another---Appellants

Versus

DISTRICT COORDINATOR through Officers and 4 others---Respondents

IInd Appeal No.5 of 2011, decided on 14th March, 2013.

Civil Procedure Code (V of 1908)---

----O.XVII, R.2 & 3--- Closure of evidence---Suit was filed in the year 2006 and issues were framed on 25-1-2007 thereafter the matter was being adjourned on each and every date for evidence of the plaintiffs---Costs were also imposed upon the plaintiffs with the direction to produce the evidence---Plaintiffs did not comply with said direction and warnings---Court was compelled to reject the application for adjournment---Counsel for the plaintiff was inclined to write letter to the appellant to withdraw his power---Prima facie, plaintiffs had lost interest even by not remaining in touch with the counsel which showed negligence and laxity---Law favoured the vigilant and not indolent---No explanation was brought on record as to why plaintiffs were not in contact with the counsel or not attending the court---Rules and regulations were framed for compliance and not for abrogation---No plausible or good explanation was brought on record to suggest that non-appearance of the plaintiffs or their witnesses was beyond their control or was bona fide---Court discussed the material available on record issue-wise---Suit was rightly dismissed under O.XVII, R.3 of C.P.C.

Fateh Sher v. Muhammad Zubair 2003 SCMR 797 rel.

Mumtaz Khan for Appellants.

Mrs. Kausar Anwar Siddiqui for Respondent No. 5.

Date of hearing: 5th March, 2013.

2013 Y L R 1619

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

MUMTAZ ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.225 and 226 of 2003, decided on 23rd January, 2013.

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

----S. 302(b) & 365-A---Qatl-e-amd, kidnapping for ransom---Appreciation of evidence---No Mashirnama of recovery was prepared at the place of incident, or at Police Station---Accused were empty-handed at the time they were arrested, and no recovery of any weapon was effected from them---During the alleged encounter between the Police and dacoits, no one received injuries; and no identification parade was held in the case---During the trial, both abductees did not identify accused persons---Glaring contradiction in respect of arrest or recovery of accused had created serious doubt in the prosecution case---None of the abductees in their deposition had deposed against accused persons---One of the abductees, had stated that abductees were chained by accused, but according to the statement of prosecution witness, when the abductees were recovered, they were not chained---Prosecution could not be said to have been successful in proving its case beyond reasonable doubt---Many circumstances were found which had created doubt in the prosecution case---Accused could not be deprived of benefit of doubt---Prosecution having not been able to prove its case beyond reasonable doubt against accused persons, conviction and sentence awarded to accused persons, were unwarranted---Impugned judgment of the Trial Court was set aside accused were acquitted and released, in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

(b) Criminal trial---

----Appreciation of evidence---Rule of consistency, requirements of---Rule of consistency demanded that if an accused had been exonerated from the charge on the basis of certain evidence; and had been extended benefit of material discrepancies/ contradictions in the evidence, other accused charged with similar allegations, was also entitled to the same concession.

Umar Farooque v. The State 2006 SCMR 1605 rel.

Muhammad Yousuf Leghari for Appellant.

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

Dates of hearing: 22nd and 23rd January, 2013.

2013 Y L R 1629

[Sindh]

Before Farooq Ali Channa, J

NAZEER MOOSA---Appellant

Versus

MUHAMMAD IQBAL and another---Respondents

Second Civil Appeals Nos.25 and 26 of 2010, decided on 19th February, 2013.

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

----O. XIV, R.1---Framing of issues---Issue was framed but not decided properly---Impugned judgments and decrees passed in suits and appeals were set aside and cases were remanded for decision afresh after framing an additional issue.

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

----O. XIV, R.5 & S.100---Additional issue, framing of---When there is legal question regarding status, authority and competency of a person to execute the sale agreement on behalf of principal owner of properties and that has not been discussed and no issue was framed, then appeal falls in purview of ingredients/grounds of S.100 of C.P.C.---Additional issue was framed by the High Court in second appeal and cases were remanded.

Shahab Sarki for Appellant.

Asif Ali Pirzada for Respondent.

Date of hearing: 13th February, 2013.

2013 Y L R 1635

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

SAFDAR ABBAS---Appellant

Versus

MOUR alias GULBAHAR and 6 others---Respondents

Criminal Acquittal Appeal No.1 of 2012, decided on 21st February, 2013.

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

----S.417(2-A)---Appeal against acquittal---Scope---When an accused was acquitted from the charge by a court of competent jurisdiction, then double presumption of innocence would remain attached with that judgment---Such judgment, could not be disturbed, unless it was proved that same was arbitrary, shocking, capricious, fanciful and against the settled parameters of criminal administration of justice.

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

----Ss. 148, 149 & 352---Criminal Procedure Code (V of 1898), S.417(2-A)---Rioting, armed with deadly weapons, common object and assault or criminal force---Appeal against acquittal---Principles---No evidence was referred which could persuade to hold that the inference drawn by Trial Court was against the principles of appreciation of evidence---Impugned judgment of the Trial Court, while acquitting accused persons could not be said to be perverse; and the reasons thereof were not fanciful, capricious, speculative and artificial---In absence of holding the order of acquittal as such, it could not be interfered with---Trial Court had dilated upon all the contentions, as agitated by counsel in the judgment, in question---Reasons and contradictions pointed out by the Trial Court in the impugned judgment, were in line of evidence recorded during the trial---Acquittal of accused person was therefore in accordance with law---Appeal was dismissed, in circumstances.

Mushraf Ali Memon for Appellant.

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

Date of hearing: 21st February, 2013.

2013 Y L R 1641

[Sindh]

Before Naimatullah Phulpoto and Farooq Ali Channa, JJ

ISHFAQUE AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-69 of 2006, decided on 14th November, 2012.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Delay in sending samples for examination---Possibility of tampering with case property---Non-association of private witnesses---Roznamcha entries not produced--- Effect--- Police allegedly apprehended accused while on patrol duty and found 200 grams of charas in his possession---Trial Court convicted and sentenced accused under S. 9(b) of Control of Narcotic Substances Act, 1997---Validity---Allegedly recovered charas was sent to the Chemical Examiner with a delay of about 9 days for which no explanation was given---Record did not show as to who had possession of the charas during such intervening period---Tampering with case property could not be overlooked in such circumstances---Accused was arrested from a thickly populated area surrounded by shops and hotels, but no private person was associated as mashir---Accused had taken a specific plea that excise officials had enmity with his father, therefore, it would have been better for prosecution to have examined independent persons of the locality---Original departure entry from police record had not been produced---Prosecution failed to establish its case against accused beyond any shadow of doubt---Appeal was allowed, impugned judgment of Trial Court was set aside and accused was acquitted of the charge.

Amjad Ali v. The State 2012 SCMR 577 and Muhammad Aslam v. The State 2011 SCMR 820 rel.

Asif Ali Abdul Razak Soomro for Appellant.

Ameer Narejo for the State.

Date of hearing: 14th November, 2012.

2013 Y L R 1650

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.267 of 2009, decided on 25th February, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution witness, who according to her evidence, had seen accused for a moment, four and half years ago, had claimed that she had identified accused---Such identification after four and half years, could not be relied upon---No impeachable circumstances being available to believe chance witness, his evidence should be overlooked---Date of incident was doubtful---Prosecution had failed to bring on record other evidence to fill the lacuna of medical evidence---Recovery of blood-stained clothes of accused was effected about 18 days after incident---Investigating Officer had also not recorded the statement of owner of house/flat in question to recognize accused as his tenant---Evidence of Mashir of recovery, was also contradictory---Alleged recovery having lost all its confirmatory values same could not be relied upon---Investigating Officer, while conducting the investigation, had failed to discharge his duty honestly and properly---Investigating Officer, also failed to examine/interrogate the main character of prosecution story, who approached the complainant for hiring his flat---Prosecution, in circumstances had failed to make out a case of murder of deceased against accused without any shadow of reasonable doubt---Conviction and sentence of accused were set aside, he was acquitted and released extending him benefit of doubt.

Nazo alias Ali Nawaz v. The State 1977 SCMR 20; Naqibullah and another v. The State PLD 1978 SC 21; Rehmat alias Rehman alias Waryam alias Badshah v. The State PLD 1977 SC 515; Jafar Shah and others v. The State 1988 PCr.LJ 205 and Muhammad Yousuf v. The State 2003 YLR 2136 ref.

Anwar Ali Shaikh for Appellants.

Zahoor Shah, A.P.-G. for Respondent.

Date of hearing: 21st February, 2013.

2013 Y L R 1654

[Sindh]

Before Habib-ur-Rahman Shaikh, J

Ms. ZEENAT JAFFREY---Petitioner

Versus

VTH ADDITIONAL JUDGE, (EAST) and 2 others---Respondents

Constitution Petition No.S-726 of 2010, decided on 16th March, 2013.

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

----S.10---Payment of rent---Landlord and tenant, relationship of---Scope---Depositing of rent was an admission that the petitioner was residing in the capacity of tenant and denial of relationship as tenant and the landlady between the parties did not merit consideration.

Mrs. Kauser Anwar Siddiqui for Petitioner.

S. Asam-ul-Haq for Respondents.

Date of hearing: 12th March, 2013.

2013 Y L R 1659

[Sindh]

Before Farooq Ali Channa, J

MAIRAJUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.270 of 2010, decided on 27th February, 2013.

Penal Code (XLV of 1860)---

----S. 320---Qatl-e-Khata by rash or negligent driving---Appreciation of evidence---Complainant though had identified accused before the Trial Court, but he, in his statement under S.154, Cr.P.C., had stated nothing about the features and description of accused---Other prosecution witnesses had also identified the accused before the Trial Court---Complainant in his statement under S.154, Cr.P.C., or evidence before the Trial Court had not claimed that said witnesses were available at the place of incident, or reached there soon after the accident, though his statement under S.154, Cr.P.C. was recorded after a considerable time of accident---Accused was not identified at the spot nor named in the F.I.R., and was arrested after seventeen days of incident---Accused, in circumstances, had to be produced before the Judicial Magistrate for his identification parade---Failure to do so had made the investigation unfair---Evidence of prosecution witnesses, not inspiring confidence, could not be relied upon for recording the conviction of accused---Name of accused was disclosed to Investigating Officer by owner of vehicle in question, but the prosecution had not examined said witness, before the Trial Court, though his name was shown in the list of witnesses of challan sheet---Prosecution having failed to establish the charge of qatl-e-khata against accused without any shadow of doubt, conviction and sentence awarded to accused, was set aside, and he was acquitted from the charge against him.

Appellant present in person.

Abrar Ali Khichi, A.P.-G. for Respondent.

Dates of hearing: 16th January, 13th February and 27th February, 2013.

2013 Y L R 1666

[Sindh]

Before Aftab Ahmad Gorar, J

P.C. NOOR ALAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1081 of 2012, decided on 5th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Accused quarrelled with the deceased and allegedly hit him on his head with a sharp object, which resulted in deceased's death---Accused contended that during the quarrel deceased slipped, which caused the injury on his head; that Trial Court had framed charge under S. 316, P.P.C., but in absence of any weapon, the case did not come within the ambit of S. 316, P.P.C. and at most fell within S. 319, P.P.C.; that there was no dying declaration from deceased, and that no post mortem was conducted---Validity---Ocular evidence was yet to come on record---Mere framing of charge under S.316, P.P.C. was no ground for grant of bail---Without recording of some material evidence, accused was not entitled to concession of bail---Bail application was dismissed accordingly.

Jawaid Ahmed Chattari for Applicant.

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

2013 Y L R 1673

[Sindh]

Before Farooq Ali Channa, J

ABDUL MAJID---Petitioner

Versus

MASHKOOR AHMED and 2 others---Respondents

Constitutional Petition No.S-591 of 2012, decided on 7th May, 2013.

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

---S.15---Constitution of Pakistan, Art.199--Constitutional petition--- Ejectment proceedings---Ejectment petition filed by the son of deceased landlady owner of the property---Property was not mutated in the name of son of landlady---Petitioner tenant denied the title of ownership of son of landlady---Effect---Property was still mutated in the name of deceased mother but the same shall not disentitle son from his claim to be the owner of property---Under Muslim law a presumptive heir on death of his predecessor acquires all rights in the property by operation of law and did not need any letter of administration for exercising the property rights in respect of property so inherited.

Miumtaz Ahmed v. Mst. Razia Zaheer 1993 CLC 1602 rel.

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

----S. 15---Constitution of Pakistan, Art.199--- Constitutional petition---Main-tainability--- Ejectment proceedings---Personal bona fide need of landlord---Concurrent findings of two courts below---Effect---Respondent landlord had sought eviction of petitioner on the ground of his personal bona fide need, which could only be decided on the basis of evidence---Both the parties had led the evidence in support of their contentions and both the courts below after considering and discussing the evidence thoroughly had come to concurrent findings that respondent had made out his case of requiring the premises in question for his personal bona fide use---High Court, in exercise of its constitutional jurisdiction, in such a case was not supposed to interfere in the concurrent findings on the controversial questions of facts based on evidence even if such findings were erroneous.

Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Muhammad Hafeez and another v. District Judge, Karachi (East) and another 2008 SCMR 398; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 S.C 45; Ittehad Chemical Ltd. v. VIIth Additional District and Sessions Judge and others 2010 CLC 599; Mumtaz Ahmed v. Mst. Razia Zaheer 1993 CLC 1602; Khursheedul Islam v. Mrs. Qamar Jahan 1989 CLC 1467; Habib-ur-Rehman and 7 others v. VIIth Additional District Judge, Hyderabad and 2 others PLD 2013 Sindh 25; Almas Khan v. Mrs. Bano through Attorney and 2 others PLD 2009 Kar. 268 and Wasiudin Siddiqui v. Muhammad Nawaz Mandokhel and 2 others 2013 CLC 88 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Concurrent findings of courts below---Judicial review by High Court---Scope---In cases of concurrent findings of courts, scope of judicial review of High Court under constitutional jurisdiction was limited to the extent of misreading or non-reading of evidence or if the findings were based upon no evidence, which may cause miscarriage of justice and it was not proper for High Court to disturb the findings of facts through reappraisal of evidence in its constitutional jurisdiction or exercise said jurisdiction as a substitute of revision or appeal---High Court was reluctant to undertake assessment of evidence and disturb concurrent findings of facts by the courts below unless misreading or non-reading of evidence was pointed out or the courts below had passed an order contrary to law.

(d) Islamic law---

----Inheritance---Under Muslim Law a presumptive heir on death of his prede-cessor acquired all rights in the property by operation of law and did not need any letter of administration under Succession Act, 1925 for exercising proprietary rights in respect of inherited property.

Mumtaz Ahmad v. Mst. Razia Zaheer 1993 CLC 1602 rel.

Syed Mehmood Alam Rizvi for Petitioner.

Farrukh Usman for Respondents.

Dates of hearing: 2nd, 25th April and 7th May, 2013.

2013 Y L R 1680

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD AFTAB and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.1 and 4 of 2006, decided on 22nd April, 2013.

Penal Code (XLV of 1860)---

----S.392/34---Robbery, common intention--Appreciation of evidence---Prosecution evidence was inspiring confidence and credible and prosecution witnesses were trustworthy---Police Officials being as good witnesses as any other, their evidence could not be discarded, unless those were biased or prejudiced for some extraneous reasons, which in the present case, Defence Counsel had failed to point out---Trial Court had discussed the prosecution evidence conscientiously, and had come to a correct conclusion holding accused guilty of committing the robbery---Impugned judgment not suffering from infirmity, did not require interference of High Court---Appeals were dismissed, in circumstances.

Khan Zaman Khan for Appellant (in Criminal Appeal No. 1 of 2006).

Abrar Ali Khichi, A.P.-G. for Respondent.

Dates of hearing: 25th March, 18th and 22nd April, 2013.

2013 Y L R 1687

[Sindh]

Before Farooq Ali Channa, J

UMEED---Applicant

Versus

The STATE---Respondent

Bail Application No.114 of 2013, decided on 18th February, 2013.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 11, 15 & 16---Penal Code (XLV of 1860), S. 34---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Possession of narcotics, operating premises or machinery for manufacture of narcotic drugs, etc., aiding, abetment or association in narcotic offences, common intention---Bail, grant of --Implication on basis of confessional statement of co-accused made before the police---Effect---Accused allegedly supplied chemicals to co-accused persons for preparation of heroin---Sole evidence against accused was the confessional statement of a co-accused made before the Investigating Officer--Such confessional statement of co-accused was not admissible under Arts. 38 and 39 of Qanun-e-Shahadat, 1984---Case was one of further inquiry into guilt of accused---Accused was admitted to bail accordingly.

Nazir Ahmed v. The State 2004 PCr.LJ 27 and Ejaz Ali v. The State 2009 MLD 773 rel.

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

----Arts. 38 & 39---Confessional statement of accused against co-accused made before the police---Admissibility---Such confessional statement was not admissible under Arts. 38 and 39 of Qanun-e-Shahadat, 1984.

Nazir Ahmed v. The State 2004 PCr.LJ 27 and Ejaz Ali v. The State 2009 MLD 773 rel.

Ilyas Khan and Muhammad Farooq for Applicant.

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

2013 Y L R 1694

[Sindh]

Before Salahuddin Panhwar, J

RAJIB ALI SIYAL---Petitioner

Versus

Mst. ZOYA ASAD and another---Respondents

Constitutional Petition No.S-344 of 2013, decided on 18th March, 2013.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 10(4), proviso---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage on basis of khula was decreed ex parte against husband---Contention of the husband was that he had been condemned unheard and that the Family Court was not competent to pass such an order without recording of evidence---Validity---Object of proviso to S. 10(4) of the West Pakistan Family Courts Act, 1964 was to avoid delay in the proceedings and to afford a right and remedy available to the wife for seeking khula expeditiously--Husband, in the present case, remained absent despite issuance of process through all nodes hence question of failure of pre-trial proceedings did not arise at all---Constitutional petition was dismissed, in circumstances.

PLD 2006 Kar. 308; 2006 CLC 1662; PLD 2010 Lah. 308 and PLD 2006 Kar. 272 distinguished.

Achar Khan Gabole for Petitioner.

Abdul Sattar Soomro and Shahabuddin Shaikh for Respondents.

Date of hearing: 18th March, 2013.

2013 Y L R 1701

[Sindh]

Before Naimatullah Phulpoto, J

KHATHOOR---Applicant

Versus

The STATE---Opponent

Criminal Bail Application No. S-379 of 2012, decided on 30th October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 337-A(iii), 34 & 504---Shajjah-i-hashimah, common intention, intentional insult with intent to provoke breach of peace---Bail, grant of---Further inquiry---Case of cross-version---Non-disclosure of injuries sustained by opposite side---Mala fide of complainant---Effect---Accused party and complainant party injured each other during the occurrence---Both sides lodged their respective F.I.Rs. for the incident---Accused was alleged to have caused stick blows to the complainant during. the occurrence---Present case was one of counter version and it was yet to be determined at trial as 'to which party was the aggressor---Alleged offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Pre-arrest bail had been granted to complainant side in the counter F. I. R.--Same and equal treatment had to be given to both sides under the law---Mala fide on part of complainant was apparent as he had suppressed material fact of injuries received by accused---Case was one of further inquiry---Bail was granted to accused in circumstances.

Abdul Hameed v. Zahid Hussain and others 2011 SCMR 606 rel.

Abdul Hameed v. Zahid Hussain and others 2011 SCMR 606 ref.

Rafiq Ahmed K. Abro for Applicant.

Qazi Muhammad Bux, State Counsel.

2013 Y L R 1732

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

AMEER BUX alias GHOUS BUX alias GHOUSO BROHI alias SUDHIR BROHI---Appellant

Versus

The STATE---Respondent

Criminal Special A.T. Appeal No.8 of 2008, decided on 20th February, 2013.

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

----Ss.6(2)(e) & 7(e)---Kidnapping for ransom--- Appreciation of evidence---Identification of accused in court---Effect---Accused was convicted and sentenced to imprisonment for life for kidnapping for ransom---Validity---Accused was identified in court, therefore, his presence at place of occurrence and kidnapping abductee for ransom could not be disputed---Evidence of payment of ransom through evidence of prosecution witness stood proved beyond any shadow of doubt---Despite lengthy cross-examination prosecution witness could not be shattered by defence---Trial Court had rightly believed prosecution evidence, which was confidence-inspiring---High Court declined to disagree with appreciation of evidence by Trial Court---Appeal was dismissed in circumstances.

The State v. Tariq Mehmood 1987 PCr.LJ 2173; Tariq Pervez v. The State 1995 SCMR 1345; Paramjeet Singh alias Pamma v. State of Uttarkhand AIR 2011 SC 200 distinguished.

Ghazanfar Ali alias Pappu and others v. The State 2012 SCMR 215 ref.

A.Q. Halepota for Appellant.

Khadim Hussain Khoonharo, Deputy Prosecutor-General Sindh for the State.

Dates of hearing: 16th January and 7th February of 2013.

2013 Y L R 1745

[Sindh]

Before Aftab Ahmad Gorar, J

MUHAMMAD SHARIF---Applicant

Versus

The STATE---Respondent

Bail Application No.1044 of 2012, decided on 14th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Bail, refusal of---Association of police witnesses during recovery proceedings---Scope---Two rocket missiles were allegedly recovered by police on the pointation of accused---No enmity was shown with police to establish that accused had been falsely implicated in the present case by foisting the recovered rocket missiles on him---Although independent witnesses were not associated during recovery proceedings, but in cases similar to present one, independent witnesses were not ready to act as witnesses, therefore, police witnesses were as good as independent witnesses---Bail application of accused was dismissed in circumstances.

Bismillah Khan v. The State 2004 MLD 224; Zain-ul-Abidin v. The State 2010 MLD 173; Shama Khel and 2 others v. Yousuf Ali Khan and another 2008 YLR 1888; Gul Hassan alias Nadeem v. The State 2004 YLR 1662 and Muhammad Arif Baig v. The State 2008 MLD 185 distinguished.

Syed Mukhtiar Hussain Sherazi for Applicant.

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

Date of hearing: 14th November, 2012.

2013 Y L R 1751

[Sindh]

Before Aftab Ahmed Gorar, J

ZAFAR HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1025 of 2012, decided on 15th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395 & 412---Dacoity, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment---Bail, grant of---Further inquiry---Belated identification parade---No recovery effected---Effect---Accused and co-accused persons allegedly committed dacoity at the house of complainant---Accused was not nominated in F.I.R.---Accused was initially arrested in another case and Investigating Officer submitted application before Magistrate requesting that accused was required in the present F.I.R.---Said application was allowed by Magistrate with a direction to conduct investigation in jail---Identification parade was held with a delay of 22 days---During investigation parade only one person identified the accused---Police did not produce any witness before the Magistrate---No recovery was effected from accused---Challan had already been submitted---Case was one of further inquiry---Accused was admitted to bail accordingly.

Tareen v. The State 2005 YLR 184 and Pervaiz and 3 others v. The State 2005 YLR 3236 ref.

Abdul Salam Memon for Applicant.

Sharfuddin Mangi for the State.

2013 Y L R 1758

[Sindh]

Before Aftab Ahmad Gorar, J

Mir FAIZ MUHAMMAD alias Mir FAIZULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-340 of 2012, decided on 1st March, 2013.

Penal Code (XLV of 1860)---

----Ss. 420, 466, 467, 468, 471 & 474---Criminal Procedure Code (V of 1898), Ss.222 & 342---Cheating, forgery, using as genuine a forged document, having possession of document knowing it to be forged and intending to use it as genuine---Appreciation of evidence---Charge framed by the Trial Court against accused, did not show the date, time and manner in which accused had allegedly cheated, prepared forged documents; and used the same as genuine; whereas it was mandatory that charge should contain all said material particulars in accordance with the provisions of S.222, Cr.P.C.---Statement of accused under S.342, Cr.P.C., was also not recorded by the Trial Court in accordance with law---Trial Court had merely reproduced the charge as "question No.1"---No other question with regard to the production of the fake and forged documents by accused, as well as inquiry report was produced in evidence---Trial Court did not go through the evidence brought on record, so as to put questions to accused on incriminating facts, enabling accused to explain the circumstances appearing in the evidence against him---Charge as well as statement of accused under S.342, Cr.P.C., in circumstances, had not been recorded by the Trial Court in accordance with law---Impugned judgment of the Trial Court was set aside and case was remanded to it, with direction to frame the charge strictly in accordance with S.222, Cr.P.C.; and to record statement of accused under S.342, Cr.P.C., putting all material brought in evidence by the prosecution, in order to afford him an opportunity to explain about the same, and thereafter pronounce judgment on merits in accordance with law.

Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68; Jehandad v. The State PLD 1994 Pesh. 279; Nazir Ahmed and others v. The State PLD 2005 Kar. 18; Jan Muhammad v. The State 2004 PCr.LJ 1412; Habib Ahmed v. The State 1996 PCr.LJ 1783; Bashir Ahmad and 2 others v. The State PLD 2008 Lah. 146; Muhammad Yasin and another v. Additional Sessions Judge, Okara and 2 others 2007 PCr.LJ 799 rel.

Hidayatullah for Appellant.

Shahzado Saleem Nahyoon Assistant Prosecutor-General for the State.

Date of hearing: 11th February, 2013.

2013 Y L R 1779

[Sindh]

Before Sadiq Hussain Bhatti, J

GHULAM RASOOL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-14 and M.As. Nos. 871, 1803 to 1805 of 2013, decided on 22nd April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.114, 302(b), 337-F(v), 337-L(2), 511 & 34---Presence of abettor when offence was committed, qatl-e-amd, causing Hashimah, causing hurt, attempt to commit offences, common intention---Suspension of sentence, application for---Tentative assessment of evidence on the basis of which finding of guilt was given was not debarred while considering the application for suspension of sentence under S.426, Cr.P.C.---Part assigned to applicant/accused, in the present case, was that he instigated co-accused, whereas role assigned to co-accused was that he inflicted the lathi blows on the arms and legs of prosecution witness---Punishments awarded to accused persons, were that accused was to suffer imprisonment for life for offence committed under S.114, P.P.C.---Section 114, P.P.C. was not an independent section, but was an enabling section, which was to be read with main offence---Same accused was sentenced to suffer R.I. for 12-1/2 years under S.302(b) and S.511, P.P.C.---Section 511, P.P.C. was not an independent section---Trial Court had not gone through the relevant provisions of law---Sentences awarded to accused persons, were suspended during pendency of their appeal---Accused were released on bail subject to their solvent surety.

Syed Madad Ali Shah for Appellants.

Abdul Rasheed Soomro for the Complainant.

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

2013 Y L R 1798

[Sindh]

Before Irfan Saadat Khan, J

Mrs. RUKHSANA AZIZ---Appellant

Versus

MUHAMMAD EMAD and another---Respondents

Criminal Acquittal Appeal No.124 of 2011, decided on 29th April, 2013.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.367(2) & 417---Dishonestly issuing a cheque---Appreciation of evidence---Allegations against the accused were that he issued three cheques out of which two were dishonoured by the Bank--Trial Court acquitted the accused---Validity---Section 489-F of P.P.C. showed that its intention was to discourage issuance of a cheque dishonestly for repayment of loan or to fulfil an obligation by making it a criminal offence---Burden to prove that the cheque was not issued dishonestly had been placed on the issuer and not on the complainant---Complainant was to show that a cheque was issued by the accused which was dishonoured on presentation---Complainant-appellant had made out a case that she was the landlady while the accused-respondent's wife was her tenant and for payment of the rent of the premises, accused-respondent gave her three cheques out of which two were dishonoured---Duty had been cast upon the issuer of a cheque to ensure that he had made arrangements with his banker for encashment of the cheque issued by him---In case it was shown that arrangements were made and the cheque was dishonoured due to some fault of the bank, in such case the issuer would not come under the ambit of S. 489-F, P.P.C. and in case no such arrangements were made by the issuer of the cheque with his bank or even the bank account was closed and a cheque was issued then there was no doubt that the cheque was issued with dishonest intention---Trial Court had failed to appreciate the evidence on record in accordance with the settled principles of law---Present was a clear case of misreading and non-reading of the evidence on record as the impugned judgment, on the very face of it, suffered from lacunae---Trial Court had not assigned any reasons for recording acquittal and even impugned judgment did not fulfill the requirements of S. 367(2), Cr.P.C.---Statement of the accused had been recorded in a mechanical manner and Trial Court had not applied its mind while passing the impugned judgment---Impugned judgment of acquittal was not sustainable in law and same was set aside and the matter was remanded to the Trial Court for re-writing the judgment---Appeal was allowed and accused was directed to surrender himself before the Trial Court.

Qazi Faisal Wajid v. Munir Ullah and others 2013 PCr.LJ 400; Ghulam Murtaza v. The State 2013 YLR 566 and Sardar Muhammad Aslam v. S.H.O./Incharge, Police Station Mirpur Abbottabad and 6 others 2013 YLR 108 rel.

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

----S.489-F---Dishonestly issuing cheque---Ingredients to constitute an offence of dishonestly issuing a cheque---Illustrated.

Every transaction where a cheque is dishonoured may not constitute an offence. For example if A gives a cheque of Rs.10,000 to B as assistance for the wedding of B's sister and the same was dishonoured by the Bank on presentation, it would not make out a case under section 489-F, P.P.C. as the same was neither for repayment of a loan nor for fulfilment of an obligation. The ingredients to constitute an offence under this provision are issuance of a cheque with dishonest intent, the cheque should be towards repayment of a loan or fulfilment of an obligation and lastly that the cheque in question is dishonored. Muhammad Aslam, if friendship, business or for that matter close family relations were cited by the complainant for giving such a huge amount to the accused/petitioner while lodging the complaint against him then the complainant would succeed as in such cases usually written agreements are not drawn out before advancing the loan, etc.

Another important factor to be kept in mind is the last part of section 489-F, P.P.C. wherein a duty has been cast upon the issuer of a cheque to ensure that he has made arrangements with his banker for encashment of the cheque issued by him. In case it is shown that such arrangements were made and the cheque was dishonoured due to some fault of the bank, in such case the issuer would not come under the ambit of section 489-F, P.P.C. In case no such arrangements were made by the issuer of the cheque with his bank or even the bank account was closed and a cheque was issued then there is no doubt that the cheque was issued with dishonest intention.

Sardar Muhammad Aslam v. S.H.O./Incharge, Police Station Mirpur Abbottabad and 6 others 2013 YLR 108 ref.

Miss Naila Tabassum for Appellant.

Ms. Azra Iqbal for Respondent No.1.

Ms. Akhtar Rehana, Additional Prosecutor General for the State.

Date of hearing: 24th April, 2013.

2013 Y L R 1817

[Sindh]

Before Aqeel Ahmed Abbasi, J

Syed AYAZ HAIDER---Petitioner

Versus

Messrs NOBLE HOUSE (PVT.) LTD. through Chief Executive and 3 others---Respondents

Constitutional Petition No.S-305 and C.M.A. No.1366 of 2010, decided on 15th April, 2013.

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

----Ss. 2(f)(j) & 15---Filing of ejectment petition---Rent Collector---Competence---Objection of non-production of resolution of the company (landlord)---Tenant had never disputed the relationship of landlord and tenant nor the status of respondent as rent collector/landlord had been challenged---Respondent was competent person to file ejectment petition in his capacity as rent collector/landlord.

(b) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), Ss.2(f)(j) & 15---Constitutional petition--- Scope---Ejectment of tenant---Concurrent findings recorded by the courts below, unless proved to be perverse, without jurisdiction and patently illegal, could not be disturbed while exercising constitutional jurisdiction---Disputed questions of fact could not be resolved by filing constitutional petition nor scrutiny and reappraisal of the evidence, upon which concurrent findings had been recorded by the courts below, particularly in rent matters, was not permissible in constitutional jurisdiction---Impugned judgment and decree did not suffer from any illegality or jurisdictional error---Constitutional petition being devoid of any merit was dismissed.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Secretary to Govt. of Punjab, Forest Department, Punjab, Lahore v. Ghulam Nabi and others PLD 2001 SC 415 and Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 rel.

M. Saeed Chandio for Petitioner.

Habib-ur-Rehman and Ghulam Mujtaba for Respondents.

Date of hearing: 21st March, 2013.

2013 Y L R 1827

[Sindh]

Before Abdul Rasool Memon, J

MUMTAZ ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.428 and 433 of 2011, decided on 1st February, 2013.

(a) Criminal trial---

----Burden of proof---Burden of proof lay on the prosecution which had to prove the charge beyond reasonable doubt.

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

----S. 417---Appeal against acquittal---Accused after acquittal from criminal charge enjoyed double presumption of innocence, one before the trial of case and the other after his acquittal---Court while dealing with an acquittal appeal was bound to examine whether court below had not ignored any evidence on record, or had discarded any evidence for the reasons not recognized by law.

Barkat Ali v. Shaukat Ali and others 2004 SCMR 249 rel.

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

----Ss. 452, 337-A(i), (ii), (iii), 337-L((2) & 337-F(vi)--- House-trespass after pre-paration for hurt, assault or wrongful restraint; causing shajjah, without exposing bone, exposing any bone and fracturing the bone of the victim; other hurt, and causing munaqqilah to any person---Appreciation of evidence---Parties were on disputed terms over agricultural land---Complainant party was hostile and inimical towards accused persons---All eye-witnesses were closely related inter se---People reportedly had gathered at the place of wardat, but none of them had been examined in the case---Independent corroboration to the ocular account furnished by the prosecution, was lacking in the case---Evidence of the eye-witnesses carried major contradiction, which had made the whole case of prosecution as doubtful---No specific role was assigned to accused in the F.I.R.; even the complainant and prosecution witnesses had not implicated accused specifically---Medical evidence did not support contents of F.I.R. and evidence of complainant---Rifle had not been stolen or taken away by accused as alleged---Such contradictions had shaken the reliability of the eye-witnesses and had created serious doubts in the prosecution case---Delay of 6-1/2 hours in lodging F.I.R., had not satisfactorily been explained---Apprehension existed that F.I.R. was lodged after due deliberation and consultation---Statements of injured eye-witnesses were not recorded immediately---Statement of witnesses of mashirnama of injuries were recorded and prepared after about 10 days and no explanation for such a long delay was furnished by the prosecution---Radiologist report or opinion of expert was not produced by prosecution witness---Concealment of material facts by the eye-witnesses had made them unreliable---Eye-witnesses sustained injuries, but mere injury on their person, itself was not indicative to the fact that prosecution witnesses had told the truth---Prosecution had to prove its case through independent uninterested and trustworthy evidence---Conviction and sentence awarded to accused persons were set aside, they were acquitted of the charge, in circumstances.

The State v. Khan Muhammad alias Khanan and others 2005 PCr.LJ 811; Mst. Naseem Jan v. Khawaj Muhammad PLD 2004 Pesh. 134; Abdul Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Muhammad Ahmed and another v. The State 2010 SCMR 660; Yaqoob Shah v. The State PLD 1976 SC 53; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Iqbal alias Javed Iqbal v. The State PLD 1976 SC 291; Muhammad Afzal and 2 others v. The State 2003 SCMR 1678 and Taj v. The State 2012 SCMR 43 distinguished.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Jehangir v. Nazar Farid and another 2002 SCMR 1986; Muhammad v. The State 1993 SCMR 550 and Nasir Ali v. Sajjad Ali PLD 2006 SC 560 rel.

(d) Criminal trial---

----Evidence---Corroboration---Where a large number of accused were involved, and there was admitted enmity between the parties, then independent corroboration to prosecution version was necessary.

Muhammad Irshad and another v. The State 1999 SCMR 1030 rel.

(e) Criminal trial---

----Medical evidence---Truthfulness of doctor---No irrefutable presumption could be made that doctor was always truthful witness, but his evidence to be appreciated like that of any other witness.

Mayur Panabhat Shah v. The State of Gujrat (1982) SC Cases 396 rel.

(f) Criminal trial---

----Counter-case---Appreciation of evidence---Principles---Each case was to be decided on the basis of legal evidence produced therein the purpose for trying counter case together was only to insure that inconsistent findings were not given.

Abdul Qadir Halepoto for Appellant (in Criminal Acquittal Appeal No.428 of 2011).

Mehmood A. Qureshi for Respondents Nos. 2 to 5 (in Criminal Appeal No.433 of 2011).

Muhammad Ashraf Kazi for Appellant (in Criminal Acquittal Appeal No.433 of 2011).

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

Date of hearing: 19th December, 2012.

2013 Y L R 1841

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

Mst. JAMEELA---Petitioner

Versus

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

Constitutional Petition No.D-3842 and C.M. No.40869 of 2012, decided on 14th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Quashing of F.I.Rs.---Harassment by Police---False and frivolous F.I.Rs.---Petitioner sought quashing of F.I.Rs. registered against her brothers and also sought a direction to restrain the respondent police-officers from harassing her and her family---Contention of the petitioner was that the respondent police officers were harassing the petitioner and her family and demanding illegal gratification in return---Validity---On basis of report submitted by the DSP on the matter, it was clear that the version of the petitioner was correct and the involvement of the petitioner's brothers in the F.I.Rs. was incorrect---No explanation as to the discrepancies in the F.I.Rs. was given by the respondent police officers---Impugned F.I.Rs. therefore, appeared to be vindictive in nature and were false and frivolous, the same were quashed, in circumstances---High Court observed that it was time that senior police officers take action to restore trust of people in the police and directed the Inspector General Police to take disciplinary action against the respondent police officers---Constitutional petition was allowed accordingly.

Munawar Hussain for Petitioner.

Saleem Akhter, A.P.-G. for Respondent No.4 Inspector Ch. Afzal, S.H.O., Police Station Kh. Ajmer Nagri and S.-I. Ghulam Murtaza of Police Station Kh. Ajmer Nagri.

2013 Y L R 1853

[Sindh]

Before Aftab Ahmad Gorar, J

MUNEER AHMAD and another---Petitioners

Versus

The STATE---Respondent

Criminal Bail Application No.S-397 of 2012, decided on 31st December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Penal Code (XLV of 1860), S. 34---Haraabah, common intention---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---F.I.R. lodged after consultation---Doubtful occurrence---Effect---Accused persons allegedly robbed a tractor from the complainant party---Said tractor was subsequently recovered by the police after an encounter with the accused persons and a separate F.I.R. was registered against them for such recovery---Complainant had provided names of accused persons with their parentage and previous and present residential addresses, which showed that accused persons were previously known to him---Despite such fact F.I.R. was lodged with a delay of 10 days and that too after consultation with nekmards---Record showed that police allegedly recovered an unregistered tractor from accused persons during the encounter---F.I.R. lodged for recovery of tractor did not contain S. 412, P.P.C. (dishonestly receiving property stolen in the commission of dacoity)---During the alleged encounter between police and accused persons nobody from either side was shown to have received any injury and even no bullet hit the tractor or police vehicle---Accused persons had already been granted bail in the F.I.R. registered for the recovery of tractor---After robbing the tractor, accused persons were allegedly plying it in the area, where complainant party resided---Such fact did not appeal to reason and created reason-able doubt---Case was one of further inquiry---Accused persons were released on bail accordingly.

Muhammad Afzal Jagirani for Applicant.

Miss Shazia Surahio for the State.

Date of hearing: 31st December, 2012.

2013 Y L R 1863

[Sindh]

Before Irfan Saadat Khan, J

ABDUL MATEEN through Legal Heirs and others---Petitioners

Versus

SALMAN BUTT and 2 others---Respondents

Constitutional Petition No.S-1331 of 2011, decided on 9th May, 2013.

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

----O.XX, R.3---Constitution of Pakistan, Art. 199--- Constitutional petition--No alteration in the judgment announced by the Judge in the open court---No difference in the order/judgment announced and the copy of the order provided to the party---High Court declined interference.

Mian Muhammad Shahbaz Sharif v. Election Commission of Pakistan, Islamabad PLD 2003 Lah. 646 rel.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord---Criterion---Landlord filed ejectment petition for vacation of shop on the ground of his personal bona fide use---Ejectment petition was accepted concurrently---Validity---Wife of the landlord-respondent required the lower portion of the premises, wherein three shops were located, for opening a Day Care Centre---Tenant-petitioner had not denied the fact that the premises was not required by the landlord-respondent for his own use and no malice had been found on his part and the pleadings of the landlord-respondent had remained consistent---Property of the landlord-respondent was his only property and there could be no question of having alternate place for opening the said Day Care Centre---Out of three shops, one shop was vacant and so far as the other two shops were concerned the other tenant had given an assurance to the landlord-respondent to vacate the said shop as and when required---Third shop was in occupation of the present tenant-petitioner and for opening a Day Care Centre the whole place was required---Premise that due permission for opening a Day Care Centre from concerned quarter had not yet been obtained hence no personal bona fide use had been established, was not correct---Tenant-petitioner was to prove that the said place was not required by the landlord-respondent for his or her personal bona fide use which in the present case had not been established by the tenant-petitioner; it was the prerogative of the landlord-respondent to choose among a number of places which would suit him or her best and no bar could be placed in that behalf upon him---Only criterion, which had to be fulfilled by the landlord-respondent so far as the cases of personal bona fide use were concerned, was to establish that such place was genuinely required by the landlord in good faith and such good faith had to be established from the facts obtaining in a case.

Mst. Akhtari Begum v. Muhammad Qasim 2000 SCMR 1937; Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 and Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd., and others 2006 SCMR 117 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Scope---Concurrent findings given by the courts below were not found to be either suffering from any misreading or non-reading of the evidence---Constitutional petition was dismissed.

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

----S.15---Ejectment---Pagri---Tenant had paid Pagree at the time of occupying the shop in question---Pagri had to be paid by the landlord-respondent to the tenant-petitioner at the time of handing over the vacant possession of the shop.

Yousaf Iqbal for Petitioners.

Mahmood Ahmed Khan for Respondent No.1.

Date of hearing: 2nd May, 2013.

2013 Y L R 1876

[Sindh]

Before Farooq Ali Channa, J

SHAHABUDDIN BARKAT ALI and 4 others---Petitioners

Versus

MUHAMMAD ADNAN and 2 others---Respondents

Constitutional Petitions Nos.S-102 to 127 of 2011, decided on 22nd April, 2013.

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

----Ss. 2(f)(j) & 15---Landlord and tenant, relationship of---Dispute of ownership between the co-sharers of the building---Once the tenant paid the rent, the relationship of tenant and landlord would be established---Rent Controller had no jurisdiction to declare the respondents to be the tenants of some of the co-sharers of the building till the dispute of ownership over the building was decided by the civil court.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Findings of both the courts below not suffering from any infirmity nor based upon misreading and non-reading of evidence---Effect---Constitutional petition was dismissed.

Raja Abdul Rauf v. Habib Ahmed and others PLD 2005 Kar. 416 rel.

Aijaz Ahmed Khan for Petitioners.

M.R. Sethi for Respondents.

Date of hearing: 22nd April, 2013.

2013 Y L R 1886

[Sindh]

Before Naimatullah Phulpoto, J

ARZ MUHAMMAD and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-350 of 2012, decided on 14th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 504, 506(2), 147, 148 & 149---Shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah (damiyah), intentional insult with intent to provoke breach of peace criminal intimidation, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---General allegations---Investigation complete---Challan already submitted---Effect---Accused and co-accused were alleged to have caused stick blows to the complainant side during the occurrence---Allegations against accused and co-accused were general in nature, and their vicarious liability was yet to be determined at trial---Investigation against accused and co-accused was complete and they were no more required for further investigation---Challan had already been submitted in court---Accused and co-accused were behind bars since the last 8 months---Case was one of further inquiry---Accused and co-accused were admitted to bail in circumstances.

Nisar Ahmed G. Abro for Applicants.

Imtiaz Ahmed Shahani for the State.

Muhammad Saleem Jessar for the Complainant.

Date of hearing: 14th December, 2012.

2013 Y L R 1898

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Mrs. REFHAT HAMIDEE---Appellant

Versus

Sheikh ABDUL AZIZ---Respondent

First Rent Appeal No.5 of 2012, decided on 23rd October, 2012.

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

----S. 24---Transfer of Property Act (IV of 1882), S.53-A---Landlord and tenant, relationship of---Appellant was inducted in the property in question as a "tenant"---Sale and purchase was alleged to have been made between the tenant and predecessor-in-interest of landlord---No registered sale-deed was executed in favour of the appellant/tenant by previous owner---Unless and until registered sale-deed was executed in between the parties, the relationship of tenant and landlord existed in between the parties and the tenant could not get benefit of "sale agreement" to avoid payment of rent---Agreement to sell did not create any right, title or interest in the property itself, but same only would grant right to get contract completed through decree for specific performance of contract from civil court if alleged vendor had refused to perform and execute alleged agreement---Trial Court was justified in ordering the eviction of the appellant from the demised premises---Appeal was dismissed.

Muhammad Nawaz Magsi v. Haji Illahi Bux and others 2010 CLC 407 distinguished.

(b) Transfer of Property Act (IV of 1882)---

----S. 53-A---Law did not entitle a person to transfer a right in a property which he himself did not possess though the property might be in his name---Land in question had already been agreed to be sold under agreement to sell in favour of plaintiff and the same was coupled with transfer of possession---Subsequent transferees could not be conferred with any lawful title in the disputed land and they could not even claim to be a bona fide purchasers for value without notice.

Muhammad Nawaz Magsi v. Haji Illahi Bux and others 2010 CLC 407; Chaudhary Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja and others PLD 1994 Lah. 252; Dr. Abdul Hafeez v. Province of Punjab and others PLD 1991 SC 165; 1984 CLC 3483; 1995 SCMR 1407; 1997 SCMR 567; 2004 YLR 3317; 2004 CLC 862; 2005 SCMR 1079; 2007 CLC 1225; 2008 CLC 650; PLD 2008 Kar. 424; and 2009 SCMR 1396 ref.

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

----S. 24---Determination of genuineness of conveyance deed---Validity---Question about genuineness or otherwise of conveyance deed executed by the previous owner in favour of respondent/landlord fell within the domain of civil court of competent jurisdiction and not the Rent Controller---Tenant who was not paying the monthly rent rendered herself liable to eviction.

Iftikhar Javaid Qazi for Appellant.

Sohail H.K. Rana for Respondent.

Date of hearing: 9th May, 2012.

2013 Y L R 1905

[Sindh]

Before Abdul Rasool Memon, J

MIR HASSAN---Appellant

Versus

The STATE and 6 others---Respondents

Criminal Acquittal Appeal No.452 of 2011, decided on 1st February, 2013.

(a) Criminal trial---

----Burden of proof---Burden of proof would lie on the prosecution, which had to prove the charge beyond reasonable doubt.

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

----S.417(2-A)---Appeal against acquittal---Accused after acquittal from criminal charge would enjoy double presumption of innocence; one before the trial of case and the other after his acquittal---Court while dealing with an acquittal appeal, was bound to examine whether court below had not ignored any evidence on record, or had discarded any evidence for the reasons not recognized by law.

Barkat Ali v. Shaukat Ali and others 2004 SCMR 249 rel.

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

----Ss.497, 337, 337-F(ii) & 504---Criminal Procedure Code (V of 1898), S.417(2-A)---Adultry, Shajjah, causing damiyah, intentional insult intent to provoke breach of peace---Appeal against acquittal---Principles---Appreciation of evidence---Benefit of doubt---Complainant and prosecution witnesses were closely related to each other---Complainant though had concealed the enmity with accused person, but had admitted the pendency of civil suits---Oral and documentary evidence had shown that complainant and accused persons, were on disputed terms over agricultural land---Complainant party being hostile and inimical towards accused persons, their evidence being interested, was to be scrutinized with care and caution---Court, in circumstances, was to look for independent corroboration---Incident took place in a thickly populated area in a day time, but no person from that locality had been cited or examined as a prosecution witness---Independent corroboration was lacking in the case---Major contradictions existed in between the evidence of prosecution witness, which had made the whole case of prosecution doubtful---Mashirnama of injury was prepared after 10 days of incident---Neither Mashir of injuries nor Investigating Officer had seen the actual injuries---Memo of injury had been prepared at the instance of complainant---Concealing of injuries and registration of counter case by the complainant, had adversely affected their credence, and their evidence, was not confidence inspiring---Said contradictions had affected to the reliability of the eye-witnesses and created shadow of doubt on the prosecution case---Ocular testimony and medical evidence were also contradictory---No recovery was effected either of robbed property or weapon used in the crime from the possession of accused persons---Accused persons who had earned acquittal in their favour, enjoyed double presumption of innocence, and the court while examining the case, must be very careful and conscious in interfering with acquittal order, and should not set aside the same merely on the reason that some other view was also possible---Interference could be made under S.417, Cr.P.C., if it was proved that court whose judgment was under scrutiny had misread evidence---Complainant having failed to prove that any evidence was misread, or received such evidence illegally, accused who were able to create shadow of doubt on the prosecution case, were entitled to its benefit, not as a matter of grace or concession, but as a matter of right.

Jehangir v. Nazir Farid 2002 SCMR 1986; Mst. Jallan v. Muhammad Riaz PLD 2003 SC 644 and Saeed Muhammad Shah v. The State 1993 SCMR 550 rel.

Abdul Qadir Halepoto for Appellant.

Muhammad Ashraf Kazi for Respondents.

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

Date of hearing: 19th December, 2012.

2013 Y L R 1911

[Sindh]

Before Abdul Rasool Memon, J

Syed AKBAR ALI---Appellant

Versus

Messrs MAMUN ALI BUMASAK (PVT.) LTD. through Chairman---Respondent

First Rent Appeal No.31 and C.M.As. Nos. 3177 and 3178 of 2010, decided on 1st February, 2013.

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

----Ss. 17 & 24---Civil Procedure Code (V of 1908), S. 12(2)---Limitation Act (IX of 1908), Art. 181---Ejectment order passed by Additional Rent Controller upheld by High Court and Supreme Court---Tenant's application under S. 12(2), C.P.C. filed on 11-6-2009 for setting aside ejectment order dated 6-6-2005 after dismissal of his petition for leave to appeal on 4-1-2006 by Supreme Court---Dismissal of such application by Additional Rent Controller for being time-barred and not maintainable---Validity---Pleas agitated in such application regarding fake agreement and relationship of landlord and tenant had already been raised by tenant in his written reply to ejectment petition and decided by Rent Controller after allowing parties to lead evidence and hearing them---Ejectment order had attained finality after dismissal of tenant's petition by Supreme Court---Landlord had obtained possession of demised shop four (4) years before filing of such application by tenant---Limitation of three years as provided under Art. 181 of Limitation Act, 1908 for filing such application, if counted from date of ejectment order or order of Supreme Court, had already expired---High Court dismissed appeal in circumstances.

Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 and Ardeshir Cowasjee and others v. K.B.C.A. and others PLD 2003 Kar. 314 ref.

Lahore Development Authority through Director-General, LDA, Lahore v. Mst. Shamim Akhtar and another 2003 MLD 1543 and Warraich Darri Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 rel.

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

----S.5---Delay, condonation of---Scope---Law would favour vigilant, but not an indolent person having slept over his rights---Person in order to bring his case within limitation would have to explain delay of each day.

(c) Administration of justice---

----Law would always favour vigilant and not an indolent person having slept over his rights.

Nehal Hashmi for Appellant.

Iftikhar Javed Qazi for Respondent.

2013 Y L R 1917

[Sindh]

Before Aziz-ur-Rehman, J

UMAR FAROUK SHEIKH---Plaintiff

Versus

Mst. SHAZIA UMAR and 2 others---Defendants

Suit No.468 of 2008, decided on 13th May, 2013.

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

----Art.133---Plaintiff's statement in examination-in-chief and document produced by him in evidence, if not cross-examined, would be deemed and treated as accepted by defendant---Illustration.

Muhammad Yasin v. Shabbir Ahmed 1985 SC 2111 and Raees Muhammad Mushtaq v. Hyder Bux PLD 1975 Kar. 416 rel.

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

----Art.117---Document, genuineness of---Burden of proof---Primary duty of beneficiary of a document would be to prove its genuineness.

Nijat Ali v. Sharif Khan 2012 CLC 1333; Mst. Razia Begum and others v. Ismat Khan PLD 2011 Pesh. 10; Syed Abdullah ABIDI v. Mst. Hijra Abidi and another PLD 2009 Kar 252; Hafiz Tasadduq Hussain v. Muhammad Din through LR.s. and others PLD 2011 SC 241; Overseas Pakistani Foundation and others v. SQN. LDR. (RETD.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Tasleem Khan v. Sher Ghulam and others 2010 SCMR 1422; Federation of Pakistan v. Jaffar Khan PLD 2010 SC 604; Razia Beugm and others v. Asmat Khan PLD 2011 Pesh. 10; Ashiq Hussain v. Ashiq Ali 1972 SCMR 50; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others PLD 1975 Kar. 598 and Muhammad Noor Alam v. Zair Hussain and 2 others 1988 MLD 1122 and Fateh Muhammad through L.Rs. and others v. Fida Hussain through L.Rs. 2007 CLC 1885 ref.

Rafiq Ahmed Kalwar for Plaintiff.

Aijaz Mubarak Khattak for Defendant No.2.

Date of hearing: 2nd May, 2013.

2013 Y L R 1948

[Sindh]

Before Salahuddin Panhwar, J

BAKHSH ALI---Applicant

Versus

The STATE and 7 others---Respondents

Criminal Miscellaneous Application No.357 of 2012, decided on 27 August, 2012.

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

----Ss. 156, 173 & 561-A---Investigation stage---Plea of alibi taken by accused---Affidavits submitted in support of such plea, reliance on---Scope---Accused placed in column No.2 of the report under S.173, Cr.P.C. on basis of plea of alibi---Magistrate relying on said report and releasing the accused---Validity---Act of releasing accused on the plea of alibi before commencement of his trial and recording of any evidence whatsoever was not consistent with the weight of ocular and medical evidence available against the accused---Name of accused transpired in the F.I.R., with specific role of causing direct fire-shot injury---Incident took place in day time and eye-witnesses supported the version of the complainant narrated in the F.I.R.---Medical evidence was in conformity with the ocular version---Finding of inquiry report that at time of incident accused was with his counsel and affidavits were also submitted in support of such plea of alibi had no evidentiary value and such affidavits could not be considered at stage of investigation---Magistrate was bound to apply his judicial mind and was not bound to follow the ispe dixit of the police---Application was allowed, impugned order of Magistrate was set aside and accused was arraigned as an accused in the case along with other co-accused.

Saeen Bux v. Civil Judge and Judicial Magistrate Matiari and 9 others 2010 PCr.LJ 1060 and Riaz Gul v. The State through Superintendent of Police, Gilgit 2011 PCr.LJ 991 ref.

Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354 rel.

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

----S. 173---Police report---Investigation officer---Duty of---Investigation officer was not supposed to arrogate himself the function of adjudication in order to determine nature of offences and then give a pre-trial verdict of the innocence of the accused.

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

----S. 156---Investigation stage---Plea of alibi taken by accused---Affidavits submitted in support of such plea, reliance on---Validity---Such affidavits had no evidentiary value and could not be considered at stage of investigation---Plea of alibi could be established in the Trial Court and only Trial Court was competent to decide the fate of such a plea while deciding the case.

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

----S. 173---Reliance on police report by Magistrate---Scope---While deciding the question of cognizance on report under S.173, Cr.P.C., the Magistrate had to apply his judicial mind and was not bound to follow the ipse dixit report of police.

Iftikhar Ali Arain for Applicant.

Farman Ali Kanasiro for Respondents Nos. 4 and 8.

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

2013 Y L R 1966

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

ATTA-UR-REHMAN alias IBRAHIM alias UMAR alias TAHIR and another---Appellant

Versus

The STATE---Respondent

Spl. Anti Terrorism Jail Appeals Nos. 8 and 9 and Confirmation Case No.3 of 2006, decided on 5th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-F(iii), (v), (vi) & 34---Anti-Terrorism Act (XXVII of 1997), S.9(a)(c)(d)(h)---Explosive Substances Act (VI of 1908), S.3---Qatl-e-amd, causing Mutalahimah, Hashimah, Munaqqilah, common intention, acts of terrorism, and causing explosion---Appreciation of evidence---Delay of 4 hours in lodging F.I.R. in heinous offence, was of no consequence, specially when delay was properly explained---Names of accused persons having not been mentioned in the F.I.R., no mala fide could be attributed to complainant---Eye-witnesses, who were injured in incident, had fully supported the case of prosecution---Accused person along with companions made indiscriminate firing upon Rangers Force, from automatic weapons and used hand grenade, which resulted murder of two persons---Testimony of injured witnesses, in such act of terrorism, was to be kept on a high pedestal, as injured witnesses would not in any case would substitute a wrong person for actual assailant---Eye-witnesses of the incident, had no previous enmity with accused persons---Incident was day time occurrence and all the eye-witnesses had clearly seen accused persons at the relevant time---Prosecution witnesses picked up both accused persons in identification parade, and identified them in Trial Court---Delay in holding of identification parade would not be fatal for the prosecution, when eye-witnesses of the incident had clearly identified that accused persons present before the court were same---Evidence of Rangers personnel could not be disbelieved, simply because they were members of Armed Forces---Eye-witnesses were natural and independent, and ocular evidence was fully corroborated by medical evidence---Prosecution had proved the motive---Trial Court had properly assessed the evidence and gave sound reasons---No reason was on record to disagree with the appreciation of evidence by Anti-Terrorism Court---Manner and method of incident was heinous, shaking, involving terrorist act, creating panic to the society as a whole, and penalty of death had rightly been awarded to accused persons by the Trial Court---No mitigating circumstances existed in the case to convert the death penalty to the imprisonment for life, Judgment of Anti-Terrorism Court, was maintained, in circumstances.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; Sohail Abbas and others v. Kashif and others PLD 2001 SC 546; Muhammad Yaqoob alias Qooba v. The State 1999 SCMR 1138; Nasir Mehmood and others v. The State 2008 YLR 1755; Muhammad Iqbal and another v. The State 1984 SCMR 1184; Hari Nath and another v. State of U.P 1989 MLD 1062; Nasreen Bibi v. The State 2009 PCr.LJ 619; Solat Ali Khan v. The State 2002 SCMR 820; Ajab alias Rajab and another v. The State 2004 MLD 180; Muslim Khan and others v. The State 2002 YLR 2813; Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215 and Ahmad Nawaz and another v. The State 2011 SCMR 593 ref.

Solat Ali Khan v. The State 2002 SCMR 820 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Muhammad Ilyas Khan and Muhammad Farooq for Appellants.

Khadim Hussain Khuharo, D.P.G. for the State.

Dates of hearing: 29th, 30th, 31st January, 1st, 6th, 7th and 8th February, 2013.

2013 Y L R 2011

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD ALI and 10 others---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

Constitutional Petition No.S-118 of 2007, decided on 28th May, 2013.

(a) Transfer of Property Act (IV of 1882)---

----S. 54---Agreement to sell property---Evidentiary value---Such agreement would not create any right/title/ownership in favour of purchaser except to file suit for its specific performance or till finalization of deal by paying entire sale price and mutating property in his name---Purchaser only in case of payment of entire sale price could assert his right to property, but he could not assert such right in case of part payment of sale price---Principles.

Messrs Sattar Brothers v. Messrs Hanif Jee and Sons 2005 CLC 1696; Mst. Aisha and another v. Mrs. Samar Afroze 2008 YLR 24; Mst. Mobin Fatima v. Muhammad Yamin and others PLD 2006 SC 214; Hafeezuddin and others v. Badaruddin and others PLD 2003 Kar. 444; Saifullah v. Muhammad Bux and others 2003 MLD 480 and Muhammad Anwar Khan v. Mian Ashgar Ali 1988 CLC 402 ref.

Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Mst. Azeemun Nisa Begum v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877 rel.

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

----O. XX, R. 1 & O. XLI, R. 32---Judgments of Trial Court and Appellate Court being at variance---Effect---Judgment of Appellate Court in such case would be preferred---High Court could correct judgment of Appellate Court, if its findings were either suffering from misreading or non-reading of evidence or its conclusions drawn were against law.

Irfan Ahmed Qureshi for Petitioner.

Ejaz Ali Hakro for Respondent No.3.

Faheem Ahmed Panhwar, State Counsel.

Date of hearing: 22nd May, 2013.

2013 Y L R 2032

[Sindh]

Before Irfan Saadat Khan, J

CHETTAN---Applicant

Versus

GHULAM HUSSAIN and 2 others---Respondents

Criminal Miscellaneous Application No.S-75 of 2012, decided on 8th February, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Application for cancellation of bail, dismissal of---Allegations against the accused were that they committed robbery while armed with pistol and they snatched motorcycle from the complainant---Accused were granted bail by the Trial Court---Motorcycle, being the case property, had never been produced in the court---If the accused were habitual criminals, then why no F.I.R. and other relevant material was produced by the complainant in the court---Delay of 18 hours in lodging the F.I.R. had not been explained as to when the accused were arrested from the spot why it took 18 hours to the police to lodge an F.I.R.---Consideration for granting the bail were different from the consideration of cancellation of bail---Bail could be cancelled if the order was perverse or had been passed by ignoring the facts and in violation of the law and had resulted in miscarriage of justice---Counsel for the complainant had failed to demonstrate as to what patent illegality had been committed by the Trial Court in enlarging the accused on bail---Petition was dismissed accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Jahangir Khan Pathan for Applicant.

Hidayatullah Abbasi for Respondents Nos. 1 and 2.

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

Date of hearing: 8th February, 2013.

2013 Y L R 2051

[Sindh]

Before Sajjad Ali Shah and Aftab Ahmed Gorar, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-145 of 2009, decided on 27th February, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Samples, were sent to Chemical Examiner, the very next day of occurrence, and report of Chemical Examiner was in positive---Both prosecution witnesses, were put to the test of lengthy cross-examination, but their testimony qua the date of incident, quantity of charas and place of incident could not be shattered---Contradictions, allegedly pointed out by counsel for accused, were minor in nature and would not be fatal to the prosecution case---Accused was apprehended while holding the plastic bag containing contraband charas intending thereby to transport the same to another place---No reason or ground was available to show that accused was not in knowledge of substance lying in his bag---Accused was proved to be taking away the contraband with pre-planning---Prosecution had also proved departure and arrival of the complainant party by producing entries---Accused also failed to show any enmity or ill-will against the complainant and mashir causing them to depose against him falsely---Foisting of such a huge quantity of contraband charas upon accused was not possible---Trial Court, in circumstances did not commit any illegality while awarding sentence to accused, against whom sufficient evidence was on record to prove charge under S.9(c) of Control of Narcotic Substances Act, 1997---No ground being available to interfere in the impugned judgment of the Trial Court, appeal against said judgment was dismissed, in circumstances.

Shoukat Ali Pathan for Appellant.

Syed Meeral Shah Deputy Prosecutor-General for the State.

Date of hearing: 14th February, 2013.

2013 Y L R 2067

[Sindh]

Before Abdul Rasool Memon, J

QALANDAR BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.117 of 2013, decided on 25th February, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss.420, 468, 220, 225-A, 446, 471, 477 & 34---Cheating, forgery, commitment for trial or confinement by person having authority, who knows that he was acting contrary to law, omission to apprehend on part of public servant, house breaking by night, using as genuine a forged document, fraudulent cancellation, destruction etc. of will or valuable security etc. and common intention---Pre-arrest bail, refusal of---Name of accused was mentioned in the F.I.R., and sufficient material was available on record, in shape of statement under S.161, Cr.P.C. and statement of witnesses against accused---Accused was serving as Deputy Superintendent Jail, and three under trial prisoners, who were involved in heinous crimes, including murder, earned their release through accused, who did not effectively verify their particulars and authenticity of release writs---Mala fide had been pleaded by accused in the grounds of bail application, but same was not attributed to the complainant or any of the witnesses as also to the Police---Nothing was placed on record to show that case was outcome of enmity; or that the complainant, or any prosecution witness was biased against accused---Merely because the offence was not punishable with death or imprisonment for life or 10 years, was no ground for grant of pre-arrest bail in each and every case---Serious allegations were levelled against accused, not only of negligence, but it was alleged that accused in furtherance of common intention/object with co-accused, had acted upon false release writ, whereby accused involved in serious cases had succeeded to get themselves released; and escaped from central jail, which amounted to an offence against society---Accused having not been able to make out the case of bail before arrest, order for grant of interim pre-arrest bail was recalled and accused was directed to surrender before Trial Court for being taken into custody.

Muhammad Moosa and others v. The State SBLR 2008 Sindh 839; Saeed Ahmed v. The State 1996 SCMR 1132; Karim Haider and others v. The State 1986 SCMR 938; Lal Muhammad Kalhoro and others v The State 2007 SCMR 843; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Sameen Jan (Naib Tehsildar) and another v. The State and another PLD 2011 SC 509; Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Muhammad Ashraf v. The State 2003 MLD 165; Firdaus Ahmad Khan v. The State 2004 MLD 208; Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Muhammad Siddiq Awan v. The State 2003 PCr.LJ 890; Bhooro Khan and another v. The State 2003 MLD 125 and Sikandar Janwari v. The State 2002 MLD 113 ref.

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

----S. 498---Pre-arrest bail, grant of---Requirements---For grant of pre-arrest bail, accused was required to satisfy the court regarding his involvement on account of mala fide; and ulterior motives, which under the law, were to be specifically attributed.

Muhammad Akbar Khan for Applicant.

Imtiaz Ali Jalbani, A.P.-G. for the State.

Date of hearing: 20th February, 2013.

2013 Y L R 2081

[Sindh]

Before Farooq Ali Channa, J

Mst. MEHAR PARVEEN and another---Applicants

Versus

SHAHID IQBAL and another---Respondents

Civil Revision Application No.136 of 2009, decided on 15th May, 2013.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for declaration---Gift deed---Power of attorney---Scope---Burden of proof---Contentions of plaintiffs were that they, being owners of the suit property had delivered the possession of the same to the defendants for six months and they refused to vacate the same and claimed to be the owners of the said property---Suit was dismissed concurrently---Validity---Trial Court had decided the suit issue-wise by discussing the evidence with cogent reasons and had come to the conclusion that the plaintiffs-petitioners had failed to produce any evidence that suit property was gifted and physical possession was handed over---Trial Court had also examined the sanctity of general power-of-attorney and formulated question as to whether attorney could make declaration of gift on behalf of principal---Trial Court had dismissed the suit after considering the evidence led by both the parties and Appellate Court had decided all the issues more elaborately on the basis of evidence led by both the parties and had observed that the plaintiffs-petitioners had failed to discharge the burden to prove the power-of-attorney in terms of Article 117 of Qanun-e-Shahadat, 1984 and discussed the legal status of the declaration and confirmation of oral gift deed and the mutation of property on the basis of said gift deed and declared the same to be invalid and in violation of settled principles of law.

Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2007 Lah. 467 and Maqsood Ahmed and others v. Salman Ali PLD 2003 SC 31 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court to interfere with the concurrent findings of courts below was to be exercised if the subordinate courts had exercised the jurisdiction not vested in them or had failed to exercise jurisdiction so vested in them or if the courts below had committed material procedural irregularities and illegalities---Concurrent findings of both the courts below were based on the evidence available on record led by both the parties---No material irregularity or illegality having been pointed out in the proceedings and no case had been made out to interfere with the concurrent findings---Revision petition was dismissed.

Mehmood Habibullah and Faheem Zia for Applicants.

Mirza Sarfaraz Ahmed for Respondents.

Date of hearing: 9th May, 2013.

2013 Y L R 2103

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ABID---Appellant

Versus

MEHMOOD and 3 others---Respondents

Criminal Acquittal Appeal No.364 of 2012, decided on 21st January, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.249-A & 417(2-A)---Appeal against acquittal---Magistrate had based acquittal of accused person on the ground that prosecution had failed to procure attendance of prosecution witnesses though several opportunities were given to it---Validity---Section 249-A, Cr.P.C. empowered the Magistrate to acquit accused at any stage of the case, if the charge was groundless; there was no probability of accused being convicted of any offence and for such acquittal, he would record reasons---Trial Court could have taken coercive measures for procuring the attendance of the witnesses, but Magistrate instead of issuing coercive process, acquitted accused person---Impugned order being not sustainable in law, was set aside and case was remanded to the Trial Court with directions to proceed with the case, and decide the same in accordance with law.

The State v. Muhammad Afzal and another 2000 MLD 220 and Muhammad Younus Lakhani v. The State and another PLD 2006 Kar. 198 ref.

Ejaz Awan for Appellant.

Shahzado Saleem Nahyoon Asstt. P.G. for Respondents.

2013 Y L R 2122

[Sindh]

Before Farooq Ali Channa, J

Syed MANSOOR SADIQ ZAIDI---Petitioner

Versus

Mst. BEGUM NARJIS ZAIDI and another---Respondents

C.P. No.S-29 of 2012, heard on 5th April, 2013.

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

----S.15(2)---Default in payment of rent---Proviso to S.15(2) of Sindh Rented Premises Ordinance, 1979---Object---Object of legislature for enactment of proviso to S.15(2) of the Ordinance, was to avoid multiple litigations between the parties and to resolve the dispute of default in payment of rent at initial stage of the proceedings so as to avoid the abuse of lengthy procedure.

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

----S. 15(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Default in payment of rent---Tentative order---Rent Controller passed the order on interlocutory application, which being tentative in nature, interference was to be discouraged by the High Court in its constitutional jurisdiction, however, in exceptional circumstances jurisdiction under Article 199 of the Constitution could be invoked to avoid abuse of process of law and grave injustice to a party and to redress grave illegality.

Muhammad Khalid for Applicant.

Ainuddin Khan for Respondents.

Date of hearing: 5th April, 2013.

2013 Y L R 2137

[Sindh]

Before Irfan Saadat Khan, J

KHURRAM BIN HASSAN---Petitioner

Versus

IQRA FATIMA BAIG and 2 others---Respondents

Constitution Petition No.S-1319 of 2011, decided on 18th May, 2013.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry----Contention of wife was that at the time of the marriage her parents gave her certain dowry articles including jewellery---Suit was decreed concurrently----Validity---Dowry articles were given to the wife by her parents consisted of household articles and other items including jewellery; and said items were shifted to the husband's house---(Wife) due to the ill attitude of the husband left his house for good and thereafter filed suit for dissolution of marriage by way of khulla and return of dowry articles---Lengthy proceedings took place before the Trial Court where both the parties led their evidence and detailed cross-examination was made and the Trial Court after hearing both the parties through exhaustive order decreed the suit in favour of the wife---Trial Court while examining the father of the defendant-petitioner (husband) had observed that he had admitted in his cross-examination that the (wife) had brought all the articles mentioned in the plaint and the list to the husband's house which proved that the wife had taken all the items mentioned in the dowry list along with her to the husband's house---Number of receipts were produced before the Trial Court and the Trial Court after considering each and every receipt had passed the decree only in respect of those receipts which in its opinion appeared to be genuine---Dowry articles were not returned and were still with the husband and he was obliged to either return the same or to pay the cost---Courts below thrashing out the issue had come to the unanimous conclusion that prima facie case had been made out against the husband---Constitutional petition was dismissed.

Syed Ali Ashraf for Petitioner.

Khawaja Muhammad Azeem for Respondents.

Date of hearing: 15th May, 2013.

2013 Y L R 2147

[Sindh]

Before Naimatullah Phulpoto, J

FIDA HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.333 of 2012, decided on 20th May, 2013.

Penal Code (XLV of 1860)---

---S. 302/34---Qatl-e-amd and common intention---Appreciation of evidence---Allegation against the accused was that he along with co-accused committed murder of the brother of complainant---Statement of accused under S. 342, Cr.P.C. transpired that no question had been put to him regarding confessional statement made by him, recovery of pistol, motive and positive chemical report which was recorded in stereotype manner---All the incriminating pieces of the evidence were not put to the accused in his statement recorded under S. 342, Cr.P.C.---Judgment of the Trial Court against the accused was not sustainable under the law and conviction and sentence recorded against him were set aside and case was remanded back to the Trial Court for recording statement of the accused under S.342, Cr.P.C. and for decision within one month.

Muhammad Shah v. The State 2010 SCMR 1009 and Sheral alias Sher Muhammad v. The State 1999 SCMR 697 rel.

Professor Jamal Ahmed S. Mufti for Appellant.

Zahoor Shah, A.P.-G. for the State.

Complainant present in person.

2013 Y L R 2155

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD SIKANDAR MEHMOOD---Appellant

Versus

The State through FIA---Respondent

Criminal Appeal No.505 of 2011, decided on 9th April, 2013.

(a) Emigration Ordinance (XVIII of 1979)---

----S. 22(b)---Demanding or receiving money for providing foreign employment---Appreciation of evidence---Record showed that accused, in connivance with his associates and others, arranged/affixed false/forged protectors, clearance/ Registration and Visas on passports of the victims for employment abroad---Evidence of witnesses/victims was supported by recovery of their passports from the possession of accused at the time of his arrest during raid---Mashir of recovery, who was an independent witness, in his evidence had supported prosecution case, his evidence was corroborated by official witnesses of FIA, who arrested accused and recovered the passports---All said witnesses were cross-examined at length, but the defence counsel had failed to shatter their evidence, or to extract material contradictions to create doubt in prosecution case---Discrepancy in the timing of arrival of raiding team and preparation of Mashirnama, being minor in nature, would not be fatal to the prosecution case---Witnesses being victims/ affectees of offence, were natural and trustworthy witnesses, having no enmity against accused---Said witnesses had clearly implicated accused in each material particular---Prosecution had made out the case without any shadow of reasonable doubt against accused that he having no licence for sending persons abroad, was depriving the persons of considerable amount on pretext of providing them employment abroad---Conviction of accused under S.22(b) of Emigration Ordinance, 1979, was maintained, in circumstances.

(b) Emigration Ordinance (XVIII of 1979)---

----S. 18(a)---Passports Act (XX of 1974), S.6(1)(g)---Forging documents required for emigration---Wrongful possession of passport not lawfully issued---Appreciation of evidence---Prosecution had failed to examine, even a single witness to allege against accused that he in any manner was indulged in arranging or affixing the forged protectors, clearance/registration or visas for abroad---Per prosecution, the witnesses/the victims, had handed over the passports to accused with their own will and wish for their employment abroad---Accused had not misused the passports---Mere innocence or bona fide possession of passports, could be a wrongful possession of the passport of any other person, but such possession without any guilty mind, would not constitute the offence punishable under S.6(1)(g) of Passports Act, 1974---Accused was acquitted of charge under S.18(a) of Emigration Ordinance, 1979 and under S.6(1)(g) of Passports Act, 1974, in circumstances.

Khan Muhammad Sirohi for Appellant.

Qadir Hussain Khan, Standing Counsel for the State.

Date of hearing: 29th March, 2013.

2013 Y L R 2169

[Sindh]

Before Aftab Ahmed Gorar, J

HAKIM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-267 of 2012, decided on 4th March, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Case hinged upon strong circumstantial evidence against accused which had proved charge of murder of his wife along with her unborn baby boy of 7/8 months---Defence could not shatter said evidence---Extra-judicial confession, though was a weak type of evidence, but in the present case, it was the accused who after committing the murder of his wife, voluntarily appeared before the Police disclosed the detail of the incident and confessed that he had murdered his wife---Dead body of the deceased was recovered from bed room of accused on his pointation---Articles, i.e. blood-stained clothes, blood-stained earth, empty bullet from the place of incident, corroborated the version of prosecution with regard to commission of murder by accused---Medical evidence had corroborated the circumstantial evidence---Evidence of woman medical officer, had gone unrebutted and unchallenged---Ground taken by accused that ex-father-in-law of the deceased was holding her responsible for death of her first husband and that accused had been implicated at the instance of ex-father-in-law of the deceased was not believable being vague and not attracting common sense---Evidence adduced by minor sons of accused could not be considered, as said minors had no knowledge about the incident---Accused in his statement recorded under S.342, Cr.P.C., did not submit anything in disproof of the prosecution evidence, which, prima facie, connected accused with the commission of offence---Accused did not prove ill-will or enmity against the prosecution witnesses to falsely implicate him in the murder of his own wife---Accused had committed double murder, of his wife and an unborn son of about 7/8 months in a brutal manner, which act of accused was highly condemnable and required strict punishment---Trial Court had taken lenient view while awarding him life imprisonment, perhaps for lack of ocular evidence---Discrepancies pointed out by the counsel for accused, did not carry any weight, when there was strong evidence against accused regarding murder of the deceased---Appeal of accused was dismissed.

Muhammad Achar Machi v. The State 2001 PCr.LJ 1762; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Munawar Hussain alias Asghar v. The State 1991 SCMR 1601; Muhammad Farooq Afridi v. The State and 2 others 2003 YLR 2700; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Khadim Hussain v. The State 2004 PCr.LJ 1102 and Muhammad Akram v. The State 2009 SCMR 230 distinguished.

Ghulam Ali Samtio for Appellant.

Syed Meeral Shah Deputy Prosecutor-General Sindh for Respondent.

Date of hearing: 18th February, 2013.

2013 Y L R 2181

[Sindh]

Before Irfan Saadat Khan, J

MUHAMMAD FAROOQ---Petitioner

Versus

ABDUL WAHEED SIDDIQUI and 2 others---Respondents

C.P. No.S-1371 of 2011, decided on 22nd May, 2013.

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

----S.8---Constitution of Pakistan Art.199---Constitutional petition---Fair rent, determination of---Contention of the landlord was that he purchased the property and there was rent agreement dated 21-6-1988 executed between the tenant and previous owner regarding ground portion with one shop having two shutters at the rent of Rs.600 per month---Petition of the landlord was accepted concurrently and rent was enhanced from Rs.600 to Rs.6000 per month from the date of the filing of the rent petition---Validity---Premises (shop) was given on rent to the tenant-petitioner at the rate of Rs.600 per month in the year 1988 by the then landlord and since then the rent had not been increased by the tenant-petitioner till date---Prices of the items as well as taxes levied by the government had increased many a fold---Rent of the premises was to be fixed looking to the rent prevalent in the area and other factors---Trial Court in order to do substantial justice examined witness who was a tenant in a nearby shop and paying rent of his shop at the rate of Rs.6000 per month and both the shops were situated in front of each other and were separated by a street only---Trial Court after considering the fact that since the shop of the witness was situated in front of the shop in dispute, fixed the same rent i.e. Rs.6000 per month and the Appellate Court had observed that the area occupied by the tenant-petitioner was much bigger than the area of shop occupied by the witness and the rent at Rs.10 per shutter per day was too low, keeping in view the prevalent rent paid by the tenants in the adjoining shops---Finding of fact could not be determined in a constitutional petition---Shop occupied by witness could be considered to be at par with the premises occupied by the tenant-petitioner and such was an undeniable fact that the said witness was paying rent at the rate of Rs.6000 per month---Object of S. 8 of the Ordinance was to give fair chance to the landlord and the tenant to pay and to receive fair rent of a premises so that no one should be prejudiced---Trial Court as well as the Appellate Court had fixed the rent at Rs.6000 per month which was fair keeping in view the prevalent circumstances, the rent paid by the tenants in the vicinity and not a single evidence had been produced that the rent paid by the tenant-petitioner was more than the rent of the shops situated in the adjoining area, which was similar to the shop occupied by the tenant-petitioner---Constitutional petition was dismissed.

Eastern Automobiles Ltd. v. Pakistan Natural Shipping Corporation PLD 1993 Kar. 9 and Muhammad Afaq v. State Life Insurance Corporation and 2 others PLD 2008 Kar. 100 rel.

Munir Khan v. Government of Pakistan and others 2003 SCMR 833; Haji Muhammad Khan and others v. Islamic Republic of Pakistan 1992 SCMR 2439 and M. Cooper and others v. State Life Insurance Corporation 1994 SCMR 2115; 1999 CLC 205 distinguished.

Naeem Suleman for Petitioner.

S. Hassan Imam for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 16th May, 2013.

2013 Y L R 2190

[Sindh]

Before Salahuddin Panhwar, J

AMIR BUX MACHI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.867 of 2012, heard on 21st November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 201 & 311---Qatl-e-amd, causing disappearance of evidence or offence and tazir after waiver or compounding of right of qisas in qatl-e-amd---Bail, refusal of---Allegation against the accused was that he committed murder of his daughter and got drown her in the canal---Accused's name with specific role transpired in F.I.R. who with gunshot injury caused murder of his daughter on the pretext of Karo-Kari (honour killing)---Blood-stained earth was recovered---Eye witness though were police officials, yet there such status was not sufficient to consider their version with doubt specially when there was no ill-will of said witness who had categorically supported the version of F.I.R.---Available material prima facie linked the accused with the commission of offence involving in case of capital punishment---Accused had failed to bring the case, within Subsection 2 of S. 497 Cr. P. C---Accused charged with offence of capital punishment was not entitled to be released on bail unless he succeeded in bringing his case within the meaning of further inquiry---Bail was refused accordingly.

Imtiaz Ahmed Kolachi for Applicant.

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

Date of hearing: 21st December, 2012.

2013 Y L R 2205

[Sindh]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

MUHAMMAD MUNEER ADMANI---Petitioner

Versus

PROVINCE OF SINDH, through Secretary, Ministry of Home and 4 others---Respondents

Constitution Petition No.D-31 Miscel-laneous Nos. 664, 665, 128 and 129 of 2012, decided on 5th April, 2012.

Constitution of Pakistan---

----Art. 199--- Constitutional petition---Possession, restoration of---Grievance of petitioner was that respondent had dispossessed him from land in question and violated status quo order---Validity---At the time of order for maintaining status quo, it was the petitioner who was in possession of suit plot and had, subsequently and in violation of that order, been dispossessed by respondent---High Court directed Nazir of the court to take over possession of subject land at the earliest and within two weeks' time, by which time, the respondent would remove all his vehicles and/or any other objects/articles that he might have placed on the subject plot---Petition was disposed of accordingly.

2004 CLC 1875 ref.

Muhammad Ali Lakhani for Petitioner.

Yousuf Molvi for Respondent No.5.

Adnan Karim, Addl. A.G. for Respondent.

2013 Y L R 2215

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rahman Shaikh, JJ

AJIZ-UL-HASSAN and 3 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Co-operative and 4 others---Respondents

Constitutional Petition No.D-791 of 2012, decided on 18th April, 2013.

Sindh Cooperative Housing Authority Ordinance (V of 1982)---

----S. 14-A---Constitution of Pakistan, Art.199---Constitutional petition---Election of office-bearers of Employees Cooperative Housing Society---Notification declaring private respondent as member of such society alleged to be illegal due to absence of permission of Government in terms of S.14-A of Sindh Cooperative Housing Authority Ordinance, 1982---Petitioner's plea was that respondent as member of previous management of society was involved in misappropriation of funds, thus, he was not a valid candidate to contest such election---Validity---High Court through its order passed in previous constitutional petition had directed Authority to decide eligibility of respondent to contest election---Authority had placed on record two letters, whereby respondent had been allowed to contest such election conditionally, whereas through another letter had confirmed such conditional approval---Authority had duly complied with provision of S. 14-A of Sindh Co-operative Housing Authority Ordinance, 1982---Such election had been held under supervision of Additional Registrar of High Court pursuant to High Court order passed in previous constitutional petition---Petitioner's allegations were contrary to facts and record---High Court dismissed constitutional petition in circumstances.

Noor Ahmed Memon for Petitioner.

Mukhtar Ahmed Khanzada, State Counsel Ghulam Muhammad Mallah, Assistant Registrar (Technical) for Respondents Nos.3 and 4.

S. Jawaid I. Bukhari for Respondent No.5.

2013 Y L R 2222

[Sindh]

Before Muhammad Shafi Siddiqui and Syed Muhammad Farooq Shah, JJ

BASHEER AHMAD MAITLO ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-25 of 2002, decided on 19th March, 2013.

Pakistan Arms Ordinance (XX of 1965)---

----S.13(e)---Criminal Procedure Code (V of 1898), S.103---Possessing unlicensed arms---Appreciation of evidence---Prosecution witness, had not supported the prosecution---Neither memo of recovery of original weapon was exhibited by the prosecution, nor the only witness of alleged recovery was examined---Prosecution did not adduce evidence with regard to the fact as to who issued the gun from the office, to ascertain as to whether the same or any other weapon was found in the possession of accused---No source of information had been gathered by the prosecution to establish that accused possessed the country/Darra made rifle instead of the rifle delivered/handed over to him--- Recovered weapon had not been sealed at the spot---Police did not join respectable/ independent private person of the locality to witness the recovery, without any plausible explanation in that behalf---Recovery Officer, in circumstances, had violated the ingredients of S.103, Cr.P.C.---Accused had been acquitted in the main case registered against him under S.409, P.P.C.---Neither weapon was sealed at the spot, nor opinion of Forensic/ Ballistic expert was obtained or exhibited---Conviction of accused recorded by the Trial Court, was not sustainable, in circumstances---During custody with the Police, the alleged original rifle was recovered by the Investigating Officer under Mashirnama, but same had not been exhibited in the case---Prosecution having failed to prove its case against accused, beyond shadow of reasonable doubt, sentence awarded to him, was set aside and he was acquitted, in circumstances.

Asif Ali Abdul Razzak Soomro for Appellant.

Abdul Rasheed Soomro for the State.

Date of hearing: 12th March, 2013.

2013 Y L R 2233

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

AHMED KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.375 of 2013, decided on 30th April, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 34---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention---Bail, refusal of---Allegation against accused was that he presented a cheque for payment at a bank, which was drawn on the account of a lady---Said lady informed the bank that she had not issued the cheque---Defense plea of accused was that he was not a beneficiary and the cheque in question had been given to him by his friend to get the same encashed---Validity---Defense plea of accused could only be determined by Trial Court---Admittedly accused had presented the cheque in the bank, and he was arrested at the bank and cheque was recovered from him---Prima facie reasonable grounds existed to connect accused with the alleged offence---Bail application was dismissed accordingly.

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

----S. 497---Bail---Material available on record, assessment of---Scope---For deciding bail application court only had to see material available on record tentatively.

Mrs. Riaz Qayyum v. The State 2004 SCMR 1889 rel.

Kanwar Altaf Bhatti for Applicant.

Ms. Sheeraz Iqbal Chaudhri for the State.

2013 Y L R 2265

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

KHADIM HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Before Arrest Application No.1464 of 2011, decided on 15th May, 2013.

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

----S. 498---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), S. 420---Criminal misconduct and cheating---Ad interim pre-arrest bail, recalling of---Allegations against the accused were that he, while posted as Assistant Vice-President of the Bank with intent to cheat the complainants persuaded them to invest amount in the Bank for profit and accused received amount from the complainant and issued receipts on letterpad of the Bank under his signature and failed to fulfil the commitment and issued bogus cheques to the complainants of his own account of different dates which were dishonoured by the Bank on account of insufficient funds---Prima facie, there was sufficient material available on record to connect the accused to the commission of the offence---Bail before arrest was extraordinary relief which was to be granted in exceptional circumstances---Concession of the interim pre-arrest bail was granted to the accused but he did not join the investigation---For grant of pre-arrest bail, accused was required to satisfy the court regarding mala fide on the part of complainant and investigating agency---No mala fide or ulterior motive had been pointed out---Interim pre-arrest bail already granted to the accused was recalled by High Court, in circumstances.

Malik Aqeel v. The State 2001 SCMR 170 rel.

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

----S. 498---Pre-arrest bail---Scope---Conditions---Right of pre-arrest bail was limited to the exceptional and rare cases which were based on mala fides---In order to make out case of anticipatory bail, the conditions which were to be satisfied were that arrest was made with ulterior motives such as humiliation and unjustified harassment and that prosecution had motive to cause irreparable injury to reputation and liberty and police acted on political consideration/victimization.

Abdul Salam Memon for Applicant.

Dilawar Hussain, D.A.G. and Investigating Officer Zaighum Shakho, Assistant Director F.I.A. for Respondents.

2013 Y L R 2275

[Sindh]

Before Farooq Ali Channa, J

Mst. SARDAR JEHAN BEGUM---Petitioner

Versus

Dr. MUHAMMAD JAVAID and 2 others---Respondents

Constitutional Petition No.S-354 of 2007, decided on 15th May, 2013.

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

----S. 15--- Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment petition---Bona fide personal need of landlady---Landlady filed ejectment petition through her attorney on the ground of wilful default in payment of rent and requirement of tenement of bona fide use of her daughter---Non-appearance of landlady in support of her need---Ejectment petition and first appeal were dismissed---Landlady had not filed the ejecment application personally nor she had come forward to file affidavit in evidence and to put herself in witness box to justify her plea of requiring demise premises for personal bona fide use of her daughter nor daughter of the petitioner had been examined in support of said plea---Effect---Evidence of attorney of landlady was mere "hearsay evidence" which was not sufficient to prove the requirement of demise premises to be bona fide---Judgments of both the courts below were based upon appropriate discussions and appraisal of evidence and did not suffer from any infirmity---Constitutional petition was dismissed.

Muhammad Asif Khan v. Shaikh Israr 2006 SCMR 1872; Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCMR 1501 and Ghulam Nabi v. Noushad Ali and 2 others 2010 MLD 1543 ref.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment proceedings---Constitutional jurisdiction of High Court---Scope---Exercise of constitutional jurisdiction in such cases was very limited to interfere with the concurrent findings---Even if on the basis of same evidence another view of the matter was possible, that would not justify exercise of Constitutional jurisdiction---Invoking Constitutional jurisdiction under Sindh Rented Premises Ordinance, 1979 to be discouraged by High Court, otherwise the very purpose and object of expeditious disposal of such cases through the court of Rent Controller and providing right of only one appeal would be frustrated.

Syed Hassan Ali for Petitioner.

Zafar Alam Khan and Junaid Khan for Respondents.

Date of hearing: 7th May, 2013.

2013 Y L R 2294

[Sindh]

Before Maqbool Baqar, J

KASHIF ANWAR---Plaintiff

Versus

AGA KHAN UNIVERSITY---Defendant

Suit No.511 of 2007, decided on 15th August, 2012.

(a) Agha Khan University Disciplinary Procedure Rules---

----Agha Khan University Order (3 of 1983), Art.15---Specific Relief Act (I of 1877), Ss. 42, 54 & 56(j)---Suit for declaration, permanent injunction and damages---Order of Dean of University passed under Agha Khan University Disciplinary Procedure Rules expelling plaintiff from University on ground of mis-conduct---Non-availing of alternate remedy of appeal and review provided under such Rules against impugned order---Effect---Plaintiff had alleged impugned expulsion order to be without jurisdiction, mala fide, result of bias of University administration and violative of principles of natural justice and the Rules---Agha Khan University Dsciplinary Procedure Rules, for lacking statutory force would not bar remedy of a civil suit due to plaintiff's failure to avail alternate remedy provided thereunder---Existence of an alternate remedy under relevant statute would not curtail plaintiff's right to avail a civil remedy in a Court of law, unless same was otherwise barred---Present suit was maintainable in circumstances.

PIA v. Tanweer-ur-Rehman PLD 2010 SC 676; Federation v. Saeed Ahmed Khan PLD 1974 SC 151; Munir-ur-Din v. Secretary, D.C. University of Punjab 1991 MLD 2371; M. Anwar v. M. Yasin; 2003 MLD 1485; Ch. Shabbir Hussain v. Registrar, L.H.C. PLD 2004 SC 191; Afzal Motors v. Province 2009 CLD 798; Muhammad Shah Jehan v. Deputy Inspector PLD 1966 Dacca 325; The President v. J. Shaukat Ali; PLD 1971 SC 585; Federation of Pakistan v. M. Akram PLD 1989 SC 689; Chaudhry Azhar v. Punjab Public Service PLD 2004 SC 4 and University of Dacca v. Zakir Ahmed PLD 1965 SC 90 ref.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Abbasia Cooperative Bank and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 rel.

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

----S. 9---Existence of an alternate remedy under relevant statute against impugned order---Non-availing of such remedy by plaintiff---Effect---Such failure of plaintiff would not deprive him of his right to avail a civil remedy in a Court of law, unless same was otherwise barred.

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

----Ss. 39, 42, 54 & 56(j)---Suit for declaration and permanent injunction---Educational institution (private)---Expulsion of plaintiff---Maintainability of suit---Plaintiff, if having made out case, but not found entitled to relief of declaration or injunction, could be granted relief by cancelling such order under S.39 of Specific Relief Act, 1877---Principles.

Section 42 is not exhaustive, and even the private educational institutions, being subject to statutory regulations and being engaged in providing education, which indeed is a public duty, are obliged to perform such public duty/functions fairly and honestly, irrespective of any strict legal right vesting in the students and, therefore, if the case is made out, the plaintiff cannot be deprived of an appropriate relief either it be by way of a perpetual injunction under section 54 of the Specific Relief Act or by granting cancellation of the impugned expulsion order under section 39 of the Specific Relief Act, where it is found that the plaintiff is not entitled to a relief of declaration or injunction.

Muhammad Amin v. Mian Muhammad, PLD 1970 B.J. 5; Haji Noor Muhammad v. Ghulam Masih Gill, PLD 1965 W.P. (B.J.) 1; Basheshar Nath v. Municipal Committee, AIR 1940 Lah. 697 and Arif Majeed Malik and others v. Board of Governors, Karachi Grammar School 2004 CLC 1029 ref.

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

----O. XIII, Rr. 1 & 2---Provisions of O.XIII, Rr. 1 & 2, C.P.C.---Object stated.

The very purpose of Order XIII, Rules 1 & 2, C.P.C. is to ensure that no party suffers, and that if a particular piece of evidence is going to be used by one party, then the other party should have adequate notice to prepare refutation of that evidence.

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

----Arts. 2(e) & 78-A---Electronic Transactions Ordinance (LI of 2002), S. 2(i)(m)(p)(x)--- Tape recorded conversations/statements---Admissibility in evidence---Essential pre-conditions stated.

It is an axiomatic principle of evidentiary law stemming from the "best evidence rule" and the "rule against hearsay" that the documents can, ordinarily, be produced in evidence by their maker, and in case of tape-recordings, this principle has been interpreted to mean that tapes can be admitted in evidence, if they are produced by the person, who has recorded the tapes, and the said person is in a position to identify the voice on the tapes.

Even in the best circumstances, Courts have been cautious in admitting tape-record on the ground that it is too unreliable and too prone to tampering.

The essential prerequisites for the admissibility of tape-recording as evidence are that accuracy of the recording has to be proved, the voice recorded properly identified, the court must consider the genuineness of the tape before it is accepted, and must guard itself against all possible tampering and manufacturing, and should also look for independent corroboration and intrinsic evidence before it relies on the tape. The voice of the person alleged to be speaking must be duly identified by the matter of the record or by others who know it. Accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence direct or circumstantial has to be there so as to rule out possibilities of tampering with the record, eliminating erasing of the recorded tape. The court must be satisfied beyond reasonable that the record has not been tampered with. The voice must be compared with that of concerned person.

The University of Dacca and another v. Zakir Ahmed PLD 1965 SC 90; Vic-Chancellor, University of Punjab and 2 others v. Muhammad Zahur Nasir 1985 SCMR 802; Arif Majeed Malik and others v. Board of Governors Karachi Grammer School 2004 CLC 1029; Khawaja Muhammad Sharif v. Federation of Pakistan and 18 others PLD 1988 Lah 725 Arbab Akbar Adil v. Government of Sindh PLD 2005 Kar. 538; Dwordas Bhai v. Jammu and Kashmir AIR 1957 SC 164; Dheeraj Lal Gardhari Lal v. Commissioner of Income Tax AIR 1955 SC 271; Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1; Messrs Ahmad Karachi Halva Merchants and Ahmad Food Products v. The Commissioner of Income-Tax, South Zone, Karachi 1982 SCMR 489; Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. v. Federation of Pakistan and others PLD 1996 SC 77; Messrs M.K.B. Industries (Pvt.) Ltd. and others v. Chairman, Area Electricity Board, WAPDA, (Peshawar Electric Supply Corporation Ltd.) (PESCO) 2005 SCMR 699; State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. 2010 SCMR 121; Uzma Aziz v. Mst. Maryam Dorislions and another PLD 2006 Kar. 58; Arif Hashwani and 3 others v. Sardruddin Hashwani and 3 others PLD 2007 Kar. 448; Hakim Ali Bhatti v. Qazi Abdul Hameed 1986 CLC 1784; Sumatra Devi v. Calcutta Dying and Bleaching Works AIR 1976 Cal. 99; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra AIR 1975 SC 1788; Joginder Kaur v. Surjeet Singh AIR 1985 Punjab 128; Rehmat Shah Afridi v. The State PLD 2004 Lah. 829; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Z.B. Bukhari v. B.R. Mehra AIR 1975 SC 1788; S. Partap Singh v. State of Punjab AIR 1964 SC 72; I.A. Sharwani Government of Pakistan 1991 SCMR 1041; Zohra v. The Government of Sindh Health Department PLD 1996 Kar. 1; Muhammad Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107 and Muhammad Ilyas v. Islamia University, Bahawalpur 2000 MLD 228 rel.

Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. PLD 1976 SC 57; Hakim Ali Bhatti v. Qazi Abdul Hameed 1986 CLC 1784; Sumitra Devi v. Calcutta Dying and Bleaching Works AIR 1976 Calcutta 99; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra AIR 1975 SC 1788; Joginder Kaur v. Surjeet Singh AIR 1985 Punjab 129; Rehmat Shah Afridi v. The State PLD 2004 Lah. 829; Arif Hashwani v. Sadruddin Hashwani PLD 2007 Kar. 448 and Laxmandas v. Deep AIR 1974 Rajhistan 79 rel.

(f) Public functionaries---

----Order of an authority based on several grounds---Validity---Such order would fall to ground wholly, if any one of such grounds was found subsequently to be defective in law or facts.

Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1 and State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. 2010 SCMR 121 rel.

Salahuddin Ahmed for Plaintiff.

Makhdoom Ali Khan for Defendant.

Dates of hearing: 19th, 25th, 31st August, 23rd September, 14th October, 29th November, 2010, 25th April, 2nd May, 13th May, 30th May, 3rd June, 2011 and 7th August, 2012.

2013 Y L R 2342

[Sindh]

Before Farooq Ali Channa, J

ABDUL KHALID---Appellant

Versus

GHULAM SAGHIR---Respondent

First Rent Appeal No.46 of 2008, decided on 27th March, 2013.

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

----Ss. 17 & 24---Landlord and tenant, relationship of---Ejectment application filed by landlord was dismissed---Landlord had not put the tenant in possession of property, neither the tenant had paid rent to landlord, nor there was any tenancy agreement, the tenant was in possession of (evacuee) property at the time of issuance of Transfer Order to landlord by the Settlement authorities---Relationship of landlord and tenant did not exist between the parties in circumstances.

Syed Aijaz Hussain v. Azimullah 1984 CLC 2908 ref.

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

----Ss. 17 & 24---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30---Landlord and tenant, relationship of---Scope---Ejectment application filed by landlord was dismissed---Respondent was in possession of property at the time of issuance of Transfer Order of property in favour of the appellant by the Settlement authorities---Respondent, in circumstances, was not the owner of subject shop which he was occupying without any authority---Occupier would be deemed to be the tenant of owner of property---Mere transfer of property under Transfer Deed by the Settlement authorities in terms of S.30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 shall not create/ establish relationship of landlord and tenant unless it was proved that the occupier of property had been the tenant of Custodian of Evacuee Property before issuance of Permanent Transfer Deed by Settlement authorities to the transferee.

Mst. Kaniz Fatima and 8 others v. Mst. Zubaida Khatoon 1995 MLD 870 and Fakhruddin Khan Syed and others v. Mst. Surriya Sultana and others 2005 YLR 349 distinguished.

Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925 rel.

Ayaz Ahmed Ansari for Appellant.

Muhammad Sher Awan for Respondent.

Dates of hearing: 12th February, 5th and 27th March, 2013.

2013 Y L R 2372

[Sindh]

Before Sadiq Hussain Bhatti, J

AHMED through L.Rs. and another---Applicants

Versus

PROVINCE OF SINDH, through Deputy Commissioner Hyderabad and 3 others---Respondents

Civil Revision Nos.69 and 260 of 2010, decided on 29th April, 2013.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration---Minor omission in pleadings---Effect---Land was transferred through gift deed by father in favour of his two sons---Third son of the donor made interpolation in revenue record by inserting his name as one of the donees of gift deed---Original two donees filed suit which was decreed in their favour and upheld upto the Supreme Court---Defendant filed application praying that possession of land handed over to plaintiffs was not mentioned in the plaint, whereof the suit was decreed---Application of the defendant was allowed and trial Court directed to hand over back the property to defendant---Application for amendment of pleadings filed by plaintiff was dismissed---Validity---Decree passed in suit was executed and the entire land owned by father of plaintiff's which was gifted by him in favour of plaintiffs was restored---After lapse of quite some time the defendant moved an application for restoration of some piece of land to him as the same were not mentioned in the plaint in terms whereof the suit was decreed---Trial Court had already held that no portion of land owned by donor father was ever gifted to defendant---Plaintiffs were being deprived of their valuable property for a minor omission and the same was being given to person who had already been declared as not entitled to the same---Minor omission in the plaint would not help the defendant as he had made interpolation in record---Defendant had not shown any right or title to the donated land, therefore he was not entitled to get possession of a piece of land to which he was not entitled---Application by the defendant before Trial Court was dismissed.

Saeeduddin Siddiqui for Applicants.

Ch. Bashir Ahmed, A.A.-G. for the State.

Abdul Rehman Shaikh for Respondent No.4.

Date of hearing: 18th April, 2013.

2012 Y L R 2420

[Sindh]

Before Aftab Ahmed Gorar, J

SHAHROZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-400 of 2013, decided on 6th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.353, 324, 468, 472 & 34---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd, forgery for purpose of cheating, making or possessing counterfeit seal etc., common intention---Bail, grant of---Further inquiry---Police encounter---During exchange of firing no one had received injuries from either side, or even no bullet hit the Police Van, or the car---Mob of people had gathered during course of encounter but, Police had failed to associate any independent witness of the vicinity to act as Mashir which was a violation of mandatory provisions of S.103, Cr.P.C.---Accused was arrested from the car and his three companions made their escape good---Section 468, P.P.C. was a non-cognizable offence---Investigating Officer had failed to confirm from the Excise Department, whether accused persons had used forged number plate over the car---No F.I.R. was registered against the robbery or snatching of car, or theft of said car---No empty was recovered from the place of wardat---Accused having made out a case of further enquiry under S.497(2), Cr.P.C. was admitted to post-arrest bail, in circumstances.

Shahid Ali for Applicant.

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

Date of hearing: 3rd May, 2013.

2013 Y L R 2428

[Sindh]

Before Aftab Ahmed Gorar, J

AMIN IQBAL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S.-611 and M.A. No.5549 of 2012, decided on 29th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Ad interim pre-arrest bail---Application for confirmation of---Three cheques of different dates were issued by accused in favour of the complainant, which were dishonoured on its presentation by his Banker---Accused had not denied the issuance of bogus cheques---Accused seemed to be in the habit of issuing bogus cheques, which on presentation remained dishonoured---Accused had failed to establish on record, the mala fide on the part of prosecution---Sufficient material being available on the record to connect accused with the alleged offence, accused did not deserve for the confirmation of ad interim pre-arrest bail earlier granted to him.

2007 YLR 1495; 2009 YLR 2178; 2005 PCr.LJ 1173(sic) and 2009 SCMR 1488 distinguished.

2013 SCMR 51; 2009 SCMR 174; 2008 YLR 947; 2011 MLD 621; Sohail Ahmed Babar v. The State 2008 SCMR 966; 2010 SCMR 806 and Riaz Ahmed v. The State 2009 SCMR 725 ref.

Jamil Ahmed Virk and Aamir Jamil Virk for Applicant.

Muhammad Akbar Khan for the Complainant.

Zahoor Shah, A.P.-G. for the State.

2013 Y L R 2451

[Sindh]

Before Aqeel Ahmed Abbasi and Sadiq Hussain Bhatti, JJ

MUHAMMAD ABID and another---Appellants

Versus

The STATE---Respondent

Criminal Special A.T. Appeal No.D-24 of 2013, decided on 30th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 161 & 162---Qanun-e-Shahadat (10 of 1984), Arts. 150 & 151---Act of terrorism kidnapping or abduction for extorting property, wrongful confinement, extortion, rioting and unlawful assembly---Appreciation of evidence---Statement of witness recorded under S.161, Cr.P.C. could not be produced in the court---Prosecutor could declare his own witness as hostile but to cross-examine such witness he had to seek permission from the court---Cross-examination by prosecutor on the basis of S. 161, Cr.P.C. statement could not be acted upon and could safely be ignored---Prosecution could not confront its own witnesses which was not signed by the witness, or defence witnesses with their statement recorded under S.161, Cr.P.C.---Statement under S.161, Cr.P.C. could not be used in favour of prosecution---Accused could use previous statement of prosecution witness---Statement of witnesses recorded under S.161, Cr.P.C. could not be treated as substantive evidence and same could be used under Art. 145 of Qanun-e-Shahadat, 1984---Witnesses in the present cases had not supported the prosecution case---Conviction and sentence were set aside.

PLD 1957 Lah. 519 and PLD 1965 SC 188 rel.

Syed Mehmod Alam Rizvi for Appellants.

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

Date of hearing: 30th May, 2013.

2013 Y L R 2487

[Sindh]

Before Habib-ur-Rehman Sheikh, J

ALLAH DITTA---Appellant

Versus

MUHAMMAD YOUNIS and 3 others---Respondents

Criminal Acquittal Appeal No.167 of 2011 and M.A. No.4916 of 2012, decided on 20th February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.417 (2A) & 561-A---Appeal against acquittal---Dismissal for non-prosecution---Appeal filed by complainant was dismissed for non-prosecution and application was filed for its restoration---Validity---Appeal after admission was to be decided on merits but when complainant was unnecessarily dragging accused by filing appeal and habitual to remain absent deliberately not attending Court on dates of hearing, even though after dismissal of appeal he filed restoration application after about four months without showing any cogent reason, again remained absent and such application was also dismissed and again he repeated restoration application without any proof, as he was ill on the date of hearing but he did not produce any prescription of doctor or failed to mention about reason of absence of complainant, then the Court could see attitude and conduct of complainant for its relief against double innocent persons who were acquitted by Trial Court---High Court declined to restore appeal against acquittal which had been dismissed for non-prosecution---Application was dismissed in circumstances.

Karam Chand Kingrani for Appellant.

Ch. Muhammad Aslam Javid for Respondents Nos. 1 and 2.

Iftikhar Gohar Ali for Respondent No.3.

Zahoor Shah, A.P.-G. for the State.

2013 Y L R 2526

[Sindh]

Before Aftab Ahmed Gorar, J

RIZWAN NAJMI---Petitioner

Versus

NUSRATULLAH BHOREY KHAN through Attorney and 2 others---Respondents

Constitutional Petition No.S-690 of 2010, decided on 17th May, 2013.

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

----S. 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant---Default in payment of rent and plea of bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Ejectment petition was accepted concurrently---Validity---Where the tenant took up a position that he had purchased the property even then he had to vacate the same and file a suit for specific performance whereafter he would be given access to the premises in question---Sale agreement did not create title/ownership---Tenant denying the relationship of landlord and tenant and claiming to have purchased the premises much prior to the period of alleged default then he was not expected to pay the rent---Landlord having appeared in the witness box and made statement regarding his personal bona fide need, requirement of law on his part stood discharged---Sole testimony of landlord was sufficient to establish his personal bona fide need---Constitutional petition was dismissed.

Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012; Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877; 2010 SCMR 1925; 2001 SCMR 1197; 2008 CLC 446; 2003 SCMR 1398; 1997 SCMR 1062 and 1992 SCMR 1296 rel.

(b) Constitution of Pakistan---

----Art.199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Ejectment of tenant---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of the High Court in such matters was limited and confined to ascertain as to whether the Appellate Court had not flouted the provisions of law---Constitutional juris-diction was discretionary which was meant to foster justice and to remedy the wrong.

Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 and 2010 SCMR 1025 rel.

Muhammad Ali Waris Lari for Petitioner.

Syed Shmaim Ahmed Riazi for Respondent No.1.

Date of hearing: 15th April, 2013.

2013 Y L R 2534

[Sindh]

Before Aqeel Ahmed Abbasi, J

ABDUL RAHIM---Applicant

Versus

The STATE---Respondent

Bail Application No.55 of 2013, decided on 1st June, 2013.

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---Case of cross-version F.I.Rs.---Two F.I.Rs. for the same incident had been registered on the same date by both the accused and complainant party, wherein two different versions had been stated---Complainant side had already been granted bail for the F.I.R. registered against them on the grounds that it was a case of counter versions of the same incident, and it was yet to be determined as to which party was aggressor and which party had been aggressed upon---No specific role had been assigned to accused in the F.I.R. nor he committed any overt act to cause any injury to the deceased, who reportedly died after receiving firearm injuries caused by co-accused---No recovery whatsoever had been effected from accused---Accused himself received firearm injuries during the alleged incident---Regarding common intention of accused to commit the offence, the same could be determined at trial keeping in view material available on record and evidence produced before the Trial Court---Present case was one of further inquiry---Accused was granted bail in circumstances.

Naimat Khan v. The State 2010 PCr.LJ 964; Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 and Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310 rel.

Farhad Khan for Applicant.

Ali Gohar Masroof for the Complainant.

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

Dates of hearing: 18th, 20th and 25th May, 2013.

2013 Y L R 2541

[Sindh]

Before Aqeel Ahmed Abbasi, J

Messrs FORD RHODS SIDAT HYDER AND COMPANY through Chairman---Petitioner

Versus

JAMES FINLAY LTD. and another---Respondents

Constitutional Petition No.1237 of 2010, decided on 15th July, 2013.

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

----S.8---Constitution of Pakistan, Art.199--Constitutional petition---Fair rent, fixation of---Concurrent findings of fact by Courts below---Rent Controller, on the application of landlord, in exercise of powers under S.8 of Sindh Rented Premises Ordinance, 1979, enhanced the rent from Rs.3.01 to Rs. 40 per square foot per month but Lower Appellate Court reduced fair rent to Rs.27 per square foot per month from the date of institution of rent application under S. 8(1) of Sindh Rented Premises Ordinance, 1979, till existence of tenancy---Validity---Rent Controller had jurisdiction to fix fair rent, whereas factors for fixation of fair rent were duly proved by landlord, which were also duly considered by Rent Controller in his order---While approving decision of Rent Controller, Lower Appellate Court reduced the amount of fair rent and substantial relief had already been granted to tenant---Lower Appellate Court kept in view the four factors required to be taken into consideration and by applying lower rate of rent of similar premises situated in similar building reduced the amount of fair rent from Rs.40 per square foot per month to Rs.27 per square foot per month---No error, illegality or arbitrariness on the part of courts below was pointed out which could require interference of High Court in its Constitutional jurisdiction---Concurrent findings recorded by courts below in rent matters could not be disturbed by High Court in its Constitutional jurisdiction unless any grave illegality, jurisdictional error or perverse finding on facts was pointed out by tenant---Petition was dismissed in circumstances.

Fazal Hanan v. Mukarram Jan 2003 CLC 397; Hafiz Mansoor Ahmed and others v. Messrs Rajput Films Corporation 1998 CLC 963; Volkat (Pakistan) Ltd., Karachi v. Interavia Pakistan Ltd., Karachi 2001 SCMR 671; Qazi Majid Ali v. State Life Insurance Corporation of Pakistan SBLR 2011 Sindh 461; Messrs Mermaid Constructions (Pvt.) Ltd. v. State Life Insurance Corporation PLD 1999 Kar. 322; Nighat Riaz v. Manzoor Hussain 1985 MLD 1533; Mst. Fatima and 3 others v. Abdul Jabbar 1987 MLD 321; Unreported judgment passed in F.R.A. No.610/1998 page 10 ref.

Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation 2001 SCMR 1103; Shahid Ahmed alias Shahid Mukhtar and 9 others v. Mst. Rasheeda Khatoon PLD 1996 Kar. 494; Sultan Ali v. Mst. Khatija Bai 1995 CLC 1441 and Messrs Abdul Majeed Chawla and Sons v. Anwar Yahya 1990 MLD 1711 rel.

Fazle Rabbi for Petitioner.

Mian Mushtaq Ahmed for Respondent.

Date of hearing: 12th March, 2013.

2013 Y L R 2560

[Sindh]

Before Syed Muhammad Farooq Shah, J

AYAZ PATHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-73 of 2013, decided on 28th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 & 29---Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences---Bail, refusal of---Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him---Chemical Examiner's report regarding recovered charas was found positive---Substance recovered from accused, was proved to be charas---Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas---Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics---Defence plea that the narcotic was not recovered from possession of accused, was not true---Alleged offence was heinous one falling within prohibited clause of S.497, Cr.P.C.---Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997---Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics---Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide---Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage---Under provisions of S.29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had committed offence, unless otherwise proved---Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him---Bail application having no merits for consideration, was dismissed, in circumstances.

Muhammad Khan v. The State 2008 SCMR 1616 rel.

Saleh alias Salo v. The State 2012 PCr.LJ 595 distinguished.

Ghulam Shabbir Dayo for Applicant.

Ubedullah, S.P.P. for the State.

Date of hearing: 21st June, 2013.

2013 Y L R 2573

[Sindh]

Before Irfan Saadat Khan, J

SULMAN HAIDER---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.568 of 2013, decided on 10th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.161 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Taking illegal gratification by public servant---Bail, refusal of---Accused was apprehended red-handed from the spot by a team comprising 3 to 4 persons---Tainted currency was recovered from the possession of accused, which aspect had not been denied by counsel for accused---Accused had taken the amount from the complainant, and the incident was seen by the witnesses including the Judicial Magistrate---No doubt, the name of accused was not mentioned in the F.I.R., but a specific role had been assigned to him, which, prima facie, had connected him in the commission of crime---When interrogated about the tainted money, no plausible explanation could be furnished by accused for accepting the money---Deeper appreciation of evidence was not permissible, and the court only had to make a tentative assessment---No case for interference was made out---Accused was not entitled to be given the benefit of bail, his bail application was dismissed, in circumstances.

Aurangzeb v. The State 1999 PCr.LJ 293; Noor Muhammad v. The State PLD 1963 SC 38; Sajid Naveed v. The State 1999 MLD 156; Islam Pervez v. The State 2004 PCr.LJ 1336; Manzoor Hussain Shah v. The State 1978 PCr.LJ 885; Abdul Hamid v. The State 1984 PCr.LJ 2774; Jangsher v. The State 1986 PCr.LJ 473; Faizullah Khan v. The State 1989 PCr.LJ 2217; Umer Din v. The State 1999 PCr.LJ 1339; Muhammad Hasan v. The State 2010 PCr.LJ 572 and Muhammad Ibrahim v. The State 1993 PCr.LJ 80 distinguished.

Syed Ehsan Raza for Applicant.

Zahoor Shah, A.P.-G. for the State.

Date of hearing: 6th June, 2013.

2013 Y L R 2581

[Sindh]

Before Irfan Saadat Khan, J

Mst. YASMIN BEGUM and 4 others---Applicants

Versus

FAZAL-UR-REHMAN and 13 others---Respondents

Revision Application No.57 of 2009, decided on 14th June, 2013.

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

----S. 39---Limitation Act (IX of 1908), Art.91---Suit for cancellation of gift deed--Limitation---Suit property was mutated in year 1982 on basis of gift deed and PT-I Form was issued in defendant's name---Plaintiff filed suit in year 2006---Maintainability---Record showed that defendant applied for letter of administration on 25-1-2005, which was issued to him on 29-4-2005---Plaintiff made application for revocation of such letter on 4-10-2006---Plaintiff had filed suit after 24 years without explaining such delay---Suit for being time-barred was dismissed in circumstances.

Bahadur Khan v. Mst.Naimat Khatoon and others 1987 SCMR 1492; Allah Buksh v. Mst.Bakht Bhari and others 1990 CLC (Lahore) 2027; Mst.Salama Begum v. Ulfat Rasool and others 1992 CLC 582; Manzoor Hussain v. Raja Shah and others 1992 CLC (Punjab) 602; Ghulam Muhammad v. Mian Muhammad and others 2007 SCMR 231; Wali Khan v. Waheed Ghani 2013 MLD (Peshawar) 360; Idrees v. Muhammad Parvez 2010 SCMR 05; Registrar, High Court of Balochistan v. Abdul Majeed and others PLD 2013 Bal. 26; Mst.Shumal Begum v. Gulzari Begum and others 1994 SCMR 818; Kshitish Chandra Bose v. Commissioner of Ranchi 1982 PSC 641; Attaullah and 6 others v. Sanaullah and 5 others PLD 2009 Karachi 38; Feroz Hussain and 2 others v. Executive Engineer, Mitharao Division, Mirpurkhas and 4 others 2009 CLC 529; Syed Khadim Ali Shah v. S.M. Zia and 2 others PLD 1981 Kar. 604; Aysha Woolen Mills v. Messrs Industrial Exports 2009 YLR 786; Syed Ghulam Nabi and others v. Officer on Special Duty Federal Land Commission and others 1982 CLC 1472; Yaqoob v. Mst. Zammarud Bano 1986 MLD 1398; Mahmood Khan v. Muhammad Hasan and 7 others 1991 SCMR 1566; Jevan and others v. Federation of Pakistan and others 1994 SCMR 826; Nazar Gul v. Islam and others 1998 SCMR 1223 and Dr. Shabbir Ahmed and 4 others v. Abdul Haleem and others 2000 SCMR 1287 ref.

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

----O. XLI, R. 23---Remand of case by Appellate Court---Scope---Appellate Court, if thought fit, could pass necessary order of remand---Remand would not be warranted in case of a matter disposable by Appellate Court itself.

Arshad Amin v. Messrs Swiss Bakery and another 1993 SCMR 216 rel.

Muhammad Yaseen Azad for Applicants.

Naveed Ahmed for Respondent No.1.

Abdul Mateen Khan for Respondents Nos. 2 to 14.

Dates of hearing: 7th and 24th May, 2013.

2013 Y L R 2600

[Sindh]

Before Syed Muhammad Farooq Shah, J

RUSTAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-268 of 2009, decided on 19th December, 2012.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Case of unseen evidence---Conviction based on evidence of hostile witnesses---Complainant not supporting contents of F.I.R.--- Effect--- Accused allegedly committed rape with the deceased-victim, who committed suicide after the incident---Deceased-victim allegedly disclosed name of accused to her father/complainant before committing suicide---During trial all witnesses were declared hostile as they did not identify the accused in Court and stated that they could not say whether accused was the same person, whose name had been disclosed by the deceased-victim---Trial Court convicted and sentenced accused for committing rape on the basis of evidence of hostile witnesses by observing that where evidence of such witnesses supported the prosecution case on material points, it was permissible to rely upon the same; that incident had taken place as alleged but the complainant party tried to save the accused after a compromise between both sides, and that complainant had admitted in his cross-examination that deceased-victim disclosed name of accused before committing suicide---Validity---Present case was one of unseen evidence---All prosecution witnesses had been declared hostile---Complainant had filed an application before the Trial Court, stating therein that he did not want to proceed with the matter, but the Trial Court still convicted the accused on basis of evidence of hostile witnesses---Complainant gave name of accused in the F.I.R., but during his deposition he stated that he saw a person with a muffled face and he gave name of accused in doubt---Statement of victim could not be recorded due to her suicide, hence ocular account had no evidentiary value---Prosecution did not bring sufficient corroboratory evidence on record to justify conviction of accused---Ocular evidence was in conflict with circumstantial evidence---Judgment of Trial Court was a result of misreading and non-reading of evidence, as all witnesses did not support the prosecution including the complainant---Appeal was allowed and conviction and sentence awarded to accused was set aside.

(b) Criminal trial---

----Benefit of doubt---Scope---Even slightest doubt favouring accused was sufficient for his acquittal.

(c) Criminal trial---

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

(d) Criminal trial---

----Conviction---Standard of proof---Conviction could not be recorded merely on probabilities and presumptions---Prosecution had to prove its case beyond any shadow of doubt.

Syed Muhammad Waseem Shah for Appellant.

Syed Madad Ali Shah for the Complainant.

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

2013 Y L R 2608

[Sindh]

Before Syed Muhammad Farooq Shah, J

QUTUB-UD-DIN---Applicant

Versus

The STATE and 7 others---Respondents

Criminal Miscellaneous Application No.180 and M.As. 4867 and 4582 of 2012, decided on 30th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 154---Application for transfer of investigation, dismissal of---Registration of F.I.R. with ulterior motives---Effect---Applicant in connivance with his son usurped millions from people after issuing cheques, which got dishonoured on presentation---Applicant lodged present F.I.R. against his own son alleging that his son looted him and got executed his signature on a cheque and stamp paper---Judicial Magistrate after agreeing with the police report under S.173, Cr.P.C. approved final report as 'B' class on the ground that complainant had registered the present F.I.R. against his son with mala fide intentions---Applicant sought transfer of investigation of the present F.I.R. on the basis that police officer who was investigating the case, had already registered counter blast cases against him, against his son and other family members---Validity---Complainant in connivance with his son usurped millions after issuing cheques, which got dishonoured on presentation---Statements of effectees had been recorded---F.I.Rs. were registered against the complainant and his son---Complainant had implicated his son in the present case with ulterior motives to usurp money of innocent persons tactfully---Such fact was also evident from the material available on record---Applicant's grievance or dissatisfaction with the investigation could be redressed by the procedure prescribed under law but an application in the shape of Criminal Miscellaneous Application was not tenable in law---Application was dismissed in circum-stances.

Muhammad Nazir Tanoli for Applicant.

Saleem Akhtar, Additional Prosecutor General, Sindh, Inspector Sohail Afzal from SSP Office, SIP Raja Tariq, SIP Muhammad Imtiaz of Police Station Shahra-e-Noor Jehan and Inspector Mehmood Khan Crime Cell, Karachi-West for Respondents.

Date of hearing: 24th July, 2012.

2013 Y L R 2614

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ZAHID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-499 and M.As. 2684 and 2685 of 2013, decided on 22nd May, 2013.

Criminal Procedure Code (V of 1898)---

---Ss. 497(2) & 103---Penal Code (XLV of 1860), Ss. 353, 324 & 34---Assault or use of criminal force to deter a public servant from discharge of his duty, attempt to commit qatl-e-amd and common intention---Bail, grant of---Further inquiry---No one from either party had received any injury although allegedly there was firing in between the Police and the assailants, even the police van did not receive a single shot---Provisions of S.103, Cr.P.C. which were mandatory were violated---Accused, however, had made out a fit case of further inquiry---Bail was granted in circumstances.

Mushtaq Ahmed Chandio for Applicant.

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

2013 Y L R 2657

[Sindh]

Before Aqeel Ahmed Abbasi and Habibur Rehman Shaikh, JJ

ADAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-12 and M.A. No.1153 of 2013, decided on 23rd May, 2013.

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

----Ss.6 & 7(i)---Act of terrorism---Appreciation of evidence---Exonerating by complainant---Benefit of doubt---Complainant had filed suit for Khula and it was alleged that on the day of occurrence her husband and others attempted on complainant to murder her in court premises---Trial Court convicted accused under S. 7(i) of Anti-Terrorism Act, 1997, and sentenced him to five years imprisonment while husband of complainant and another co-accused were acquitted---Validity---Prosecution could not establish its case against accused without reasonable doubt---Contradictory evidence of prosecution witnesses and deposition of complainant exonerating accused from alleged crime had made prosecution case doubtful, benefit of which was required to be extended to accused---Trial Court wrongfully declined benefit of doubt to accused---While awarding sentence to accused under S. 7(i) of Anti-Terrorism Act, 1997, Trial Court did not record any finding to the effect that alleged act of accused was an act of terrorism which created terror and sense of insecurity in public-at-large---Judgment passed by Trial Court was silent about application of S. 6 of Anti-Terrorism Act, 1997, whereas nothing had been observed by Trial Court about gravity of alleged offence---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge--Appeal was allowed in circumstances.

Muhammad Sachal Awan for Appellant.

Shahid Ahmed Shaikh, A.P.-G. for Respondent.

Alleged victim Mst. Benazir is in attendance.

Date of hearing: 23d May, 2013.

2013 Y L R 2680

[Sindh]

Before Sadiq Hussain Bhatti, J

KHAN MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-21 of 2004, decided on 27th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 392 & 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Robbery, dishonestly receiving stolen property, Haraabah---Appreciation of evidence---Benefit of doubt---Victim/complainant, who was star witness in the case and was robbed at gun point, lodged F.I.R. and disclosed name of one robber---During the trial complainant admitted the incident, but stated that accused shown to him in the court was not the same---Investigating Officer, instead of procuring private witnesses, preferred his subordinates, though the private persons were available and there was a hotel near the place of alleged arrest and recovery---Trial Court had found that robbery was not proved and only charge of receiving and retaining of stolen property was proved against the accused---Case against accused having not been proved, he was acquitted by giving benefit of doubt, in circumstances.

Dost Muhammad's case 1986 SCMR 462 rel.

Nisar Ahmed Durani for Appellant.

Syed Meeral Shah, D.P.-G. for Respondent.

Date of hearing: 15th May, 2013.

2013 Y L R 2705

[Sindh]

Before Sadiq Hussain Bhatti, J

Dr. SHAHID HUSSAIN KHAN and 2 others---Petitioners

Versus

MAQSOOD AHMED through L.Rs. and 2 others---Respondents

Constitutional Petition No.S-717 of 2011, decided on 28th May, 2013.

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

----Ss. 8 & 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment proceedings---Tenant failed to pay enhancement of rent as required by the provisions of Sindh Rented Premises Ordinance, 1979---Fair Rent, fixation of---Validity---Fixation of fair rent was not automatic but was to be fixed by Rent Controller on an application by the landlord or the tenant, on the basis of factors mentioned in clauses (a) to (d) of S.8 of Sindh Rented Premises Ordinance, 1979---In the present case, neither any application was filed by the landlord for fixation of fair rent nor any order had been passed by the Rent Controller therefor---No default in payment of rent was committed by the tenant.

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

----S. 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment proceedings---Changing stance by landlord---Effect---Ejectment order passed by Trial Court was reversed by Appellate Court---Validity---Landlord in earlier round of litigation sought eviction of tenant on the ground that he needed property for construction of house on the first floor but in the present case the stance was changed and it was stated that a medical consultancy centre would be built on the shops---Validity---First case was filed on the ground of personal bona fide use of shops, however, in the second round of litigation, the stance had been changed and the shops were sought for re-construction---Grounds of personal need and reconstruction of house taken by landlord were contradictory to each other---Judgment of Appellate Court reversing the ejectment order of Trial Court was upheld.

Abdul Ghaffar through L.Rs. v. Ghulam Muhammad and others 2005 YLR 313 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Ejectment proceedings---Conflict of judgment between the Trial Court and Appellate Court---Rent Controller decided the issue in favour of the landlord while Appellate Court reversed the same and decided in favour of tenant---Judgment of Appellate Court would be preferred unless conclusions drawn by Appellate Court were against the record or suffered from non-reading or misreading of evidence---Effect---High Court while exercising constitutional jurisdiction could not sit as a court of appeal on question of fact and could not in exercise of its constitutional jurisdiction interfere merely on the ground that a different view on the basis of same evidence was possible---Judgment of Appellate Court did not suffer from any illegality, irregularity, non-reading or mis-reading of the evidence on record---Constitutional petition was dismissed.

Abdul Razzak v. Ihsan Sons Limited and others 1992 SCMR 505 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Personal bona fide need of landlord---Ejectment order passed by the Rent Controller was set aside by Appellate Court while holding that landlord had failed to prove personal need---Contention was that statement of landlord on oath was enough to prove that requirement of the landlord was bona fide---Validity---Landlords had sold their ancestral house at place "N", they were permanently residing at place "K" for the last many years---Landlords had not been able to show that they would move to place "N" in near future when the property in question was located---Constitutional petition was dismissed.

Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178 distinguished.

Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117; Muhammad Ashraf through Attorney v. Mrs. Azra Muqeem and others 2010 CLC 1788; Fateh Ali v. Trustees of Haji Sir Abdullah Haroon Wakf No.2, Karachi through General Attorney PLD 1996 Karachi 225; Abdul Mehdi v. Mrs. Abdul Hakim 1990 MLD 2182; Muhammad Akram v. Ist ADJ, Nawabshah and others 2008 MLD 1184; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and others PLD 2001 SC 415; Syed Mazhar Hussain Shah through LRs v. Member, Board of Revenue, Punjab 2006 SCMR 959 and State Life Insurance Corporation and others v. Jaffar Hussain and others PLD 2009 SC 194 ref.

Jagdesh R. Mullan for Petitioners.

Raja Khan for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2013 Y L R 2716

[Sindh]

Before Aqeel Ahmed Abbasi, J

YASMIN GUL KHANANI |and another---Applicants

Versus

TARIQ MEHMOOD and 2 others---Respondents

Criminal Miscellaneous No.308 of 2011, decided on 18th July, 2013.

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

----S.561-A---Quashing of F I.R.---No bar imposed on filing application under section 561-A, Cr.P.C. seeking quashing of F.I.R. and proceedings emanating therefrom at any stage, provided aggrieved party was able to demonstrate by furnishing sufficient material that entire proceedings were false, frivolous, vexatious and had been initiated to abuse process of law and if such proceedings were not quashed, gross injustice, harm and injury might be caused to accused persons nominated therein.

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

----Ss. 249-A, 265-K & 561-A---Constitution of Pakistan, Art.203---Inherent powers of High Court---Acquittal of accused---Principles---Such powers under S. 561-A. Cr.P.C. are to be exercised in exceptional cases---Application under S. 561-A, Cr.P.C. may not be treated as alternate of appeal or revision---Powers conferred on High Court under S. 561-A, Cr.P.C. are very wide and can be exercised at any stage of proceedings---High Court, under Art. 203 of the Constitution is responsible for entire administration of justice and is charged with responsibility of supervising all Courts subordinate to it---High Court is competent to take all appropriate measures for preventing maladministration of justice and abuse of process of law in appropriate cases---When case is of no evidence or registration of case is proved to be mala fide or case is purely of civil nature or when there is unexceptional delay in disposal of case causing deplorable mental, physical and financial torture to the person proceeded against, High Court is competent to take cognizance of the matter and by exercising inherent powers under S.561-A, Cr.P.C. to correct a wrong by ordering quashment of F.I.R. and proceedings emanating therefrom---Powers vested in High Court under S.561-A, Cr.P.C. are co-extensive with the powers vested in Trial Court under Ss. 249-A and 265-K, Cr.P.C., and in appropriate cases, can be invoked directly without resorting to decision by Trial Court under Ss. 249-A and 265-K, Cr.P.C. to avoid abuse of process of Court---In appropriate cases, an aggrieved person can seek redressal of his grievance by filing criminal proceedings and civil proceedings simultaneously if provided under relevant statute---Where dispute is purely of civil nature and element of mens rea and criminal intention is missing, a party cannot be allowed to be dragged in criminal proceedings by converting a civil dispute into criminal dispute.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Muhammad Khalid Mukhtar v. The State through Deputy Director, FIA (CBA), Lahore PLD 1997 SC 275; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Maqbool Rehman v. The State and others 2002 SCMR 1076; Mian Munir Ahmad v. The State 1985 SCMR 257; Raees Ahmad Khan v. The State 1991 PCr.LJ 1381; Ch. Pervez Ellahi v. The Federation of Pakistan 1995 MLD 615 and Muhammad Hassan v. Manzoor Ahmad and another 1991 PCr.LJ 2177 rel.

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

----S.448---Criminal Procedure Code (V of 1898), S.561-A---House trespass---Quashing of proceedings---Complainant, locus standi of---Civil proceedings, pendency of---Complainant alleged that accused persons had trespassed in apartments in question and forcibly took over the possession---Accused sought quashing of criminal proceedings on the plea that complainant had no locus standi to get case registered against them and there was interim injunction issued by Civil Court in their favour---Validity---Registration of F.I.R. by complainant, who had no locus standi or lawful authority to lodge F.I.R. was based on mala fides, whereas ingredients of criminal trespass even on admitted facts and in view of allegations as contained in F.I.R. were lacking---Dispute was purely of civil nature and suit filed by accused persons in respect of subject apartments was also pending wherein restraining orders with regard to possession of accused were operative---No evidence or material was produced by complainant which could connect accused with alleged offence of criminal trespass---No useful purpose would be served if proceedings initiated pursuant to registration of F.I.R. were allowed to be continued; on the contrary the same was likely to cause gross injustice, harm and injury to accused and also to frustrate lawfully instituted civil proceedings filed by accused through civil suit relating to same subject controversy---High Court in exercise of inherent powers quashed F.I.R., charge sheet and all subsequent proceedings pursuant thereto pending before Trial Court---Application was allowed in circumstances.

Shah Nawaz and 2 others v. Birjlal and others 2011 MLD 956; Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878; Muhammad Amin v. Master Bashir Ahmed and others 2006 SCMR 969; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Muhammad Ashraf v. Faiz Ali and 11 others PLD 1975 SC 556; Abdul Razzaq v. S.H.O. and others 2008 PCr.LJ 812; Abdul Rashid and another v. The State 1983 PCr.LJ 42; Senator Asif Ali Zardari and another v. The State PLD 2008 Kar. 381;Khursheed Ahmed v. The State 2011 YLR 2368; Muhammad Aslam Baig v. The State 1993 MLD 567; Quaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 ref.

Khawaja Shamsul Islam for Applicants.

Khawaja Naveed Ahmed for Respondent No.1.

Saleem Akhtar Buriro, A.P.-G. for Respondents Nos. 2 and 3.

Date of hearing: 15th January, 2013.

2013 Y L R 2734

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD HATEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.120 of 2012, decided on 7th September, 2012.

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

----S. 392/34---Criminal Procedure Code (V of 1898), Ss. 340, 342 & 364(2)---Qanun-e-Shahadat (10 of 1984), Art.161---Robbery, common intention---Appreciation of evidence---Remand of case to Trial Court---Court failing/omitting to put important questions to the accused in terms of S. 342, Cr.P.C.---Opportunity to cross-examine witnesses through counsel not provided---Effect---Accused was alleged to have snatched complainant's cell phone from him after threatening him with a weapon---Robbed cell phone was allegedly recovered from the possession of the accused---Trial Court convicted and sentenced the accused under Ss. 392 and 34, P.P.C.--- Validity--- Prosecution witnesses were cross-examined during trial by the accused himself but his ability to cross-examine could not be substituted with that of a counsel---Duty was conferred upon the Trial Court to cross-examine the witnesses to extract the truth to arrive at a just decision of the case but in circumstances of the case Trial Court did not conduct the trial in accordance with S. 340, Cr.P.C. and Art. 61 of Qanun-e-Shahadat, 1984---Statement of accused in terms of S. 342, Cr.P.C. had not been recorded in accordance with its spirit---Trial Court had observed in the impugned judgment that accused was apprehended with the robbed mobile, yet such question was not put to the accused while recording his statement under S.342, Cr.P.C., thereby he was deprived from explaining his position to that extent---Perusal of record also showed that statement of accused under S. 342, Cr.P.C. had not been recorded in accordance with S. 364(2), Cr.P.C., which provided that a judge "shall" certify under his own hand that examination was taken in his presence and hearing and that the record contained a full and true account of statement made by the accused---Impugned judgment of Trial Court was set aside, case was remanded to the Trial Court for decision afresh with the direction that accused be provided an opportunity to cross-examine the witnesses through a counsel and further re-examine accused under S. 342, Cr.P.C. in accordance with provisions of S. 364, Cr.P.C. by inviting his attention to all incriminating pieces of evidence on record---Appeal was disposed of accordingly.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 rel.

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

----S. 342---Power of court to examine the accused---Scope---Use of the word "shall" in S. 342(1), Cr.P.C. indicated that examination of accused was mandatory and not discretionary.

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

----S. 342---Court failing/omitting to put important questions to the accused in terms of S. 342, Cr.P.C.---Effect---Cases where accused was not questioned at all or his attention was not invited to an important piece of evidence implicating him with the commission of the offence, the omission so made would be fatal.

Munir Ahmed alias Munni v. The State 2001 SCMR 56; Rattan Singh v. State of Himachal Pradesh AIR 1997 SC 768 and Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 rel.

Niaz Muhammad Ghumro for Appellant.

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

Date of hearing: 17th August, 2012.

2013 Y L R 2742

[Sindh]

Before Aftab Ahmed Gorar, J

NADEEM AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.274 of 2010 and M.A. No.964 of 2013, decided on 15th May, 2013.

Penal Code (XLV of 1860)---

----Ss.302 (b) & 302 (c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Trial Court convicted accused under S.302(b), P.P.C. and sentenced to imprisonment for life---Plea raised by accused was that he did not fire upon deceased---Prosecution witnesses did not utter single word with regard to accused that he had fired upon deceased---Prosecution witnesses were not eye-witnesses of scenario of occurrence but were formal witnesses---Complainant adduced his evidence just moving as star-witnesses to the path of prosecution story and his evidence reflected that he had not seen accused at place of occurrence but he was shown to him at police station---Complainant further admitted that his statement was recorded under S. 154, Cr.P.C. at the hospital but he did not visit police station for single moment for a particular purpose to register F.I.R. and he had not seen incident with his own eyes---High Court altered sentence of accused from S.302(b) P.P.C. to S. 302(c), P.P.C. and reduced sentence of imprisonment for life to fourteen years---Appeal was allowed accordingly.

Allah Bux Shammi and others v. The State PLD 1980 SC 225 and Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

Zakir Hussain Khashkheli for Appellant.

Zahoor Shah A.P.-G. for the State.

Date of hearing: 15th May, 2013.

2013 Y L R 2764

[Sindh]

Before Farooq Ali Channa, J

ABDUR REHMAN---Petitioner

Versus

WAQAR AHMED and 2 others---Respondents

Constitutional Petition No.S-536 of 2007, decided on 29th May, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Ejectment petition was dismissed by the Rent Controller but same was accepted by the Appellate Court---Validity---Neither the principal applicant (landlord) had filed the ejectment proceedings nor appeared before the Trial Court---Landlord was bound to file his affidavit and to come himself in witness box to prove his personal need---Landlord by not doing the same, had not made out the case for requiring premises for personal bona fide need, in circumstances---Findings of the Appellate Court were perverse, suffering from infirmity requiring the interference of the High Court---Impugned judgment was set aside and constitutional petition was allowed in circumstances.

Mehboob Alam v. Miss Tahseen Shafqat Khan and others PLD 2001 Kar. 238 rel.

K.A. Wahab for Petitioner.

Aziz A. Munshi, Abdullah Munshi and Shajee Siddiqui for Respondent No.1.

Dates of hearing: 2nd, 15th and 29th May, 2013.

2013 Y L R 2814

[Sindh]

Before Syed Muhammad Farooq Shah and Aftab Ahmed Gorar, JJ

Mst. SAEEDA---Applicant

Versus

S.S.P., LARKANA and 3 others---Respondents

Criminal Miscellaneous Application No.D-111 of 2013, decided on 18th June, 2013.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas Corpus---Illegal deten-tion---Remedy---Police officer had kept innocent citizens in lockup of police station in unlawful and illegal manner and held two youngsters under unlawful detention for considerable period of time without producing them before court of law---Effect---Such highhandedness and disregard of law could not be condoned or tolerated---Law enforcement agencies should respect law and rights guaranteed to citizen under the Constitution---Police officer took law into his own hands and took away liberty of two citizens without process of law, therefore, malicious act on the part of police official could not be brushed aside---High Court advised Inspector-General of Police being head of the department in provincial hierarchy, to adopt appropriate measures to reform his department by eradicating such highhandedness and excess---High Court imposed special costs upon police officer concerned and directed to pay the recovered amount to the detenues equally, as token of compensation for their illegal detention---Detenues could lodge F.I.R./ complaint against concerned police officer, if so advised---Application was disposed of accordingly.

Khan Muhammad v. S.H.O. 1995 SCMR 1283 ref.

Badar v. Azmat Bashir 2011 SCMR 1420 rel.

Nisar Ahmed Abro for Applicant.

Naimatullah Bhurgri for the State.

Date of hearing: 3rd June, 2013.

2013 Y L R 2823

[Sindh]

Before Irfan Saadat Khan, J

ABDUL RAUF---Petitioner

Versus

DISTRICT EDUCATION OFFICER (Female) and 4 others---Respondents

Constitutional Petition No.S-372 of 2010, decided on 8th February, 2013.

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

----Ss. 10 & 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant---Contention of landlord was that premises was given on rent by his brother to the tenant (school)---Denial of relationship of landlord and tenant by the tenant---Tenant claimed that premises was donated to the school---Ejectment petition was accepted by the Rent Controller on the ground of default in payment of rent however the same was dismissed by the Appellate Court on the ground that there existed no relationship of landlord and tenant between the parties---Validity---No rent agreement was available with the petitioner that premises was given on rent by his brother (the alleged donor) in the year 1968-1969 and rent receipt showing that the said property was let out to the respondents was found to be dubious---No receipt for payment of rent for the period between 1968-1969 to 1987-1988 i.e. 20 years was produced by the petitioner during the trial to prove his case that the respondents were his tenants--- Landlord-petitioner produced certain receipts regarding payment of rent but the receipts were either not bearing proper signatures, and from the receipts it appeared that the payment had been made through cash, which payment could not be made as the government payments were usually made by way of cross cheque etc. and payment of rent by way of cash hardly carried any weight---Proceedings of ejectment had been initiated by the petitioner by stating that the property was rented out by his brother but at no stage of proceedings the brother of landlord-petitioner had claimed about either giving the property on rent or issuing any receipt---School was taken over by a valid legislation and the then school manage-ment had never challenged the same---Respondents (Government authorities) never accepted the petitioner to be the landlord or owner of the premises, hence principles of estoppel and res judicata had no bearing to the present petition---Mere entries in the Excise and Taxation Register in respect of premises would be of little value for the purpose of establishing relationship of landlord and tenant---Constitutional petition was dismissed.

Fateh Gul v. Anwar-ul-Haq Huda 1987 CLC 635 rel.

Abdul Rahseed v. Maqbool Ahmed 2011 SCMR 320; Mst. Roshan Akhtar v. Muhammad Bota 2000 SCMR 1845; Province of Punjab v. Kh. Muhammad Ilyas 2000 SCMR 893; Province of Punjab v. Ch. Khan Muhammad 1989 SCMR 558; Board of Foreign Mission v. Government of Punjab 1987 SCMR 1197; Muhammad Hayat v. Sh. Bashir Ahmed 1988 SCMR 193; A.C.E. Enterprises v. Add. Dist. Judge, Lahore 1987 SCMR 1174; Muhammad Anwar v. Abdul Shakoor 1982 SCMR 1120; Muhammad Ismail and Bros. v. Muhammad Tahir 1981 SCMR 139; Pir Buksh v. Chairman Allotment Committee PLD 1987 SC 145; Mst. Khair-un-Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25 and Deputy Director (Nationalization) Hyd. v. Syed Zahoor-ur Hassan 1982 CLC 1640 distinguished.

Hussain Shaikh for Petitioner.

Chaudhry Bashir Ahmed Gujjar, A.A.-G. for Respondents.

Date of hearing: 1st February, 2013.

2013 Y L R 2836

[Sindh]

Before Aftab Ahmed Gorar, J

SHAMIM AHMED---Applicant

Versus

MUHAMMAD FAREED and 2 others---Respondents

Civil Revision Application No.40 of 2011, decided on 20th May, 2013.

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

----S. 8---Suit for possession of immovable property---Contention of plaintiff was that defendants had encroached upon certain portion of land owned by him---Suit was dismissed concurrently--- Validity---Impugned judgment and decree were based on the report of Commissioner--Said report had not been assailed and was admitted---Both the parties had encroached the portion of street---Inspection report was submitted by the authority and in the said report it was not mentioned that defendants had encroached any portion from the land of plaintiff---Revision was dismissed.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of the High Court was limited and same could be exercised only in cases where subordinate court had exercised its jurisdiction not warranted by law---Jurisdiction of the High Court to interfere with concurrent findings of facts was narrower.

2001 SCMR 789 and PLD 1994 SC 291 rel.

Anayat Hussian Shah Bukhari for Applicant.

Fazle Rabbi for Respondents Nos. 1 and 2.

Aneela Danish for Respondent No.3.

Date of hearing: 15th April, 2013.

2013 Y L R 1

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

ALI AKBAR and 2 others---Appellants

.

Versus

THE STATE---Respondent

Criminal Appeal No.103 and Murder Reference No.331 of 2007, heard on 13th July, 2011.

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

----Ss.302/34, 392 & 411---Qatl-e-amd, common intention, robbery and dishonestly receiving stolen property---Appreciation of evidence---Relationship between the prosecution witnesses and the deceased---Mere relationship between the prosecution witnesses and the deceased, was not enough to discard their evidence---Statements of prosecution witnesses who stood firm to the test of cross-examination could not be discarded especially when sufficient corroboratory material was available to support their testimony---Corroboration was necessary in certain given circumstances only for the safe dispensation of justice, but the scope of that principle could not be extended to the case of ancillary facts testified by the witnesses---Intrinsic value of the statements of the witnesses was to be examined and not the relationship.

Riaz Hussain v. The State 2001 SCMR 177 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b)/34, 392 & 411---Qatl-e-amd, common intention, robbery and dishonestly receiving stolen property---Appreciation of evidence---All accused persons were alien to the complainant---Description of accused persons had already been given in the F.I.R.---Accused had been recognized correctly by prosecution witnesses in accordance with the description---Absence of identification parade, was immaterial, in circumstances---Version of both prosecution witnesses remained firm, consistent, straightforward and worthy of credence on all material particulars, despite they were put to the lengthy cross-examination by the counsel for accused persons---Statement of prosecution witness who witnessed the occurrence of murder and snatching of car, remained unshaken during the cross-examination---Medical evidence had fully supported version of said witness and his statement got due corroboration from medical evidence to the extent of nature of injuries, kind of weapon used for causing such injuries and their duration---Weapon of offence recovered from accused was sent to Ballistic Expert for comparison with the crime empties recovered from the place of occurrence; and report of Ballistic Expert was positive, which had fortified the prosecution version---Defence version was nothing but a simple denial---Mere statement by the defence that the deceased was fired at by the unknown persons and they had been falsely implicated just to fill in the gap, could not be substantiated through any cogent evidence---Accused persons, had not even appeared before the Trial Court in support of their defence as required under S.340(2), Cr.P.C.---Accused was duty bound to prove the plea taken in defence in terms of Art.121 of Qanun-e-Shahadat, 1984---F.I.R. was promptly lodged---Prosecution witnesses had attributed specific role to accused who was armed with firearm and had fired at the deceased---Stolen car was recovered from the accused person---Prosecution had fully established the guilt of accused persons beyond any shadow of doubt by producing worthy of credence and confidence inspiring evidence---Conviction and sentence awarded to all accused persons by the Trial Court were maintained.

Umar Hayat v. The State 2011 SCMR 95; Muzammil Din v. Noor Hussain 1985 SCMR 495; Saee Muhammad v. The State 2007 SCMR 203; Jay Ram v. The State 2007 PCr.LJ 27; Umaid Ali v. The State 2008 SCMR 1419; Muhammad Akram Rahi v. The State 2011 SCMR 877; Riaz Hussain v. The State 2001 SCMR 177 and Khadim Hussain v. The State PLD 2010 SC 669 ref.

Muhammad Akram Rahi v. The State 2011 SCMR 877 rel.

Tahir Mehmood and Malik Fayyaz Ahmed Khukh for Appellants.

Abdul Majeed Rana, A.P.G. for the State.

Date of hearing: 13th July, 2011.

2013 Y L R 27

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SADIQ and others---Petitioners

Versus

ABDUL REHMAN and others---Respondents

Civil Revision No.349-D of 2003/BWP, heard on 11th January, 2012.

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

----Ss. 12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Art. 133---Suit for specific performance of sale agreement---Subsequent vendee claiming to be bona fide purchaser for value without having notice of prior agreement in favour of plaintiff---Suit decreed by Trial Court upheld by Appellate Court---Validity---Vendor had not challenged such decree before Appellate Court or High Court---Mutation of sale entered in favour of subsequent vendee was not sanctioned and vendor had challenged its validity in a suit still pending---Subsequent vendee in written statement had not specifically denied existence of valid agreement between vendor and plaintiff---Statements of plaintiff and his witness to the effect that subsequent vendee had knowledge about plaintiff's agreement, would be deemed to have been admitted by him due to not cross-examining them---High Court dismissed revision petition in circumstances.

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

----Art. 133---Material portion of state-ment of a witness, if not cross-examined by his opponent, would be presumed under law to have been admitted by him.

Sh. Karim-ud-Din for Petitioners.

Mian Ahmad Nadeem Arshad for Respondents Nos. 1 and 3.

Mirza Muhammad Asif Nadeem for Respondent No.2.

Date of hearing: 11th January, 2012.

2013 Y L R 34

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

ASHIQ HUSSAIN and 5 others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Appeal No.132 and Criminal Revision No.140 of 2004, heard on 12th June, 2012.

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

----Ss. 324, 411, 440, 337-A(i), 337-F(ii), 337-F(v)(vi), 148 & 149---Attempt to commit qatl-e-amd, dishonestly receiving stolen property, mischief, causing Shajjah-i-Khafifah, causing badi'ah, hashimah, munaqqilah and rioting, common object---Appreciation of evidence---Defence version with regard to actual delivery of possession of suit-land in their favour, on the basis of sale-deed, was not supported by any documentary evidence---Patwari appeared in the court as prosecution witness, but the defence side had failed to put any document regarding change of possession ever issued by him in favour of defence side---Defence could not prove that the complainant party had forcibly taken the possession from accused---Defence had admitted that the complainant party was in possession of the suit-land---Presence of accused party along with tractors and firearm weapons at the time and place of occurrence transpired that they wanted to get the possession of the disputed land forcibly in illegal manner---Aggression of accused party was established in furtherance of their common object to commit mischief after preparation---Such was an overt act committed by accused in prosecution of their common object being members of unlawful assembly---Offence under Ss.440/148/149, P.P.C., was established against accused, in circumstances---Appraisal and comparative analysis of ocular and medical evidence with regard to attribution of various injuries to accused persons, transpired that same were consistent, in line and corroborative to each other without any material discrepancy---Respective con-viction of accused persons with regard to attribute of various injuries to each of them, did not suffer from any notable inconsistency---Accused could not discharge the burden of proving the right of private defence---Trial Court had rightly concluded that accused party was guilty of criminal trespass by constituting unlawful assembly to create mischief---Accused had no case at all to challenge the convictions and sentences awarded to them by the Trial Court---Trial Court having already taken lenient view in awarding the sentences to accused persons for extenuating circumstances in the case, they had no ground for reduction of quantum of sentence---In view of absence of any factual or legal infirmity in the impugned judgment, appeal filed by accused against their conviction and sentence, was dismissed, in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Court was duty-bound to examine the entire evidence that had been produced by the prosecution and the defence.

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

----Ss. 302(b)/149---Qatl-e-amd, common object---Petition for enhancement of sentence---Complainant had sought enhancement of sentences of accused persons contending that accused being armed with weapons had formed an unlawful assembly with the common object to cause death of deceased as well as injuries to the prosecution witnesses; and that while recording their conviction, the Trial Court had failed to convict them under Ss.302(b)/149, P.P.C.; that accused were vicariously liable for the murder of the deceased; and that they, in circumstances deserved to be convicted under S.302(b), P.P.C. as well---Validity--Since co-accused to whom fatal firearm injury to the deceased was attributed, was a proclaimed offender, his culpability was yet to be determined by the court of competent jurisdiction---Plea of vicarious liability qua the accused persons under Ss.302(b)/149, P.P.C. was devoid of any force---Keeping in view the extenuating circumstances, case of enhancement of sentence awarded to the accused persons could not be considered---Petition for enhancement of sentence was dismissed, in circumstances.

Gohar Razzaq Awan, Muhammad Asif and Ch. Abdul Majid for Appellants.

Tariq Javed, D.D.P.P. along with Muhammad Khalid S.I. for the State.

Shah Nawaz Khan Niazi and Malik Abdul Wahid for the Complainant.

Date of hearing: 12th June, 2012.

2013 Y L R 47

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD BADAR ALAM---Petitioner

Versus

OIL AND GAS REGULARTORY AUTHORITY, through Secretary, Faisalabad and 3 others---Respondents

Writ Petition No.7790 of 2010, decided on 2nd June, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional Petition---Locus standi---Petitioner assailed bill for use of Gas issued to him by Gas company on the ground that new slab formula had been applied in the said bill and same was not warranted under the law---Company contended that only after public notices were issued and after considering and dealing with a number of objections, the new slab formula was approved and applied in bills; and the petitioner had failed to respond to the said public notices and had not objected at that stage---Gas connection was in the name of another consumer and not the petitioner---Held, that petitioner had no locus standi in the constitutional petition and was estopped by his own conduct---Constitutional petition was dismissed, accordingly.

Muhammad Badar Alam for Petitioner.

Umar Sharif for Respondents.

2013 Y L R 53

[Lahore]

Before Mazhar Iqbal Sidhu and Abdus Sattar Asghar, JJ

Mst. RANI BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.17270-B of 2011, decided on 29th December, 2011.

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---Accused was allegedly found in possession of 1250 grams of charas---Complainant (police) sent a decoy witness to purchase illicit narcotic from accused, after which police conducted a raid and recovered the narcotic from the accused along with the sale price---Accused appeared to be octogenarian and her case hinged upon a border line case---Accused being in jail, was not required for investigation and was therefore admitted to bail.

Hafiz Ghulam Shabbir for Petitioner.

Tariq Javed D.D.P.P. with Mumtaz, S.-I. for Respondent.

2013 Y L R 63

[Lahore]

Before Ijaz-ul-Ahsan, J

Mrs. ABIDA RABIA HUSSAIN through Special Attorney---Petitioner

Versus

Messrs MARJAN CNG SERVICES (PVT.) LTD. and 3 others---Respondents

Civil Revision No.687 of 2010, decided on 10th June, 2010.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2 & S.115---Issuance of Commercial Licence---Plaintiff's application for maintenance of status quo over suit property was allowed by Trial Court but the same was dismissed by Appellate Court---Plaintiff contended that certain formalities regarding issuance of commercial licence to defendant over CNG station had not been completed by defendant and that OGRA be directed to submit report including the steps taken by it for issuance of licence to the defendant---Validity---Plaintiff travelled beyond the scope of civil revision, in which OGRA was not a party---Matters agitated did not relate to the facts in issue---Plaintiff, however, if aggrieved of any action on part of OGRA relating to issuance of licence would be at liberty to avail such remedies available under the law---Revision was dismissed, accordingly.

Ch. Ishtiaq Ahmad for Petitioner.

Mian Muhammad Hussain Chotiya for Respondents.

Ahsan Sohail Anjum, Advocate.

Aamir Nassat, Joint Executive Director, OGRA.

2013 Y L R 70

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD YASEEN---Petitioner

Versus

ABID HUSSAIN and 29 others---Respondents

Civil Revision No.1700 and C.M. Nos. 1533-C and 2 of 2010, decided on 23rd November, 2010.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of execution petition---Petitioner's application for transfer was dismissed by District Judge---No valid ground had been shown to the High Court to have another view in the matter than the one expressed by the District Judge---No case for interference having been made out, revision was dismissed with the direction that the objection petition of the petitioner, if possible, may be decided first and expeditiously by the Trial Court.

Muhammad Saeed Sheikh for Applicants.

Ishfaq Qayyum Cheema for Petitioner.

2013 Y L R 76

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1432 and Murder Reference No.574 of 2005, heard on 17th January, 2012.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Four co-accused had been acquitted by Trial Court and their acquittal had not been assailed either by the State or by the complainant before High Court, which had attained finality---Question for determination was, whether the evidence which had been disbelieved qua the acquitted co-accused could be believed against the accused---Counsel for complainant and the State had distinguished the case of accused from his co-accused on the basis of motive, recovery of weapon of offence and medical evidence, which according to them had independently corroborated the prosecution version against the accused---Motive had been attributed not only to the accused, but also to the acquitted co-accused---Hatchet recovered at the instance of accused was found blood-stained by the Chemical Examiner, but there was no report of Serologist regarding origin of the blood-One injury on the person of the deceased and one injury on the person of the injured witness, had been attributed to the accused and to each of the three acquitted co-accused, thus, there was no independent corroboration qua the role assigned to the accused---Role attributed to accused in the occurrence was identical to that of acquitted co-accused and his case was not distinguishable from their case---Accused was acquitted in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. The State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

(b) Criminal trial---

----Appreciation of evidence---Principles.

Rai Tanveer Arshad Khan and Muhammad Qaiser Amin Rana for Appellants.

Ch. Muhammad Mustafa, D.P.G. for the State.

Muhammad Iftikhar Ullah Dhillon for the Complainant.

Date of hearing: 17th January, 2012.

2013 Y L R 92

[Lahore]

Before Shahid Hameed Dar and Altaf Ibrahim Qureshi, JJ

PERVAIZ IQBAL---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.III and 2 others---Respondents

Writ Petition No.15601 of 2011, decided on 7th July, 2011.

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

----S.6---Terrorism---Components and constituents of terrorism detailed. The 'purpose', the motivation, the 'actus reus' and the 'mens rea' constitute the components of terrorism or an act of terrorism. An action designed to coerce and intimidate or overawe the government or the public or section of public or community or sect or, if such an action is designed to create a sense of fear or insecurity in society in the backdrop of religious, sectarian or ethnic cause, shall constitute an act of terrorism or a terrorist act. To create fear or insecurity in the society through a crime is not by itself terrorism unless the motive or the design or the actus reus or mens rea pre-exists for creating such fear or insecurity in the society. A private crime resulting into fear or insecurity as a by-product, a fall out or an unintended consequence of fright etc. cannot be termed as an act of terrorism. Mere gravity, heinousness, gruesomeness or shocking nature of any offence, committed in pursuance of personal enmity or in settlement of personal vendetta is not by itself sufficient to brand such crime as a terrorist act or an act of terrorism.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Muhabbat Ali and another v. The State and another 2007 SCMR 142 ref.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 324/ 148/ 149/ 427/ 337-A(i)/ 337-F(iii)/ 337-L(2)--- Constitution of Pakistan, Art.199---Attempt to commit qatl-e-amd, rioting with deadly weapons, causing hurts---Constitutional petition---"Act of terrorism", determination of---Nexus had to be shown between the act done and the objective or design by which the offence had been committed, to formulate an opinion whether or not such offence could be termed an act of terrorism---In the absence of such linkage it could not be held that the offence committed in the background of personal enmity or vendatta, transmitting a wave of terror or fright or horror, was necessarily an act of terrorism---Complainant and his co-witnesses had categorically stated during investigation that the accused mentioned in the F.I.R. had a personal motive and grudge to commit the offence, therefore the crime committed by them, regardless its repercussions, could not be dubbed an "act of terrorism"---Impugned order passed by Anti-Terrorism Court transferring the case to the court of ordinary jurisdiction on the application of accused moved under S.23 of the Anti-Terrorism Act, 1997, was well-reasoned and based on relevant law---Constitutional petition was dismissed in limine accordingly.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Muhabbat Ali and another v. The State and another 2007 SCMR 142 ref.

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

----Ss. 6 & 7---"Act of terrorism"---Determination---Principles---Nexus has to be shown between the act done and the objective or design by which the offence was committed, to formulate an opinion whether or not such offence could be termed an "act of terrorism"---In the absence of such linkage it cannot be held that the offence committed in the background of personal enmity or vendatta, transmitting a wave of terror or fright or horror, was necessarily an act of terrorism.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 rel.

Rai Nadeem Iqbal Kharal for Petitioner.

Ch. Muhammad Shabbir Gujjar, Assistant Advocate General for Respondent (on Court's call).

2013 Y L R 95

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD RAHTAS KHAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.133-J, 134-J and Criminal Revision No.82 and Murder Reference No.72 of 2007, heard on 27th March, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Time of occurrence had not been mentioned in the F.I.R.---Matter was reported to the Police on the next day and formal F.I.R. was also registered on the same day---No eye-witness was mentioned in the F.I.R. and the prosecution later on introduced two eye-witnesses---One of such witnesses having been given up, prosecution case hinged only on the statement of second witness---Said two witnesses who were related to the deceased, their conduct was unnatural; they did not make any attempt to take the deceased to the hospital in order to save his life and also did not come to the house of the complainant to inform him regarding the incident---Inordinate delay in lodging the F.I.R. and silence of eye-witness, had created doubt about veracity of the witness---Delay in recording the statement of a prosecution witness by Police without furnishing any plausible explanation was fatal to the prosecution case and the statement of such witness was not reliable---Identification of accused persons in the darkness of night and under the flickering light of the lanterns from the distance of about 50 feet, was not free from doubt---Even otherwise identity of an accused in the darkness of night in the light of lantern, usually was considered a weak type of evidence and it was not safe to rely upon the same---Evidence of sole eye-witness, was not worthy of reliance, in circumstances---When no evidence was available with regard to snatching of wrist-watch and gold ring from the deceased, alleged recovery of said articles from the possession of accused, was of no avail to the prosecution case---Date of arrest of accused person was contradictory---Possibilities could not be ruled out that accused were arrested prior to the date as mentioned by the prosecution witnesses---Empties having been sent to the Forensic Science Laboratory, after arrest of accused, it was not safe to rely upon alleged recoveries of the weapons of offence on the pointation of accused and report of Forensic Science Laboratory---Even otherwise, the evidence of recovery was only of corroborative in nature and conviction of accused could not be sustained merely on the basis of recovery of Kalashnikov and positive report of Forensic Science Laboratory---Prosecution had failed to prove its case against accused person beyond shadow of doubt---Conviction and sentence awarded to accused persons by the Trial Court were set aside and extending them the benefit of doubt, they were acquitted and released, in circumstances.

Rahat Ali v. The State 2010 SCMR 584; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Aurangzeb v. The State through Advocate-General 2008 PSC Crl. 965; Umar Hayat and others v. The State 1997 PCr.LJ 1508; Abdul Hameed alias Hameeda v. The State 1989 PCr.LJ 1041; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqub v. The State 1971 SCMR 756 and Nek Muhammad and another v. The State PLD 1995 SC 516 rel.

Saqib Akram Gondal for Appellants.

Ch. Ghulam Mustafa, D.P.G. for the State.

Zafar Iqbal Chohan for the Complainant.

Date of hearing: 27th March, 2012.

2013 Y L R 114

[Lahore]

Before Nasir Saeed Sheikh, J

MUSTAFA through Legal Heirs---Petitioner

Versus

ALI MUHAMMAD---Respondent

Civil Revision No.2212 of 2003, decided on 22nd November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Gift---Suit of respondent was decreed by Trial Court and same was upheld by Appellate Court---Petitioner contended that respondent could not prove the three ingredients of gift and that petitioner had instituted a suit for specific performance of agreement to sell in his favour by previous owner that was later withdrawn by the petitioner, wherein interim injunction was issued against disposal of suit property---Validity---Petitioner in written statement had admitted that he instituted a suit for specific performance of agreement to sell in his favour from the previous owner of suit property, and the previous owner denied entering into such agreement to sell with the petitioner, therefore suit was withdrawn---Petitioner had not produced copies of pleadings of said suit nor any order passed by the court but such admission of petitioner was sufficient to non-suit petitioner in respect of his locus standi---Trial Court had found that the petitioner had no locus standi to contest legality of gift deed made in favour of respondent, and same was rightly upheld by Appellate Court---Concurrent findings by courts below were in accordance with law---Contention that there was some injunctive order issued by court in the suit instituted by the petitioner for specific performance was not proved through any documentary evidence---No illegality having been found in the findings of courts below, revision was dismissed.

Mian Sher Alam for Petitioner.

Ch. Nasir Ahmad Bajwa for Respondent.

2013 Y L R 119

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ABDUL RAZZAQ and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.328-J of 2011, decided on 12th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302/337-A(ii)/337-F(i)/337-L(2)--- Qatl-e-amd, shajjah-i-mudihah, ghayr-jaifah damiyah, other hurt---Suspension of sentence---Injury sustained by deceased which had been assigned to the accused was simple in nature---General allegation against accused and co-accused of causing injuries to the prosecution witnesses---One of the injured prosecution witnesses had not been produced by the prosecution to substantiate the injuries---Accused was behind the bars and had already suffered about eight years of incarceration and there was no likelihood of fixation of his main appeal in the future---Conviction and sentence awarded to accused was suspended and he was admitted to bail.

Shaharyar Sheikh for Petitioner.

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

2013 Y L R 131

[Lahore]

Before Muhammad Anwaarul Haq, J

MUHAMMAD SHOAIB alias SHOABI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3054-B of 2012, decided on 22nd March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and he was subsequently involved in the present case through supplementary statement of the complainant, in which no specific injury to the deceased had been attributed to the accused and there was a collective allegation against the accused and co-accused for firing at the deceased---Police had opined in its report under S. 173 Cr.P.C, that the accused had not fired at the deceased rather he was driving the motorcycle and his co-accused had fired at the deceased from his weapon---No weapon of offence was recovered from the accused but same was recovered from the co-accused----Evidentiary value of the supplementary statement of the complainant against the accused as well as his vicarious liability in the occurrence could validly be determined by the Trial Court after recording of evidence---Accused had no previous criminal record--Case against accused fell within the purview of S. 497(2) Cr.P.C. and was one of further inquiry into his guilt---Bail petition of accused was accepted and he was admitted to bail.

Shaharyar Sheikh for Petitioner.

Muhammad Akram Tahir, Deputy District Public Prosecutor for the State.

Abdul Latif Hanjra for the Complainant.

Bashir Ahmad, S.I. with record.

2013 Y L R 139

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD YOUNIS and another---Petitioners

Versus

NAZAR AHMED---Respondent

Civil Revision 1190 of 2004, decided on 6th September, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Suit of respondents was decreed by Trial Court and petitioner's appeal against the same was dismissed by Appellate Court---Petitioner assailed judgment and decree of the courts below on the ground that same were based on misreading and non-reading of evidence and that the respondent had been found guilty of theft by a panchayat---Validity---Contention of petitioners that the respondents had stolen their cattle and were found guilty in a panchayat had no force as they did not produce any solid evidence in that regard---If the respondents had stolen property of petitioners, a criminal case should have been filed by the petitioners---Said panchayat had no legal sanctity to declare anyone guilty or innocent---Concurrent findings of courts below were not shown to have overlooked any part of the record and were based on proper appreciation of oral as well as documentary evidence and were, therefore, not susceptible to review in revisional jurisdiction of High Court---Revision was dismissed.

Guldar Khan v. Esa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

Ch. Muhammad Aslam for Petitioner.

Nemo for the Respondent.

2013 Y L R 145

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD RAFIQUE---Petitioner

Versus

MUHAMMAD SHAFIQUE and others---Respondents

Civil Revision No.1939 of 2011, decided on 24th June, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Making of Talbs---Talb-e-Muwathibat---Talb-e-Ishhad--Proof---Discrepancies in exami-nation-in-chief and cross-examination---Pre-emptor during his cross-examination admitted that he came to know about the transaction by an informer and at the same time he announced his superior right of pre-emption qua the respondents over the property in dispute---Pre-emptor in examination-in-chief did not mention that he at once exercised his right of pre-emption nor did he disclose that he announced his right of pre-emption in presence of the informer---Pre-emptor only produced single witness of talb-e-Muwathibat, who was also the informer of the sale; he had also not proved talb-e-Ishhad in accordance with law since in his statement he admitted that he could not mention exactly whether the notices of talb-e-Ishhad exhibited in court were the same notices which were sent to the respondents---Clerk who had written the notice of talb-e-Ishhad was not produced as witness in the case---Pre-emptor had not successfully proved the talbs in accordance with law---Courts below were concurrent in their findings of fact and had taken into consideration all the material aspects of the case in their judgments and decrees---No interference in revisional jurisdiction was called for---Revision petition was dis-missed in circumstances.

Muhammad Naveed Shabbir Goraya for Petitioner.

2013 Y L R 154

[Lahore]

Before Sardar Muhammad Shamim Khan, J

AKHTAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4085-B of 2010, decided on 20th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 109/ 148/ 149--- Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Accused had not injured any of the deceased persons---Two firearm injuries, simple in nature, were attributed to accused on the lower part of the right and left leg of a prosecution witness, which were non-vital parts of his body---Motive was not assigned to accused---Although gun was recovered at the instance of accused, yet none of the crime empties secured from the spot were found to have been fired from the said gun---Accused was behind the bars for more than one year and eight months, but not a single witness had been examined by the Trial Court in the case so far---Trial was not likely to conclude in near future---Bail could not be withheld as punishment, if otherwise case of accused was found to be of further inquiry---Common intention of accused in the occurrence could only be determined at the trial---Accused was admitted to bail in circumstances.

Liaqat Ali v. The State 2008 MLD 102 and Shafi Muhammad v. The State 2004 PCr.LJ 2002 ref.

PLD 1992 SC 81 rel.

Habib Ullah Shakir for Petitioner.

Abdul Aziz Niazi and Sardar Muhammad Irshad Dogar for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.G.

Muhammad Arif, A.S.-I., with record.

2013 Y L R 178

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

NARIB alias NARIBA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.33 and Murder Reference No.105 of 2007, heard on 24th September, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Main prosecution witness who was given up being won over and whose statement was withheld by the prosecution, neither was the relative of the complainant party, nor was resident of the area, but his village was at a distance of 5 miles away from the residence of the complainant---Prosecution case was silent on the point as to why said witness had opted to proceed to the village of the complainant which was far away---Prosecution story on that score did not seem plausible---Medical evidence was at variance with the prosecution evidence of the ocular account---Empty of pistol was not sent to the office of Chemical Examiner for its matching with the pistol and same, in no way, advance the prosecution case---Complainant and other prosecution witnesses, were not only closely related to the deceased, but due to previous enmity between the parties, they were inimical towards accused---Out of three accused persons involved in the case, two had been acquitted by the Trial Court on the same set of evidence---Motive remained unproved---Prosecution case was full of material contradictions/ discrepancies especially when the medical evidence was at variance with the ocular account---Occurrence was unseen and both the complainant and prosecution witness, were not present at the relevant time---Unproved motive, uncorroborated recovery of pistol, were the circumstances, which had created doubt in the authenticity of the prosecution version---Prosecution had failed to bring home the guilt of accused to substantiate its case on capital charge---Trial Court was not justified in convicting accused based upon such uncorrobo-rated/contradictory evidence, which even otherwise was full of flaws---Benefit of every doubt was to be extended in favour of accused---Conviction and sentence recorded by the Trial Court against accused being against all canons of law recognized for the dispensation of criminal justice were set aside, and accused was acquitted and was ordered to be released, in circumstances.

Lal Khan v. The State 2006 SCMR 1846 rel.

(b) Criminal trial---

----Appreciation of evidence---If evidence of the prosecution was disbelieved qua majority of the accused persons, it could not be believed qua the other accused in absence of very strong corroboration.

Akhtar Ali and others v. The State 2008 SCMR 6; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Sher Bahadur's case 1972 SCMR 651 rel.

(c) Criminal trial---

----Absconsion---Effect---Mere absconsion, was not a proof of guilt of an accused.

Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

Ch. Muhammad Anwar Zahid for Appellant.

Tariq Javed, DDPP for the State.

Muhammad Imran, Advocate Vice-Counsel for the Complainant.

Date of hearing: 24th September, 2012.

2013 Y L R 193

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Sheikh KAMRAN alias KAMI---Petitioner

Versus

GUL MUHAMMAD and another---Respondents

Writ Petition No.1765 of 2011, decided on 3rd February, 2011.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---Ss. 13 & 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant---Suit for determining ownership of rented shop was pending disposal---Landlord (respondent) had shown his willingness to allow three months' time to tenant (petitioner) to vacate the rented shop provided he continued paying rent until vacation of the shop---Tenant sought one and a half years' time to vacate the shop---Landlord and tenant both consented to allow the tenant 9 months' time to vacate the shop provided monthly rent was paid before the tenth day of every month and if tenant defaulted on such payment, he would be liable to be ejected immediately---Upon completion of 9 months tenant was to surrender physical possession of the shop to the landlord and statements from both parties made during the disposal of constitutional petition would not affect their respective rights in the suit pending for ascertainment of ownership of shop---Petition was allowed accordingly.

Malik Amjad Pervaiz for Petitioner.

Rana Nasrullah Khan for Respondents.

2013 Y L R 201

[Lahore]

Before Abdul Sami Khan, J

SAIFULLAH alias GAPPOO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.9962-B of 2012, decided on 29th August, 2012.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 365-B/376/420/468/471/496-A/ 458/494/495---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.--Kidnapping, abducting or inducing woman to compel for marriage etc., rape, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, enticing or taking away or detaining with criminal intent a woman, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, marrying again during life time of husband or wife, concealment of former marriage from person with whom subsequent marriage is contracted---Ad interim pre-arrest bail, confirmation of---Further inquiry---Nikah Nama in favour of accused---Divergent stances taken by alleged abductee---Suit for jactitation of marriage pending in Family Court---Effect---Accused was alleged to have abducted the abductee and contracted marriage with her, when allegedly she was already married to another person---Net was spread wide by complainant to entangle whole family of the accused in the case---Registered Nikah Nama of alleged abductee was available on record which established her marriage with accused---Nikah of alleged abductee with another person as claimed by complainant side was not available on police file---Suit for jactitation of marriage was pending in the Family Court and matters involving Nikah between parties should be resolved by Family Court and not by police---Alleged abductee had taken different stances at different forums during investigation, at times in support of accused and at against him, which itself created doubt in the prosecution story and made the case one of further inquiry---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Matter concerning Nikah Nama, resolution of---Scope---Matters involving Nikah between the parties should be resolved by the Family Court and not by the police.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 rel.

Ghulam Hussain Malik for Petitioner with Petitioner in person.

Muhammad Akhlaq, Deputy Prosecutor-General for the State and Sikandar Zulqarnain, S.I. with record.

Muhammad Ijaz Khan for the Complainant.

2013 Y L R 206

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

PROVINCE OF PUNJAB through DOR and 10 others---Respondents

Civil Revision No.626 of 2011, decided on 13th April, 2011.

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

----S. 30---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2----Acquisition of proprietary rights---Temporary injunction, grant of----Suit of petitioner assailing order of Member, Board of Revenue and grant of temporary injunction was dismissed by civil court and Appellate Court---Contention of the petitioners was that land in dispute was granted to them by temporary lease thereafter proprietary rights to the same had been conferred upon them by the Provincial Government--Validity---Disputed land admittedly was acquired for the Thal Development Authority, therefore, any surplus land would be the entitlement of the land-owners by way of return---Petitioners, in the present case, had specifically stated that they were tenants and not the owners of the land---Land could only be adjusted in favour of the land-owners, and the petitioners, in circumstances, were not entitled to the land---No proprietary rights could be granted to any third party as land did not belong to the Provincial Government---Courts below had rightly concluded that petitioners did not have a prima facie case---Orders of the courts below were based on correct appreciation of facts and circumstances of the case and law applicable thereto---High Court did not find any material irregularity in exercise of jurisdiction---Revision was dismissed.

Mian Shah Abbas for Petitioners.

Qazi Khurshid Alam Siddiqi for Respondents.

2013 Y L R 210

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD RIAZ---Appellant

Versus

MUHAMMAD JAVED---Respondent

S.A.O. No.84 of 2007, heard on 31st May, 2011.

West Pakistan Urban Rent Rest-riction Ordinance (VI of 1959)---

----S.13---Ejectment of tenant on ground of default in payment of rent---Denial of relationship of landlord and tenant---Rent Controller accepted the ejectment petition which was affirmed by the first Appellate Court---Validity---Documents proved that appellant was a tenant of the respondent and he had admitted such fact in a suit filed by him against the respondent---Appellant, therefore, was estopped to deny title of landlord in view of his own admission---Courts below had duly appreciated evidence led by both the parties and concluded that appellant was tenant under respondent and had defaulted in payment of rent---No exception could be taken against such finding of the courts below which did not suffer from misreading or non-reading of evidence---High Court dismissed second appeal, in circumstances.

Sh. Naveed Shahryar for Appellant.

Mian Manzoor Hussain and Zafar Iqbal Chohan for Respondent.

Date of hearing: 31st May, 2011.

2013 Y L R 216

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.8703-B of 2012, decided on 3rd September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34/337-F(iii)/336---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, ghayr-jaifah-mutalahimah, itlaf-i-salahiyyat-i-udw---Bail , grant of---Accused and co-accused persons were alleged to have launched an attack upon complainant party while armed with fire-arms---Accused was specifically attributed the role of firing a shot which landed on the right shin of the injured witness---Accused was not ascribed any overt act which contributed towards death of deceased---Prima facie, in view of allegations, at the most case against accused attracted provisions of S.337-F(iii), P.P.C. for which maximum punishment was three years---Investigating officer had found that accused was only present at the place of occurrence and did not participate in the same---Nothing was recovered on pointation of accused---Culpability of accused regarding his vicarious liability would be determined by Trial Court after recording evidence---Investigation was complete and accused was no more required for further investigation---Accused was admitted to bail in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 ref.

Akhtar Hussain Bhatti for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General.

Ch. Zahid Iqbal for the Complainant.

Ghulam Hussain, A.S.-I. With police record.

2013 Y L R 222

[Lahore]

Before Manzoor Ahmad Malik, J

AKBAR ALI---Petitioner

Versus

DISTRICT POLICE OFFICER and 5 others---Respondents

Writ Petition No.9619 of 2010, decided on 1st June, 2010.

Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S.379---Constitutional petition---Theft---Quashing of F.I.R.---Contention of petitioner was that civil litigation on the subject-matter was pending before High Court---Validity---Challan had already been submitted in the court of competent jurisdiction---Factual controversy was involved between the parties---Petitioner was at liberty to file an application before trial court where challan was pending and the same should be decided on merits and in accordance with law---Constitutional petition was disposed of, accordingly.

Imran Muhammad Safdar for Petitioner.

Ms. Najma Perveen for Respondent No.5.

Amjad Ali Chattha, Assistant Advocate General with Rafi A.S.-I.

2013 Y L R 226

[Lahore]

Before Rauf Ahmad Sheikh, J

ALI AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and others---Respondents

Civil Revision No.1756 of 2010, decided on 18th June, 2010.

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

----Art. 181--Civil Procedure Code (V of 1908), S.48---Execution petition, filing of---Limitation---Defendant (petitioner) had assailed orders passed by both the courts below, whereby, his objection petition seeking dismissal of the execution petition on ground of being time-barred, was disallowed---Contention of defendant (petitioner) that decree-holder (respondents) filed execution petition on 16-6-2006 seeking execution of decree dated 14-10-1981, which was barred by time---Validity---Decree was passed by Trial Court on 14-10-1981 and first and regular second appeal filed by defendant before the High Court were dismissed on 27-11-1984 and 30-10-2001 respectively---Defendant, against the order of High Court, filed petition for leave to appeal before Supreme Court, which was dismissed on 20-12-2009---Article 181, First Schedule, Limitation Act, 1908, prescribed period of three years for execution petition while section 48 Civil Procedure Code, 1908 provided outer limit of six years for every subsequent execution petition---Petition for leave to appeal, filed by defendant, remained pending before the Supreme Court and was dismissed on 20-12-2006. Since matter was pending in the Supreme Court, executing court had lawfully exercised jurisdiction to entertain the execution petition and dismissed the objection petition---Court below had also rightly dismissed the appeal for valid reasons by holding that execution petition was not time-barred as the matter remained sub judice before the Supreme Court till 22-10-2006---No illegality or irregularity having been committed by both the courts below, revision petition was dismissed.

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

----O.XXI & S. 48---Execution of decree---Limitation---Decree-holder who remains successful up to the Supreme Court cannot be deprived of the fruits of the decree merely because he did not seek execution during pendency of the petition for leave to appeal before the Supreme Court.

S.M. Zulqarnain Bukhari for Petitioner.

2013 Y L R 235

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

NOOR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.296 of 2011, decided on 25th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(b)/34--- Qatl-e-amd, common intention----Suspension of sentence pending appeal---Old age of accused---Accused and co-accused persons were alleged to have made a murderous assault upon the deceased party---Trial Court convicted and sentenced the accused to life imprisonment---Contentions of accused were that as per prosecution's own case he had not been attributed any fire-shot injury to either of deceased persons; that role of raising 'lalkara' alleged against him did not fit in the circumstances of the case, and that he was aged about 75 years and being senescent was entitled for the suspension of sentence---Validity---Accused was alleged to have raised a 'lalkara' whereafter co-accused persons fired at the deceased and then he allegedly made indiscriminate firing---No specific injury had been attributed to the accused, who was an octogenarian---No chance of hearing of appeal in the near future existed---Application was allowed and sentence imposed on accused was suspended.

Muhammad Ali v. The State 2007 YLR 2986; Mst. Nasreen Bibi v. The State PLD 2007 Lah. 531; Muhammad Yasin v. The State 2007 MLD 1066 and Mumtaz Hussain v. The State 2006 YLR 2385 ref.

Suckrat Mir Basit for Petitioner.

Tariq Javaid, DDPP for Respondent.

2013 Y L R 239

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ABDUL WAHEED through Legal heirs and others---Petitioners

Versus

Mst. MUMTAZ GULSHAN and 2 others---Respondents

Civil Revision No.1909 of 2010, decided on 6th August, 2010.

Civil Procedure Code (V of 1908)---

----O.XLI R. 27---Suit for declaration---Additional evidence, recording of---Appeal of plaintiffs against dismissal of suit by Trial Court was pending before Appellate Court, when plaintiffs moved an application for recording of additional evidence under O.XLI R. 27, C.P.C. which was allowed---Contention of defendants was that said document was originally available on record before the Trial Court which gave its findings on the same and did not accept the document--- Validity--- Contents of plaintiff's application for recording additional evidence showed that the plaintiffs wanted to file a certified copy of an application moved by them before Chief Settlement Commissioner/Member Board of Revenue and admittedly said document was not in existence at the time of the recording of evidence of the parties before the Trial Court---Certified copy of said document was to the effect that the plaintiff's claim Form placed on record before Trial Court was not believed on the specific ground that the same was in a dilapidated condition and the plaintiffs had already filed an application for issuance of certified copy of said document that was allowed by Chief Settlement Commissioner/Member Board of Revenue, the only authority that could confirm genuineness of the document, after dismissal of suit by Trial Court----Said document was admittedly a document that could be looked into by the Appellate Court, specially in terms of findings of the Trial Court as the Trial Court had opined that the same was in dilapidated condition---Document in question had been verified by the competent authority after the passing of decree by trial Court and as such was not available to the plaintiffs at the time of recording of evidence before the Trial Court----Appeal was in continuation of the suit and Appellate Court enjoyed all powers of the Trial Court, defendants having failed to point out any defect illegality or irregularity in order of Appellate Court, revision was dismissed.

Ch. Muhammad Masood Jahangir for Petitioners.

Abdul Khaliq Safrani for Respondents.

Ijaz Rana, General Attorney for Respondent No.1.

2013 Y L R 253

[Lahore]

Before Amin-ud-Din Khan, J

Hafiz RIAZ AHMAD and others---Appellants

Versus

MUHAMMAD YAMIN and others---Respondents

F.A.O. No.2 of 2005, decided on 31st May, 2011.

Civil Procedure Code (V of 1908)---

----S. 107----Specific Relief Act (I of 1877) S.12----Suit for specific performance to sell immovable property---Suit, after protracted litigation, and impleading of new defendants, was remanded by the Appellate Court on the ground that upon restoration of the suit, plaintiff had not produced any witnesses in order to face the cross-examination on behalf of newly added defendants----Contention of the plaintiff was that he will rely upon the statements of the witnesses already recorded in the court and therefore, there was no need for the remand----Validity----Held, it was incumbent upon the court as on well as on the plaintiff to produce the witnesses in order to face cross-examination by the newly added defendants---No illegality in the order of the Appellate Court having been found, appeal was dismissed.

Nemo for Appellants.

Abdul Majeed Bhatti for Respondents.

2013 Y L R 260

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHAHID NAZIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.563 of 2009, decided on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)--- Qatl-e-amd--- Suspension of sentence---Accused had given a single "Danda" blow on the head of his father which proved to be fatal---Accused having not repeated the blow could not be treated as a hard hearted or callous person---Mother of accused (co-accused) and two other co-accused had been acquitted by Trial Court---Accused was not a previous convict and he could not be termed as a desperate, hardened or a dangerous criminal and his case was not hit by the proviso of S. 426(1-A), Cr. P. C.---Delay in the disposal of appeal could not be attributed to accused---Brother, co-accused had been declared a proclaimed offender---Accused was 20 years old and appeared to be the sole bread earner of his family---Accused was behind the bars for the last 2 years and there was no likelihood of hearing of appeal in the near future---Sentence of imprisonment for life of accused was suspended in circumstances and he was released on bail accordingly.

Altaf Hussain Shah v. State 1994 SCMR 480; Muhammad Yaqoob and others v. The State 1991 SCMR 1459 and Liaqat and another v. The State 1995 SCMR 1819 rel.

Liaqat Ali v. The State 1999 PCr.LJ 1942; Shaukat Ali v. The State 2006 YLR 1174 and Muhammad Mustafa v. The State 2001 MLD 1335 ref.

Tariq Mehmood Sipra for Petitioner.

Muhammad Ishaq, D.P.G. for the State.

Ali Baqir Najfi for the Complainant.

2013 Y L R 272

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

RIASAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1458 of 2009, heard on 29th May, 2012.

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

----Ss. 302(b), 452 & 109/34---Qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, abetment and common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was lodged with a delay of five days and explanation rendered by the complainant for such inordinate delay was not confidence inspiring and did not appeal to senses---Prosecution witnesses who were not vigilant in reporting the matter to the Police, their statements could not be given any credence---Occurrence had taken place in the odd hours of the night at 11.45 P.M., but neither in the complaint nor while appearing before the Trial Court any source of light was mentioned, due to which the complainant and other prosecution witnesses identified the accused and other co-accused---Conflict existed between postmortem examination report and ocular account of fire shot and injuries---Police had not collected any empty from the place of occurrence---Place of occurrence being inside the house, non-collecting empties, when two fire shots had been alleged against accused, had created dents in the prosecution version---Recovery of pistol .30 bore allegedly effected from accused in absence of any report of Forensic Science Laboratory, could not be considered a circumstance against accused to connect him with alleged crime---Out of four accused persons involved in the case, three had been acquitted by the Trial Court on the same set of evidence---Mere absconsion of accused was not a proof of his guilt---Prosecution case was full of material contradictions/discrepancies, especially the conduct of the prosecution witnesses of the ocular account delaying in reporting the matter to the Police, when they had close relationship with the deceased--- Contradiction in the prosecution version and the ocular account, unproved motive, veracity of recovery of pistol in absence of any report of Forensic Science Laboratory; and the fact that on same set of evidence, three accused persons were acquitted by the Trial Court---Prosecution having failed to bring the guilt of accused to substantiate its case on capital charge, the Trial Court was not justified in convicting accused---Accused was acquitted and released extending him benefit of doubt, in circumstances.

Mehmood Ahmed and 2 others v. State 1995 SCMR 127; Maqsood Pervez alias Billa and another v. The State 2000 SCMR 1859 and Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

(b) Criminal trial---

----Appreciation of evidence---If evidence of the prosecution was disbelieved in case of one accused, same could not be believed qua the other in absence of very strong corroboration.

Akhtar Ali and others v. The State 2008 SCMR 6; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Sher Bahadur's case 1972 SCMR 651 rel.

(c) Criminal trial---

----Benefit of doubt---Benefit of every doubt was to be extended in favour of accused---Court ought to let off hundred guilty, but should not convict one innocent person.

Rai Sajid Ali Kharal for Appellant.

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

Nemo for the Complainant.

Date of hearing: 29th May, 2012.

2013 Y L R 282

[Lahore]

Before Mazhar Iqbal Sidhu, J

ALI HASNAIN BUTT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.6605-B of 2012, decided on 16th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364/ 302/ 109/34---Kidnapping or abducting in order to murder, qatl-e-amd, abetment, common intention---Bail, grant of---No direct evidence was available and trial had already commenced---Effect---Accused and co-accused were alleged to have abducted and murdered the deceased---Accused was also alleged to have pointed out the place where the dead body was thrown, and recovery of weapon had also been alleged against him---Contentions of the accused were that there was a delay of 24 hours in lodging of F.I.R.; that no direct evidence of murder was available on the file; that father of the deceased had filed an application before the Justice of Peace for registration of case, wherein he repudiated the story mentioned in the present F.I.R.; that there was suspicion over the motive; that co-accused had already been granted bail, and that mere commencement of trial was no ground to refuse bail if a case for grant of bail was made out---Validity---No direct evidence of murder of the deceased was available against the accused and the maximum evidence collected was that he allegedly pointed out the place where the dead body was thrown---Alleged recovery of weapon from the accused was not a substantial piece of evidence---Father of the deceased had shown the complainant as addict and perjure---Where a case of bail was made out, then commencement of trial by itself was no ground to refuse bail as envisaged by S.497(4), Cr.P.C---Bail petition of the accused was allowed and he was released on bail.

PLD 1989 SC 585 rel.

Mitho Pitafi v. The State 2009 SCMR 299 ref.

Rana Hadayat Ali for Petitioner.

Tariq Javaid, DDPP with Ghulam Farid, S.I. for Respondent.

2013 Y L R 288

[Lahore]

Before Amin-ud-Din Khan, J

MULAZIM HUSSAIN and others---Petitioners

Versus

FATEH MUHAMMAD and others---Respondents

Civil Revisions Nos.1607 and 2548 and R.S.A. No.67 of 2001, decided on 27th June, 2012.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 35---Pre-emption suit---Maintain-ability---Suit was filed in year, 1974, assailing sale of land measuring 550 Kanals and 7 Marlas---Trial Court passed a decree to the extent of 360 Kanals and 7 Marlas and exempted 190 Kanal of land---Pre-emptor, in post remand proceedings, had assailed judgment only to the extent of 190 Kanals---Validity---No decree was passed to the extent of sale of 190 Kanals of suit land before 31-7-1986, therefore, no fresh decree could be passed in respect of said land---Revision was dismissed in circumstances.

Muhammad Ismail Khan and others v. Ghulam Haider and others PLD 1988 Lah. 691 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 21 & 30---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Limitation Act (IX of 1908), Art. 120---Pre-emption suit---Sale---Proof---Muta-tion, attestation of---Suit land was mutated in favour of two vendees separately but pre-emptor assailed a mutation allegedly entered in the name vendees jointly, attested on the same date when separate mutations were attested---Trial Court and Lower Appellate Court concurrently decreed the suit and appeal in favour of pre-emptor---Validity---Both the courts below had rightly found that when valid mutations were entered in favour of separate vendees which were compared and even fees were paid, then there was no occasion to cancel those mutations and enter and sanction with regard to same property joint sale mutation on the same day and date---Such joint mutation was entered with the connivance of revenue staff as well as pre-emptor who had become beneficiary of disputed mutation---When both the courts declared that no sale had taken place through disputed mutation then suit could not have been decreed in favour of pre-emptor---Findings of both the courts below were contradictory one to that extent when at one side they found that no sale took place through disputed mutation and on the other side they had decreed the suit---View of both the courts was wrong as provisions of Art. 120 of Limitation Act, 1908, were not applicable and the case was covered under S. 30 of Punjab Pre-emption Act, 1913, wherein limitation had been given one year for filing of suit---High Court, in exercise of revisional jurisdiction, reversed findings recorded by both the courts below against vendees and suit filed by pre-emptor was dismissed---Revision was allowed in circum-stances.

Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235; Haji Abdul Ghafoor Khan through his L.Rs. v. Ghulam Sadiq through L.Rs. PLD 2007 SC 433; Ashfaque Ahmad and 8 others v. Nadeem Ahmad and 3 others PLD 2006 Lah. 643 and Abdul Rahim and others v. Muhammad Hayat and others 2004 SCMR 1723 rel.

(c) Transfer of Property Act (IV of 1882)---

----S. 54---"Sale"---Defined---Sale means payment of money and delivery of possession.

Malik Noor Muhammad Awan for Petitioners.

Allah Wasaya Malik for Respondent No.1.

Qazi Khurshid Alam for Respondent No.2.

Dates of hearing: 26th and 27th June, 2012.

2013 Y L R 303

[Lahore]

Before Shahid Hameed Dar, J

WALI MUHAMMAD, S.I.---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.11526/B of 2011, decided on 14th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery, using as genuine a forged document---Bail, grant of---Petitioner, Investigating Officer after investigation in a criminal case found the accused involved therein innocent---S.H.O. concerned agreed with the opinion of the accused Investigating Officer for cancellation of the said case and a report under S.173, Cr.P.C. had been prepared after formal proceedings for presentation before the court for appropriate orders---Big gap existed thereafter and it could not be understood as to when and by whom the report under S.173, Cr.P.C. was carried and placed before the Magistrate concerned and who had fabricated a forged order of the Magistrate---Accused Sub-Inspector being the Investigating Officer of that case could be understood to have the knowledge of the said fact, but who could be burdened with the liability of forgery of the order of Magistrate was a question which was not answered by the data collected by the Investigating Officer of the present case---Necessary Police Officials had not been interrogated so far by the police in this regard---Forged order did not show that the case itself had been filed or that the request of the police for cancellation of the case only stood filed---Forged order even did not bear any date---Record showed that the Area Magistrate had undone the opinion of the Investigating Officer and passed an order for submission of challan against the accused---Accused was behind the bars for the last about two and a half months and was no more required for further investigation---Guilt of accused needed further probe under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Abdul Ghaffar for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State.

Muzaffar Hussain Basra for the Complainant.

Sheraz Mirza Inspector (Legal).

Ehsan Ullah Inspector (Legal).

2013 Y L R 309

[Lahore]

Before Mazhar Iqbal Sidhu, J

KHIZAR AHMAD---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF POLICE, INVESTIGATIONS, LAHORE and 6 others---Respondents

Writ Petition No.17820 of 2011, decided on 14th November, 2011.

Police Order (22 of 2002)---

----Art.18(6)---Constitution of Pakistan Art.199---Constitutional petition---Transfer of investigation---D.I.G. (Investigation) had directed for transfer of investigation in the case under Art.18(6) of the Police Order, 2002---Validity---Record of Standing Board as to transfer of investigation was requisitioned in order to know the reasons assigned by the Board for the transfer of investigation as required under Art.18(6) of the Police Order, 2002---Transfer order of investigation lacked reasons despite requirement under Art.18(6) of Police Order, 2002 to assign reasons for such transfer---Petition was accepted and transfer order being shorn of reasons was declared illegal and unlawful and same was set aside.

Syed Ali Zafar and Awais Joya for Petitioner.

Sayyed Fida Hussain Babar Gillani for Respondent No.6.

Arif Yaqoob A.A.-G. for the State.

2013 Y L R 316

[Lahore]

Before Shahid Hameed Dar, J

SHAUKAT ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5867-B of 2012, decided on 25th June, 2012.

(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, rioting armed with deadly weapons and abet-ment---Bail, grant of---Further inquiry---Complainant in his supplementary statement had changed the status of the accused from a prosecution witness to that of an accused---Accused was not nominated as an accused in the F.I.R.---Complainant had posed himself as an eye-witness of the occurrence along with other eye-witnesses while reporting the crime to the Police and they all stuck to their stance of being the eye-witnesses of the occurrence during the course of investigation before the recording of the supplementary statement of the complainant---Prosecution had itself made its case of two versions in respect of the accused, one as mentioned in the F.I.R. and the other entailed in the supple-mentary statement of the complainant---None of the accused mentioned in the supplementary statement of the complainant had been shown as an accused in the F.I.R.---Alleged abscondence of accused did not impede grant of bail to him, as his case had called for further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.---Allegation against the accused to have caught the deceased at the time of firing made by his co-accused did not appeal to reason, as by having done so he must have put his own life at peril---Accused was admitted to bail in circumstances.

(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, rioting armed with deadly weapons and abetment---Bail, grant of---Further inquiry---Abscondence of accused---Effect---Allegation of abscondence of accused does not impede the acceptance of his bail application, if his case calls for further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.

Sardar Abid Khan Jatoi for Petitioner.

Rana Tasawar Ali Khan, D.P.-G. for the State with Mansib S.-I.

2013 Y L R 321

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD HANIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15796/B of 2011, decided on 9th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 460, 324, 148 & 149---Qatl-e-amd, lurking house-trespass or house-breaking by night, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail , refusal of---Order sheet of the case clearly revealed that witnesses had been appearing in the court on different dates of hearing but they could not be examined/cross-examined due to non-availability of the defence counsel or adjournments sought by accused for different reasons---Prosecution could not be held responsible for non-conclusion of the trial---Accused along with his co-accused, having caused qatl-e-amd of an innocent person and injuring others during the commission of a dacoity, was a dangerous criminal within the meaning of the fifth proviso of S.497(1), Cr.P.C---Evidence of eleven witnesses had already been recorded and conclusion of trial in near future was possible---No ground existed to extend concession of bail to accused---Accused was refused bail, in circumstances.

2011 SCMR 1332 rel.

Ch. Anees-ur-Rehman for Petitioner.

Mian Humayun Aslam, D.P.-G. for the State with Liaqat Ali, A.S.-I. with record.

Rao Javed Khurshid for the Complainant.

2013 Y L R 325

[Lahore]

Before Shujaat Ali Khan, J

SAEED AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.3681 of 2012, heard on 11th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of case---Word "shall"--- Effect--- Petitioner filed application before Justice of Peace for direction to police for registration of F.I.R. against respondents but the application was dismissed---Validity---Police was duty bound to record version of petitioner, if commission of cognizable offence was made out---Legislature had knowingly used word "shall" instead of "may" meaning thereby that no option was left with Officer Incharge of Police Station to record version of a party in a case where contents of the statement/ application had constituted commission of a cognizable offence---High Court directed Station House Officer of Police Station to register criminal case on the move of petitioner and set aside order passed by Justice of Peace---Petition was allowed accordingly.

Muhammad Bashir v. S.H.O. Okara Cantt. and others PLD 2007 SC 539 fol.

Malik Falak Sher Parhar for Petitioner.

Muhammad Naeem Bhatti for Respondents Nos. 3 to 6.

Tahir Saeed Ramay, A.A.-G. with Qamar-uz-Zaman, Inspector for other Respondents.

Date of hearing: 11th September, 2012.

2013 Y L R 335

[Lahore]

Before Rauf Ahmad Shaikh, J

WAHEED alias NAHEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7787/B of 2012, decided on 28th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention--Bail, grant of---Delay in conclusion of trial---Allegation against the accused and co-accused was that they made an attack on the complainant and the deceased---Accused was alleged to have made two fire shots which landed on the body of the deceased---Contentions of the accused were that there was material contrast between the ocular account and the medical evidence as according to the witnesses the accused made two fire shots, whereas the post-mortem showed that he had sustained only one injury and the second one was an entry wound; that no substantial progress had been made towards the conclusion of the trial and the accused was not responsible for such delay, and that the accused was a previous non-convict---Validity---Perusal of the order sheet revealed that only one adjournment occurred due to request of counsel of the accused and all remaining adjournments took place due to non-availability of the prosecution witnesses or due to strike of lawyers, for which the accused could not be held responsible---Accused did not bear a history of involvement in criminal cases and was a previous non-convict---Accused had already spent more than 2 years, 4 months and 14 days behind bars, and he was not a desperate and dangerous offender---Bail petition of the accused was accepted and he was granted bail.

Muhammad Zubair Saeed Awan for Petitioner.

Mian Muhammad Awais Mazhar, D.P.G. for the State with Khan Muhammad, A.S.-I. with record.

Malik Sir Buland, for the Complainant.

2013 Y L R 341

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL RAZZAQ and 4 others---Appellants

Versus

Mst. MEHR KHATOON---Respondent

R.S.A. No.21 of 2004, heard on 22nd October, 2012.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 5---Talb-e-Muwathibat/ "Jumping demand"---Proof of---Suit for possession through pre-emption was decreed concurrently---Contention of defendant was that there was no mention of date, time and place of knowledge of impugned sale in the plaint---Validity---Plaintiff must plead jumping demand in the plaint as well as mention the same in the notice and prove the same through evidence---Point of time of knowledge was necessary to prove Talb-e-Muwathibat---In the present case, it was not on the surface as to when and where plaintiff came to know about the impugned sale and therefore he could not prove the jumping demand---Plaintiff could not state that his right had not been extinguished in accordance with S. 13 of the Punjab Pre-emption Act, 1991 when he did not give any date of knowledge in either the plaint or notice---Findings of courts below were wrong---High Court set aside concurrent findings of courts below---Revision was allowed, in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad and others PLD 2007 SC 302 and Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 ref.

Pakistan through General Manager, P.W.R. Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 and Vokkarat Pakistan Ltd. Karachi v. Interavia Pakistan Ltd. Karachi 2001 SCMR 671 distinguished.

Malik Ismail Ahmad Langrial for Appellants.

Mian Shams-ul-Haq Ansari for Respondent.

Date of hearing: 22nd October, 2012.

2013 Y L R 350

[Lahore]

Before Abdul Sami Khan, J

SULTAN alias SULLI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.141 of 1991, heard on 10th September, 2012.

(a) Criminal Trial---

----Chance witness, testimony of---Scope---Testimony of chance witness requires strong independent corroboration.

(b) Criminal trial---

----Motive---Effect---Mere bald assertion regarding motive is not sufficient to provide support to ocular account because strong evidence is required to substantiate the motive set up by prosecution in case---Once a motive has been alleged by prosecution, it is no one else but the prosecution which has to prove motive and any adverse case would provide hard occasion to prosecution to suffer for it.

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

----S. 302 (b)---Qatl-e-Amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---Post-mortem report---Time of death--- Determination--- Accused was convicted under S. 302(b), P.P.C. and sentenced to imprisonment for life---Validity---Held, it was impossible rather unusual that in the light of torch eye-witnesses not only identified four persons but they also noted injuries inflicted by them on different parts of body of deceased in dark night---According to site plan alleged eye-witnesses claimed to have witnessed the occurrence from a distance of about twenty feet which was not possible and that too in the light of torch---Noise of barking dogs only awoke eye-witnesses but the same did not attract deceased---All such facts showed that eye-witnesses were not present at the place of occurrence on fateful night and they were later on procured by prosecution to create ocular account in the case and prosecution could not establish their presence at the spot---According to postmortem examination stomach of deceased contained semi-digestive food and it was improbable that at 3-00 a.m. in morning, stomach contained semi-digestive food because it was common practice in villages that people take meals in early hours of night i.e. about evening time---According to contents of stomach of deceased an inference could be drawn that he might have taken his meal at about 5/6-00 p.m. on the fateful night and later on he was done to death at about 9:00 p.m. at night---Prosecution failed to prove its case against accused beyond any reasonable doubt---High Court extended benefit of doubt to accused and acquitted him of the charge---Appeal was allowed in circum-stances.

2010 PCr.LJ 1551; 2011 PCr.LJ 363; 2010 PCr.LJ 1156 and 2010 SCMR 566 ref.

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

----S. 103--- Recovery--- Non-associating private witnesses from locality---Effect---Such recovery cannot be believed.

Nadeem Ahmad Tarar for Appellants.

Muhammad Abdul Wadood, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 10th September, 2012.

2013 Y L R 359

[Lahore]

Before Sagheer Ahmad Qadri, J

Sh. MUNIR AHMAD and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3759-B of 2012, decided on 4th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Interim pre-arrest bail, confirmation of---Allegation against accused persons was that they made indiscriminate firing in a bazaar which caused a firearm injury on the arm of the complainant's nephew and complainant also suffered an injury on his eye by butt blows of a rifle---Contentions of accused persons were that no medical examination of the complainant was conducted; that complainant had subsequently changed his version by alleging that injury on his eye was caused by pellets; that statement of complainant's nephew was recorded after five days of the occurrence and he only levelled allegations against another accused, and not against present accused persons; that complainant in his supplementary statements alleged that injury was caused to him by another accused person and never levelled any allegations against present accused persons; that complainant himself was involved in different criminal cases, and that some of the co-accused of the incident had already been granted post-arrest bail--Validity---Initially complainant had only mentioned some other accused persons and only named present accused persons in his supplementary statements---Complainant's nephew specifically levelled allegation against another accused for firing directly on him and he did not name any of the present accused persons to involve them with the commission of the offence---Accused persons were alleged to have made indiscriminate firing during the occurrence but investigating officer never collected any empties---Accused persons had joined the investigation and their participation in the occurrence required further probe within the ambit of S.497(2), Cr.P.C---Lack of evidence and doubtful circumstances created ground for grant of anticipatory bail, therefore, bail petition of accused persons was allowed and interim pre-arrest bail already granted to them was confirmed, in circumstances.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380; Fida Hussain v. The State and others PLD 2002 SC 46; Tahir Abbas v. The State 2003 SCMR 426; Muhammad Mahmood Sultan v. The State 1978 PCr.LJ 104; Shoaib Mehmood Butt v. Iftikhar-Ul-Haq and 3 others 1996 SCMR 1845; Shahid Hussain alias Multani v. The State and others 2011 SCMR 1673; Abid Ali alias Ali v. The State 2011 SCMR 161; Noor Muhammad v. The State 2008 SCMR 1556; Hamza Ali Hamza and others v. The State 2010 SCMR 1219; Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and 2 others 2004 SCMR 1462; Ijaz Ali and others v. The State 2007 YLR 1785; Muhammad Waris and 4 others v. The State 2007 YLR 822; Mehmood Ahmad alias Moodi v. The State 2006 PCr.LJ 1144; Ch. Waris Ali v. The State 2007 SCMR 1607; Ashir Wasim Babar v. The State 2006 SCMR 407 and Allah Bachayo and another v. State 2008 PCr.LJ 503 ref.

Naveed Inayat Malik for Petitioners.

Shahid Hussain for the Complainant.

Muhammad Naeem Sheikh, Deputy Prosecutor-General for the State.

Ulfat, S.I. along with record.

2013 Y L R 370

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD FAYYAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5009-B of 2011, decided on 7th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B-Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---Allegation against accused was that he abducted the minor daughter of the complainant and subjected her to zina---Validity---Accused had placed on record a 'nikahnama' as well as copy of an affidavit, wherein, the alleged abductee had claimed to be sui juris being nineteen (19) years old and affirmed to have contracted marriage with the accused of her own free consent and stated that no one had committed zina with her and she was not abducted by anyone---Record also contained a letter written by the alleged abductee to the accused, wherein, she invited the accused to marry her---Despite allegations of zina the alleged abductee was not willing to get herself medically checked which made the case one of further inquiry---F.I.R. was lodged after a delay of one month and twenty six days, which delay had not been satisfactorily explained in the F.I.R.---Offence alleged against the accused was not compoundable, therefore, contention of complainant that he kept silent about the alleged incident for such a long time merely on the request of the accused persons, was not believable---Challan had been submitted against the accused but trial was not likely to be concluded in the near future---Accused was behind bars for more than five months---Accused was admitted to bail, in circumstances.

Abdul Ghafoor v. The State and another 2011 MLD 1048; Muhammad Hanif v. The State and another 2011 YLR 253 and Khan Muhammad v. The State PLD 1986 FSC 262 ref.

Rana Khalid Mahmood for Petitioner.

Muhammad Abdul Wadood, D.P.G. for the State.

Aslam, S.-I.

2013 Y L R 374

[Lahore]

Before Muhammad Anwaarul Haq, J

IMTIAZ AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9745-B of 2011, decided on 26th August, 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 dishonoured cheque to the complainant in the backdrop of a business deal of purchase of rice and the accused had already paid part of purchase price to the complainant---Remaining amount of purchase price was withheld owing to a dispute as to the quality of the supplied consignment---Whether the cheque was issued dishonestly in the circumstances of the case, was a matter to be determined by the Trial Court after recording of evidence---Accused had been behind bars for more than three months without any progress in his trial---Alleged offence against accused not falling within prohibitory clause of S. 497, Cr.P.C and accused having no previous criminal record, he was admitted to bail.

Rana Shahbaz Ali Khan for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

2013 Y L R 379

[Lahore]

Before Abdul Waheed Khan, J

Qari ABDUL KHALIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1598/BC of 2011, decided on 26th October, 2011.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.376, 511 & 452---Rape, house-trespass after preparation for hurt, assault or wrongful restraint---Application for cancellation of bail, refusal of---Nothing on record showed that accused had made any attempt to temper with the prosecution evidence or that he had misused the concession of bail---Order of court below, granting bail to accused, was well-versed and reasons advanced by the Court were well founded---Application for cancellation of bail was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 foll.

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

----S.497(5)---Bail, cancellation of---Principles---Bail can be cancelled if the same has been granted in capricious manner either without assigning reasons or on the basis of perverse or invalid reasons---Bail can also be cancelled if accused attempts to tamper with the evidence, hamper investigation, commits or attempts to commit same offence or if he absconds after grant of bail---Provisions of subsection (5) of S. 497, Cr.P.C are not punitive in nature and there is no compulsion for cancelling the bail unless the bail granting order is patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice or where accused is found to be misusing the concession of bail by extending threats or tampering with the prosecution case.

Tanveer Iqbal for Petitioner.

2013 Y L R 382

[Lahore]

Before Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

IDREES RAZA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.1265 and Murder Reference No.639 of 2006, heard on 14th December, 2011.

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

----Ss. 302(b), 324 & 337-F(v)---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Question was, whether the evidence which had not been believed to the extent of four acquitted co-accused, who were also accused of firing at the deceased and the injured, could be believed to the extent of accused---Such evidence could only be believed if the same was corroborated by any other independent piece of evidence---No recovery of any weapon of offence had been effected from one accused on his pointation---Recovery of a rifle from the other accused was in pursuance of a joint disclosure of both the accused and the crime empties secured from the spot were not found by the Forensic Science Laboratory to have been fired from the said rifle---Admission of accused before Police that the said rifle was the weapon of offence, was not admissible in evidence being a confession before the Police---Accused in their statements recorded under S.342, Cr.P.C. had denied their role in the occurrence and mere suggestions to Investigating Officers, reply of which was based on their opinion, was also not admissible in evidence---No specific motive had been alleged against the accused---No proceedings under Ss.87 and 88, Cr.P.C. had been initiated against the accused to prove their alleged abscondence---No corroborative piece of evidence thus was available on record for maintaining the conviction of accused---Accused were acquitted in circumstances.

Iftikhar Hussain v. The State 2004 SCMR 1185; Muhammad Tashfeen and others v. The State and others 2006 SCMR 577; Zulfiqar Ahmad v. The State 2006 PCr.LJ 91; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

(b) Criminal Trial---

----Appreciation of evidence---Whether a common set of ocular account can be used for recording acquittal and conviction of accused charged for the same offence---Principles.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

(c) Criminal trial---

---Motive--- Connotation--- Motive is a double edged weapon that cuts both ways---On the one hand it can be a cause of commission of an offence and simul-taneously it can be a reason for false implication of the accused in a case.

M.A. Zafar and Muhammad Shoaib Zafar for Appellants.

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

Ch. Farooq Haider for the Complainant.

Date of hearing: 14th December, 2011.

2013 Y L R 398

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MEHROOZ and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.10440-B and 9876-B of 2011, decided on 15th September, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/34---Qatl-e-amd, abetment---Bail, grant of---Further inquiry---Only allegation against accused was that he uttered certain words, in the presence of deceased's father and another person, which constituted the offence of conspiracy---Accused was not present at the time and place of occurrence and no overt act had been attributed to him---Accused could not be expected to have uttered the words constituting conspiracy in the presence of his enemies, who had injured his sons a day earlier---Case of accused being that of further inquiry, he was admitted to bail.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/34---Qatl-e-amd, abetment---Bail, grant of---Further inquiry---Accused had been allegedly present at the spot, armed with firearms and instigated other accused persons to fire at the deceased instead of firing at the deceased himself---Accused had been assigned the role of ineffective firing but weapon of offence had not been recovered from him---Accused had committed no overt act towards the deceased, hence his case was that of further inquiry---Accused was admitted to bail accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

Muhammad Sohail Dar and Muhammad Mehmood Chaudhary for Petitioners.

Malik Muhammad Nadeem for the Complainant.

Mirza Abid Majeed D.P.G. along with Muhammad Aslam Inspector for the State.

2013 Y L R 402

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD BILAL---Petitioner

Versus

MUHAMMAD ABBAS and others---Respondents

Criminal Miscellaneous No.17342-B of 2011, decided on 23rd January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/109/ 34---Attempt to commit qatl-e-amd, abetment---Bail, grant of---Non-recovery of firearm---Plea of alibi---Accused was alleged to have raised 'Lalkara' while his co-accused fired a shot at the complainant's son---Accused had not performed any overt act towards the occurrence and was shown to be armed with firearm and guarded his co-accused but non recovery of firearm from accused negated the allegation levelled in the F.I.R.---Police had collected only one empty from the place of occurrence, which was fired by co-accused at the deceased and recovery of such single empty further strengthened the case of accused that he did not fire at the time of occurrence---Accused had raised plea of alibi mentioning that at the time of occurrence he was offering prayers in a mosque, which fact was supported by the statements of witnesses and the police had verified the version of the accused and cleared him from the present case---Absconsion of accused was no ground for refusing bail when he had otherwise made out a case of bail from the facts of the case---Accused was admitted to bail accordingly.

Sabir Ali Padyar for Petitioner.

Muhammad Ishaque, D.P.G. with M. Rafique, A.S.-I. for Respondent.

2013 Y L R 406

[Lahore]

Before Malik Shahzad Ahmad Khan, J

GHULAM ABBAS---Petitioner

Versus

ABDUL GHAFOOR and another---Respondents

Criminal Miscellaneous No.8095-CB of 2011, decided on 19th September, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.376---Rape---Bail, cancellation of---Accused was named in the F.I.R. and was alleged to have committed the heinous offence of committing rape with a twelve years old girl---Allegation against accused was fully supported by the medico-legal report of the victim according to which victim's hymen was freshly torn and blood was coming out of the vagina at the time of examination---Accused could not establish any mala fide on part of complainant for his false involvement in the case---Medical report of accused showed that he was fit to commit sexual intercourse, therefore, amputation of one of his legs did not mean that allegations against him were baseless---Victim had also levelled allegation of rape against accused in her statement, recorded under S.161 Cr.P.C.---Bail granted by court below, being not sustainable in the eyes of law, was recalled and accused's bail stood cancelled.

Rai Muhammad Nawaz Kharal for Petitioner.

Arshad Mehmood Deputy Prosecutor-General for the State with Abid Hussain, A.S.-I.

Syed Faiz-ul-Hassan for Respondent along with Respondent No.1 in person.

2013 Y L R 431

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13044-B of 2011, decided on 13th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---Incomplete abduction---Accused was not nominated in the F.I.R. and occurrence was reported to the police after a delay of sixteen days---Alleged abduction remained incomplete and the chastity of the victim remained intact---Circumstances available on record made out a case for further inquiry---Bail petition of accused was accepted and accused was admitted to bail.

Malik Mati Ullah for Petitioner.

Naseem Ullah Khan Niazi for the Complainant.

Noor Ahmed Bhatti, DPP for the State.

Abdul Rehman, A.S.-I.

2013 Y L R 435

[Lahore]

Before Muhammad Anwaarul Haq, J

MUSHTAQ AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.564-B of 2012, decided on 24th January, 2012.

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---F.I.R. stated that dishonoured cheque was given by the accused to the complainant in the backdrop of a business deal of purchase of some crop, but there was no documentary evidence regarding the deal mentioned in the F.I.R.---Dishonest intention of accused could validly be determined by the Trial Court after recording of evidence---Case of accused fell within S. 497(2), Cr.P.C and was one of further inquiry into his guilt---Accused was in jail for more than three months, without any progress in his trial and offence with which he was charged did not fall within prohibitory clause of S.497, Cr.P.C---Bail petition of accused was accepted and he was admitted to bail.

Naseem Ullah Khan Niazi for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State with Basharat Hussain S.I., with record.

Nemo for the Complainant.

2013 Y L R 440

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

GHULAM MUSTAFA and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.640-B of 2012, decided on 1st February, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)/337-F(v)/337-L(2)/452/148/ 149---Causing hurts, house trespass, rioting armed with deadly weapons---Pre-arrest bail, grant of---Delay of five days in lodging the F.I.R. was not explained---No specific role had been ascribed to either of the accused---According to investigation made by DSP complainant party was the aggressor and offence under provisions of S.452, P.P.C. was not made out---F.I.R. appeared to be a counterblast to the civil suit instituted by the accused---One accused according to his birth certificate was only 16 years of age---No doubt the mala fide was a sine qua non for grant of pre-arrest bail, but court could even look and evaluate the same from the facts and circumstances of the case, which apparently was oozing in the present case---Apprehension of arrest of accused for ulterior motive like humiliation and unjustified harassment, was a sine qua non for bail before arrest---Interim bail already granted to accused was confirmed in circumstances.

Ajmal Khan v. Liaqaut Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 ref.

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

----S.498---Bail before arrest---Principles---Arrest for ulterior motive such as humiliation and unjustified harassment is a valid consideration for grant of pre-arrest bail.

Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 ref.

Mian Altaf Hussain Bhatti for Petitioners.

Moquddas Tahira, Additional Prosecutor-General for the State.

Rana Zahid Iqbal for the Complainant.

Feroz Khan, S.I. with the Police Record.

2013 Y L R 448

[Lahore]

Before Ch. Muhammad Tariq, J

AKMAL-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.8261/B of 2011, decided on 11th August, 2011.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.376---Rape---Interim Pre-arrest bail, recalling of---Accused was nominated in the F.I.R. with a specific role that he entered the house of the complainant and committed zina-bil-jabr with complainant's daughter (victim) after threatening her of dire consequences if she made hue and cry---Victim in her statement before the Magistrate repeated the contents of the F.I.R. and fully implicated the accused that he took advantage of loneliness and forcibly committed zina-bil-jabr with her---Accused's contention that case was lodged against him to pressurize him and his family to make a compromise in a civil dispute between the parties, was not believable as no one could put at stake her own honour and that of her family for petty matters---Accused's contention that there was no eye-witness mentioned in the F.I.R. was repelled as in such cases un-shaken solitary statement of victim was sufficient for conviction of accused person---Interim pre-arrest bail allowed to accused was recalled in circumstances.

Syed Ghaffar Abbas Zaidi and Syed Kashif Abbas Zaidi for Petitioners.

Khurram Khan, D.P.-G. with Muhammad Javed, S.I. for Respondents.

2013 Y L R 452

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SHAKRAN BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4745-B of 2012, decided on 26th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/380/147/148/201---Qatl-e-amd, theft in dwelling house, etc., rioting, rioting armed with deadly weapons, causing disappearance of evidence of offence, or giving false information to screen offender---Bail, grant of---Further inquiry---Allegation against the accused was that she along with co-accused threw kerosene oil on the deceased and burnt her---Contentions of the accused were that she had been involved in the case due to suspicion of the complainant; that the deceased had committed suicide due to a family dispute, and the investigating officer also concluded the same; that complainant had thrown a wider net to involve more accused persons in the crime report; that the accused had not been ascribed any specific role and only general allegations were attributed to all the accused persons, and that she being a woman was entitled to the concession of bail---Validity---Accused had been named in the F.I.R. but no specific role had been ascribed to her therein and allegations against all the accused persons were general in nature---Complainant had thrown a wider net at the time of lodging the report---Two accused persons had been found innocent during the course of investigation---Police investigation proved that the deceased had committed suicide due to a family dispute---Accused was a woman and she was not required by the police for further investigation---Bail petition of the accused was accepted and she was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muqtadir Akhtar for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab.

Zafar, S.-I. with the police record.

2013 Y L R 458

[Lahore]

Before Shahid Hameed Dar and Altaf Ibrahim Qureshi, JJ

MUHAMMAD RIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.653 and Murder Reference No.422 of 2006, heard on 30th June, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Improvements made by eye-witnesses including the complainant at the trial were calculated and crucial and could not be overlooked---Presence of eye-witnesses at the place and time of occurrence was not established---Medical evidence had not corroborated ocular testimony, rather it had severely jolted the same in many important aspects---Deceased lady had been killed much earlier than the time mentioned in the complaint---Ocular account was full of countless contradictions and discrepancies, which had badly marred the intrinsic worth of the testimonies of the eye-witnesses---Trial Court had passed the impugned order on conjectures and surmises and the same was set aside in circumstances---Accused was acquitted accordingly.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence, corrobora-tion of---Medical evidence can disclose the number of injuries, the seats of injuries, the weapon used for infliction of such injuries, probable time of occurrence or the other allied details, but it cannot identify the perpetrator of the crime.

Ghulam Subhani assisted by Saif-ur-Rehman Pran for Appellants.

Khurram Khan, Deputy Prosecutor General Punjab for the State.

Date of hearing: 30th June, 2011.

2013 Y L R 468

[Lahore]

Before Ch. Shahid Saeed, J

Syed MUHAMMAD SHAH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE FAISALABAD and 2 others---Respondents

Writ Petition No.675 of 2011, decided on 15th February, 2012.

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

----Art.84---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art.199--Constitutional petition---Suit for Specific performance of agreement to sell---Second comparison---Validity---Contention of the (defendant)/petitioner was that alleged agreement to sell was yet to be proved by the (plaintiff)/respondent and comparison of signatures already having been done, a second comparison would serve to frustrate the proceedings of the Trial Court---Validity---Comparison of signatures had already been conducted by the Forensic Science Laboratory, but the second comparison was not barred under the law and may be done keeping in view the requirements of the case---High Court directed the plaintiff to present the agreement to sell in original before the Trial Court so that the defendant could also have a look at the same---Constitutional petition was dismissed, accordingly.

Ch. Muhammad Jehangir Wahla for Petitioner.

Sardar Muhammad Ramzan and Ch. Muhammad Imran Bhatti for Respondents.

2013 Y L R 473

[Lahore]

Before Asad Munir, J

MAHBOOB HUSSAIN MALIK---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE---Respondent

Writ Petition No.22168 of 2010, decided on 20th October, 2010.

Punjab Rented Premises Act (VII of 2009)---

----S. 9(b)---Constitution of Pakistan Art.199---Constitutional petition---Non-compliance of deposit---Non-deposit of fine by landlord in terms of S.9 (b) of Punjab Rented Premises Act, 2009---Effect---Petitioner's (tenant) appeal against order of Trial Court allowing ejectment petition of the respondent (landlord) was pending before Appellate Court---Such ejectment petition was filed by the respondent (landlord) without complying with S.9 of the Punjab Rented Premises Act, 2009, and the respondent's (landlord) application before Appellate Court seeking leave to deposit the fine due under S.9(b) of the Act was allowed by the Appellate Court---Petitioner assailed such order of Appellate Court on the ground that if landlord did not deposit the fine at the time of filing of the ejectment petition, no indulgence could be shown to him for payment of the fine later---Validity---Omission or failure to deposit the requisite fine at the time of filing the ejectment petitioner was not fatal to the ejectment petition but could be remedied by the landlord if he deposited the fine later upon being allowed to do so by Trial Court---Allowing an opportunity to the respondent (landlord) to pay the requisite fine such perspective was unexceptionable---No legal or jurisdictional defect or any illegality or irregularity having been found in the impugned order, constitutional petition was dismissed.

Muhammad Fayaz and another v. Muhammad Yaqub Hussain and another PLD 2010 Lah. 197 fol.

Messrs Wateen Telecom (Pvt.) Ltd., through Attorney v. Malik Abdul Ahad and 2 others PLD 2009 Lah. 429 distinguished.

Ch. Waris Ali Saroya for Petitioner.

2013 Y L R 476

[Lahore]

Before Nasir Saeed Sheikh, J

TEHSIL COUNCIL KAMALIA through Tehsil Nazim---Petitioner

Versus

BOOTA MASIH and another---Respondents

Civil Revision No.1998 of 2003, heard on 29th September, 2010.

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

----S. 115--- Revision--- Limitation---Defendant objected to the revision filed by the plaintiff against the order of the Appellate Court on the ground that the revision was time-barred---Validity---Plaintiff had applied for a certified copy of the judgment dated 25-6-2002 on the same day, and the certified copy was delivered to the petitioner on 3-7-2002---Second proviso to S.115 of the C.P.C. had provided that a copy of the judgment passed by the subordinate court had to be supplied to the plaintiff by the court itself within three days of the passing of the judgment---Objection of limitation had been raised by the defendant and it was obligatory for the defendant to establish that the certified copy of impugned judgment was delivered within three days to the plaintiff in order to enable him to prefer the revision before the High Court within ninety days---No documentary proof of such fact had been produced by the defendant, therefore, presumption was that the Appellate Court did not supply such certified copy to the plaintiff in order to enable him to prefer revision before the High Court within ninety days of 25-6-2002---Objection of defendant was not sustainable---Revision was to be treated as within time.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 18 [as amended]---Pecuniary jurisdiction of Appellate Court---Appeal of plaintiff against order of Trial Court was dismissed on the ground that the Appellate Court did not have pecuniary jurisdiction to hear the appeal---Contention of plaintiff was that by virtue of amendments in the West Pakistan Civil Courts Ordinance, 1962 by Punjab Civil Courts Ordinance (Amendment) Act, 1986 and Punjab Civil Courts (Amendment) Ordinance, 2002 ; the jurisdiction of Appellate Court had been enhanced to Rupees 25,00,000 and accordingly the Appellate Court be ordered to decide the appeal on merits---Validity---Valuation for the purposes of pecuniary jurisdiction of Appellate Court had been enhanced from Rupees 200,000 to Rupees 25,00,000 by virtue of Punjab Civil Courts (Amendment) Ordinance, 2002, and as the valuation of the Appellate Court had been enhanced to Rupees 25,00,000 and as matter of amendment of the law with respect to the pecuniary jurisdiction of the civil courts was a procedural matter and the amendment would take retrospective effect, therefore, the judgment of the Appellate Court was set aside, and the Appellate Court was directed to decide the appeal filed by the plaintiff in accordance with law and on merits---Revision was accepted, accordingly.

Farman Ali Dewan and another v. Munsur Ali and others PLD 1962 Dacca 214 and Government of Sindh and others v. Abdul Majeed and another 1990 CLC 1891 ref.

Bashir v. Wazir Ali 1987 SCMR 978 foll.

Mian Muhammad Athar for Petitioner.

Muzaffar Iqbal Chaudhary for Respondent No.1.

Date of hearing: 29th September, 2010.

2013 Y L R 484

[Lahore]

Before Nasir Saeed Sheikh, J

ASGHAR KHAN---Petitioner

Versus

NATIONAL BANK OF PAKISTAN through President and others---Respondents

Civil Revision No.207 of 2004, decided on 15th October, 2010.

Civil Procedure Code (V of 1908)---

----O.VI, R.17 & O.VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction--Amendment of pleadings---Rejection of plaint---Petitioner was arrested on allegation of embezzlement from respondent Bank and criminal investigation ended in favour of the petitioner, after which petitioner filed declaratory suit against the respondent bank---Amount equal to the alleged embezzled amount had been deposited in the respondent bank by relatives of the petitioner---Suit of petitioner was dismissed by Trial Court and appeal against the same was dismissed by Appellate Court---Petitioner had contended in the suit that he was the owner of the amount deposited in the respondent bank---Contention of respondent bank was that suit for declaration was not maintainable as consequential relief of recovery of said amount was not prayed for---Held, that merely because a consequential relief for the recovery of amount in question had not been prayed for, did not render the plaint liable to be rejected as prayer of consequential relief could be added to the plaint through amendment application at any stage of the proceedings---Respondent bank in their written statement had admitted that deposit had been made by legal heirs of the petitioner---Order of Trial Court rejecting the plaint at the stage of dismissing the ad interim injunction was patently illegal---Case was remanded to Trial Court with the observation that the petitioner could move an application for the amendment of the plaint for adding further consequential relief, which may be available to him in view of the peculiar circumstances of the case---Revision was accepted, accordingly.

G. Haider Alghazali for Petitioner.

Muhammad Qamar-uz-Zaman for Respondents.

2013 Y L R 488

[Lahore]

Before Tariq Javaid, J

Mst. RABIA BIBI and another---Petitioners

Versus

MUHAMMAD MALIK and 6 others---Respondents

Civil Revision No.1816 of 1999, C.M.As. Nos. 495-C and 496-C of 2006, decided on 5th November, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.13---Limitation Act (IX of 1908), S.5---Applications for setting aside of ex parte proceedings and condonation of delay---Application for setting aside ex parte proceedings was filed after delay of more than four years---Petitioner contended that no cause list was served on him and he had no intimation of the fixation of both said dates of hearing---Validity---Delay in filing the application for setting aside ex parte proceedings was not satisfactorily explained---Matter was an old one and was pending before Trial Court after remand from the High Court---Revision was dismissed with the direction that case be decided expeditiously.

Farooq Amjad Meer for Petitioners.

Farrukh Mehmood Solehria for Respondents.

2013 Y L R 491

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

MUHAMMAD KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.610 of 2007, heard on 13th October, 2011.

Penal Code (XLV of 1860)---

----Ss. 224, 225/149, 148/149, 353/149 & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S.7(h)---Resistance or obstruction to lawful apprehension, rioting, assault or criminal force to deter public servant from discharge of his duty, hurt---Appreciation of evidence---Probability that a distorted story had been fabricated by the prosecution witnesses to give coverage to their unlawful act of having raided the house of the accused without fulfilment of the requisite legal requirements of law, could not be ruled out which had given rise to a strong impression as to the correctness of the defence version preferred by the accused during their statements recorded under S.342, Cr.P.C.---Cross-examination on the prosecution witnesses by defence was also consonant with the defence plea of the accused---Ocular testimony was in direct conflict with medical evidence---Prosecution had not set out the motive of the incident honestly---Police had failed to justify the action of raid---Ocular evidence in the absence of any corroboratory evidence could not be relied upon---Accused were given benefit of doubt and acquitted in circumstances.

Munir Ahmad Bhatti for Appellants

Khurram Khan Deputy Prosecutor-General Punjab for the State.

Date of hearing: 13th October, 2011.

2013 Y L R 499

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUMTAZ ALI---Petitioner

Versus

GHULAM HUSSAIN and 4 others---Respondents

Civil Revision No.1882 of 2010, decided on 23rd June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 54,55 & 56(a)---Suit for perpetual and mandatory injunction---Suit of petitioner was dismissed by Trial Court on the ground that suit for permanent injunction was not maintainable till the partition of the property, and order of Trial Court was affirmed by Appellate Court---Petitioner contended that respondents had made statements confirming that they will sell the property according to the share in their possession, and will not sell any property in excess of their share as such Trial Court should have decreed the suit as there was no need to record any further evidence---Validity---Where a specific remedy was available, suit under S.56(a) of the Specific Relief Act, 1877 was not maintainable, but in the present case, petitioner was claiming that he was in possession of the property according to his own share, and although share of petitioner was unpartitioned, he had every right to retain the possession---Grievance of petitioner being only that respondents should not eject him from the property in his possession , petitioner was entitled for the said relief when it was admitted that the petitioner and respondents were joint-owners of suit property---Trial Court had dismissed the suit without attending to such aspect of the case---Dismissal of suit by court below meant that the court had allowed the respondents to dispossess the petitioner forcibly without due process of law---High Court modified judgments of the courts below to the extent that the petitioner should not be dispossessed forcibly except in due course of law---Revision was allowed , accordingly.

Muhammad Ikram Chaudhry for Petitioner.

Imran Sarwar for Respondents. Nos. 1 and 2.

2013 Y L R 503

[Lahore]

Before Ch. Muhammad Tariq, J

ZULQARNAIN---Petitioner

Versus

SNGPL through General Manager and 2 others---Respondents

Civil Revision No.2427 of 2010, decided on 29th October, 2010.

Civil Procedure Code (V of 1908)---

----O.XLIII, R. 3---Appeal of petitioner was dismissed by Appellate Court on the ground that the petitioner did not issue notices to the respondent before the filing of the appeal and hence, had not complied with provisions of O.XLIII, R.3, C.P.C.---Validity---Perusal of record revealed that petitioner had served the respondent with legal notice that was sent through post and postal receipts duly certified by the Post Master were annexed with the civil revision---Contention of petitioner stood proved, in the light of such documents---High Court set aside the order of Appellate Court and case was remanded to the Trial Court for decision on merits---Revision was accepted accordingly.

Nadeem Shibli for Petitioner.

Umer Sharif for Respondent No.1.

2013 Y L R 508

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ZAFAR and others---Appellant

Versus

Raja GHULAM ALI BHATTI---Respondent

R.S.A. No.6 of 2007/BWP, decided on 11th January, 2012.

(a) Suit for damages---

----Vehicle purchased by plaintiff from defendant was later on seized by Customs authorities due to non-payment of customs duty---Plaintiff's claim for damages and expenditure incurred on getting back such vehicle---Proof---Plaintiff was bound to plead in plaint specifically detail of such expenditure with assertion that defendant had given him a defective vehicle and lead evidence to prove the same---No such specific pleadings and evidence was available on record---Suit was dismissed in circumstances.

Federation of Pakistan v. Public at large 1988 SCMR 2041 ref.

(b) Pleadings---

----Pleadings without proof---Effect.

Pleadings cannot be given weight of evidence till the time pleadings are not substantiated through evidence. Pleadings are worthless without evidence, if not admitted by the other party.

Ch. Naseer Ahmad for Appellants.

Ijaz Ahmad Ansari for Respondent.

Date of hearing: 11th January, 2012.

2013 Y L R 512

[Lahore]

Before Amin-ud-Din Khan, J

TAUQEER AHMED and another---Petitioners

Versus

MUHAMMAD ZAMAN---Respondent

Civil Revision No.392 of 2012, heard on 24th May, 2012.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession of immovable property was dismissed---Contention of the plaintiffs was that the Trial Court misread evidence produced by them---Validity---Trial Court had ignored the voluminous evidence produced by the plaintiffs and it was not denied by the defendants that the plaintiff was the owner of the suit property---Witness who made statement with regard to taking of the illegal possession by the defendant had not been specifically cross-examined on the said point by the defendant, and therefore, such portion of the witness would be presumed to be admitted by the defendant under law---Plaintiffs had proved their case and the findings of the Trial Court were a result of misreading and non-reading of evidence---High Court set aside decree of Trial Court and decreed the suit of the plaintiffs---Revision was allowed, in circumstances.

Qadeer Ahmed Warraich for Petitioners.

Ch. Aamir Rehman for Respondent.

Date of hearing: 24th May, 2012.

2013 Y L R 517

[Lahore]

Before Nasir Saeed Sheikh, J

MAQBOOL AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.21466 of 2010, decided on 8th June, 2011.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Specific Relief Act (I of 1877) Ss. 12 & 55---Constitution of Pakistan, Art. 199--- Constitutional petition---Amendment in plaint---Suit for specific performance of agreement to sell immovable property and permanent injunction---Application for amendment in date of alleged agreement, khasra, khewat and mutation numbers of suit-land given in plaint---Application was allowed to the extent of date of alleged agreement only---Validity---Defendant had denied agreement to sell for the specific performance of which plaintiff instituted the suit, and description of property to be added through proposed amendment would make no difference to plea raised by defendant in his written statement---Trial Court allowed plaintiff to correct date of agreement to sell and correction of description of property would not have changed complexion of the suit which would remain a suit for specific performance---Courts below should have allowed proposed amendment which entailed more detailed description of suit propriety and correction of khasra and khewat numbers---Constitutional petition was allowed, in circumstances.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Mst. Rahim Noor v. Mst. Salim Bibi and 2 others PLD 1992 SC 30; Chaudhary Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja and others PLD 1994 Lah. 252; Government of N.-W.F.P and another v. Gul Muhammad Khan and 5 others 1996 SCMR 1858 and Mst. Mumtaz Begum and 8 others v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2004 CLC 697 rel.

Mian Muhammad Saeed for Petitioner.

Agha Abul Hassan Arif for Respondent.

2013 Y L R 524

[Lahore]

Before Mazhar Iqbal Sidhu, J

RAB NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14333-B of 2011, decided on 18th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 147 & 149---Qatl-e-amd, rioting---Bail, refusal of---Accused had led the entire incident, which was a pre-planned occurrence on account of the motive set up in the F.I.R.---Accused was alleged to have raised a Lalkara after which co-accused had started beating up the deceased---Deceased got himself released and ran away from the spot but was followed and upon falling down to the ground, accused held his legs to facilitate the co-accused, who throttled the deceased to death---Accused had been found involved during the investigation and police had also taken into possession, turban of the accused which fell on the ground at the time of the occurrence---Sufficient material was available against the accused and he had been connected with the commission of the alleged crime---Accused's old age by itself was no ground for grant of bail and no evidence had been brought to show that he was feeble---Accused having failed to make out a case for grant of bail , his bail petition was dismissed.

Ghulam Farid Sanotra for Petitioner.

Noor Ahmad Bhatti, DPP for the State with Mumtaz, S.-I. with record.

Rana Rashid Akram Khan for the Complainant.

2013 Y L R 528

[Lahore]

Before Sh. Najam ul Hasan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZULFIQAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1943 of 2006 and Murder Reference No.27 of 2007, heard on 12th June, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Complainant, widow of the deceased, was a natural witness of the occurrence---F.I.R. had been promptly lodged at the Police Station containing the name of accused, his role, weapon used by him and the injury caused to the deceased---Medical evidence had fully corroborated the ocular testimony---Defence evidence was far-fetched and not worth reliance---Parties already knew each other---Occurrence had taken place in broad-daylight in a busy place---False implication of accused was out of question---Motive was proved---Conviction of accused was maintained---No dispute or ill-will existed between the parties---Occurrence was the result of a sudden flare up on a petty matter---Accused, despite being armed with a double barrel gun had only fired a single shot at the deceased and did not fire another shot---Accused was 20 years old at the time of incident---Death sentence of accused was reduced to imprisonment for life in circumstances.

Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 and Ghulam Sarwar and others v. Sajid Ullah and others 2005 SCMR 1054 ref.

Syed Ijaz Qutab for Appellant.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Mian Mehmood Ahmed Kasuri for the Complainant.

Date of hearing: 12th June, 2012.

2013 Y L R 536

[Lahore]

Before Muhammad Anwaarul Haq, J

SHAHADAT ALI alias CHHADI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.17663-B of 2011, decided on 18th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/ 365/ 211/ 148/ 149---Qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, false charge of offence made with intent to injure, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Alleged fake police encounter---F.I.R. for the occurrence had been registered which was cancelled by the Area Magistrate after which complainant filed a private complaint, resulting in the present F.I.R.---Co-accused (police official) , who had been attributed the main role, had been acquitted after regular trial was conducted on basis of the private complaint---Trial Court while acquitting the co-accused had found that the police encounter was genuine---Role attributed to the accused (police official) was only to the extent of calling the deceased at the place of occurrence with connivance of his co-accused (police officials) and aerial firing after the occurrence---Accused had not been found convicted in any criminal case in the past and his mere abscondence was not a sufficient ground to refuse him bail when otherwise a good case for bail was made out in his favour---Case against accused called for further inquiry into his guilt---Bail application of accused was allowed and he was admitted to bail.

Mitho Pitafi v. The State 2009 SCMR 299 ref.

Muhammad Ahsan Nizami for Petitioner.

Ch. Muhammad Akram Tahir, D.D.P.P. for the State with Niaz Ahmad, A.S.-I.

Sarfraz Khan Gondal for the Complainant.

2013 Y L R 541

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ABDUL QAYYUM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2485-B of 2011/BWP, decided on 8th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---According to the F.I.R., complainant had allegedly handed over gold worth Rs.68,80,000 to the accused as trust but perusal of civil suit filed by complainant, relating to the same matter, revealed that complainant had taken a different stance by stating that accused had obtained a loan of the same amount from the complainant---No witness had been mentioned in the F.I.R. in whose presence gold was handed over to the accused as trust---Complainant had lodged two other F.I.Rs. against the accused concerning the same matter, but accused had managed to get bail in both of them---Offence with which accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C---Contention of complainant was that accused had issued 43 cheques in settlement of the amount of gold, and accused had filed a civil suit regarding the cheques in question, which was pending adjudication, and it was to be decided by the civil court whether cheques were issued as payment for the gold or they were issued without any consideration---Bail petition of accused was accepted and he was admitted to bail.

Malik Muhammad Aslam Channer for Petitioner.

Muhammad Sharif Bhatti for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General.

Ahmad, S.-I. and Muhammad Azam, A.S.-I. with record.

2013 Y L R 547

[Lahore]

Before Sardar Tariq Masood and Mehmood Maqbool Bajwa, JJ

MUHAMMAD JAHANGIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12518-B of 2011, decided on 4th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Grudge of police officials against accused---No previous criminal record---Accused and his mother had been illegally detained by police officials of concerned police station, prior to registration of present F.I.R., and were only recovered when High Court deputed a bailiff in response to a constitutional petition---F.I.R. was registered against concerned police officials when bailiff sent his report to the Area District Police Officer (DPO) because of which police officials of said station must have borne a grudge against the accused and his family, which called for further inquiry into accused's case---Accused had no previous criminal record and narcotics allegedly recovered from accused slightly exceeded the upper limit prescribed in S. 9(b) of Control of Narcotic Substances Act, 1997, therefore, whether maximum punishment of fourteen years was to be awarded to accused or not , also called for further inquiry into the matter---Accused being behind bars since about four months and no more required by the police for investigation, he was admitted to bail.

Syed Faiz-ul-Hassan for Petitioner.

Khurram Khan, D.P.G. for Respondents.

2013 Y L R 565

[Lahore]

Before Syed Iftikhar Hussain Shah, J

NOORANG---Petitioner

Versus

UMAR DARAZ and others---Respondents

C.Ms. Nos.1156-C/R and 656-C/95 in Civil Revision No.474-D of 1994, decided on 4th December, 2012.

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

----Ss. 12(2), 141 & O.IX R 13---Application under S. 12(2), C.P.C. was dismissed for non-appearance of applicant---Procedure---Applicant sought restoration of said application on the ground that his counsel had passed away and he therefore had no knowledge as to the fixation of application for hearing---Validity---Procedure for deciding application under S. 12(2), C.P.C. was the same which was applicable for adjudication of disputes and even otherwise under S. 141, C.P.C., procedure prescribed in C.P.C. in respect of suits was to be followed as far it could be made applicable in all proceedings in any court of civil jurisdiction---If application under S.12(2), C.P.C. was dismissed for non-appearance, then procedure prescribed for restoration of the same under O.IX, C.P.C. will be applicable for the restoration of the application---Ground taken by applicant in his restoration application was supported by affidavit and same was within time---High Court allowed application for restoration of application under S. 12(2), C.P.C. in circumstances.

(b) Administration of justice---

----Law favoured adjudication of disputes among litigants on merits and technicalities should not be made a hurdle in the way of justice.

Syed Muhammad Ali Gilani for Applicant.

Ch. Habib Ullah Nehang for Respondents.

2013 Y L R 570

[Lahore]

Before Rauf Ahmad Sheikh and Sagheer Ahmad Qadri, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.240 and Murder Reference No.496 of 2007, heard on 9th February, 2011.

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

----Ss.302(b)/34/109---Qatl-e-amd, common intention, abetment---Appreciation of evidence---Ocular account was brought on record by prosecution witnesses who were closely related to the deceased as well as the complainant---Presence of said witnesses was doubtful at the alleged place of occurrence---Place of occurrence was situated on the road side which was at a long distance from the place of residence of the complainant and the deceased---Incident was an unwitnessed occurrence---Statement of complainant and prosecution witness that even after receiving four fire shots, the deceased was capable of standing, was contradicted by the medical evidence brought on record by the prosecution itself---Witnesses being not present at the spot, occurrence might have taken place much before the time as suggested by the prosecution---Very strong corroborative evidence was required for the statements of two witnesses who were related, interested and chance witnesses---Whole of the prosecution version was built up after dead body was found---Prosecu-tion being not able to prove the charge against accused beyond any reasonable shadow of doubt, conviction passed by the Trial Court against accused, was not sustainable in the eyes of law---Same was set aside and accused was acquitted of the charge and was directed to be released, in circumstances.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

(b) Criminal trial---

----Appreciation of evidence---When two interpretations could be drawn out of one preposition, one favouring the accused was to be adopted.

(c) Criminal trial---

----Motive---Motive, if alleged, have to be proved otherwise an adverse inference could be drawn---Even otherwise, motive also was taken as double edged weapon as it cut either side.

(d) Criminal trial---

----Benefit of doubt---Probabilities howsoever of strong character could not take the place of proof, which was required to bring home guilt of accused beyond any reasonable shadow of doubt---One dent in the prosecution story having substance was sufficient to create a doubt in the prosecution version; and its benefit could be extended in favour of accused for safe administration of justice.

Raja Muhammad Bashir for Appellant.

Haider Mehmood Mirza for the Complainant.

Ch. Muhammad Waheed Khan, D.P.-G. for the State.

Date of hearing: 9th February, 2011.

2013 Y L R 585

[Lahore]

Before Ijaz Ahmad Chaudhry C.J. and Mazhar Iqbal Sidhu, J

ABID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1138 and Murder Reference No.578 of 2006, heard on 6th June, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Matter had been reported to the Police without any delay in the given circumstances---Eye-witnesses were related to the deceased, but record did not indicate any ill-will or malice on their part for false involvement of accused in the case---Ocular testimony was consistent without any material contradiction or improvement---Presence of eye-witnesses at the scene of occurrence had been established and they had seen the same---Reports of Chemical Examiner and Serologist about the blood found on the blade of the hatchet recovered at the instance of accused, were in positive---Medical evidence was in consonance with ocular account of incident---Parties had not spoken the whole truth---No previous enmity existed between the parties---Motive had been found false and to the contrary it had been brought on record in a dimmy and dingy manner that deceased had illicit intimacy with the wife of the brother of accused and accused had committed the murder of the deceased due to family honour---Conviction of accused was maintained, but sentence of death awarded to him by Trial Court was converted into imprisonment for life in circumstances.

Zubair Afzal Rana for Appellant.

Tariq Javed, DDPA for the State.

Complainant in person.

Date of hearing: 6th June, 2011.

2013 Y L R 598

[Lahore]

Before Sagheer Ahmad Qadri and Mehmood Maqbool Bajwa, JJ

ZAFAR IQBAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.746 of 2007, heard on 3rd April, 2012.

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

----Ss.9(c) & 48---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Allegation against accused (appellant) was that he was carrying a bucket of narcotic on his bicycle and on seeing the police contingent, he left his bicycle and managed to escape---Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Contentions of the accused were that there were material contradictions between the evidence of the complainant and recovery witness, who were both police officials; that story of prosecution regarding escape of accused in the presence of eleven police officials did not appeal to reason, and that the complainant was also the Investigating Officer of the case, which fact by itself was sufficient to suggest partiality of the investigation---Validity---Prosecution had not stated that accused was known to the witnesses (police officials) previously, therefore, identity of accused became doubtful as he was not apprehended from the spot---Accused had categorically denied the factum of coming to the place of the alleged incident, throwing away his bicycle and managing to escape, in view of which convincing and corroborative evidence was required to prove the identity of the accused as the person accused for the offence beyond any shadow of doubt---Witnesses (police officials) had not disclosed their source of information regarding their knowledge about the particulars of the accused being the correct person accused for the offence---Prosecution failed to establish that the contraband material allegedly recovered from the accused was a narcotic as safe custody of the sample parcel was seriously doubtful---Police official who had transmitted the sealed sample parcel to the Chemical Examiner was not produced by the prosecution as a witness---Date on which police official handed over the sample parcel to the Chemical Examiner was different from the date mentioned on the report of the Chemical Examiner---Prosecution had failed to produce any evidence regarding safe custody of the sample parcel, therefore, it was not safe under criminal administration of justice to endorse conviction and sentence awarded to the accused---Alleged recovery of huge quantity of contraband material by itself was not sufficient to prove the charge against the accused, which fact was required to be established by the prosecution beyond shadow of doubt by producing convincing and credit worthy evidence---Appeal of accused was accepted, impugned order of Trial Court was set aside and accused was acquitted of the charge by extending him benefit of doubt.

Muhammad Abbas v. The State 2006 YLR 2378; Muhammad Hashim v. The State PLD 2004 SC 856; Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 and Allah Bachaya and another v. The State PLD 2008 SC 349 rel.

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

----Ss.9(c) & 48---Possession of narcotic---Appreciation of evidence---Interpretation of provisions in the Control of Narcotic Substances Act, 1997---Scope---Provisions of the Control of Narcotic Substances Act, 1997, provided stringent punishment and as such same provisions were to be construed strictly.

Muhammad Abbas v. The State 2006 YLR 2378 rel.

(c) Criminal trial---

----Appreciation of evidence---Proof---Suspicion, however, strong could not take the place of proof.

(d) Criminal trial---

----Appreciation of evidence---Benefit of doubt---Scope---For extending benefit of doubt to an accused there must not be so many circumstances and even a single circumstance creating reasonable doubt about veracity of prosecution version would be sufficient to grant benefit of doubt to the accused, not as a matter of concession or grace but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 and Allah Bachaya and another v. The State PLD 2008 SC 349 rel.

Ch. Riasat Ali for Appellant.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Date of hearing: 3rd April, 2012.

2013 Y L R 607

[Lahore]

Before Nasir Saeed Sheikh, J

Mst. NAEEMA MAQBOOL---Petitioner

Versus

MUHAMMAD BOOTA---Respondent

Civil Revisions Nos.2009 and 2010 of 2003, heard on 1st November, 2010.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 5---Suit for possession through pre-emption---Making of Talbs---Talb-i-Muwathibat and Talb-i-Ishhad---Suit of plaintiff was decreed by Trial Court and said decree was set aside by Appellate Court---Contention of the plaintiff was that the Appellate Court while recording findings on the issue regarding the making of Talbs by the plaintiff, had misread the evidence---Validity---Appellate Court while recording its finding on whether the plaintiff had complied with the requirements of Talb-i-Muwathibat and Talb-i-Ishhad, had referred to the certified copy of the record of rights which had been produced by the plaintiff herself----Certified copy of said document, it was noted, was obtained by and on behalf of the plaintiff on 2-7-1999---Appellate Court had made use of the said document only for the purpose of ascertaining the acquiring of knowledge by the plaintiff of the mutations in questions and had found that plaintiff had made a false claim in her suit of coming to know about the said mutations on 21-8-1999 and the resultant making of Talb-i-Muwathibat on the said date---Plaintiff having produced said document herself, could not be allowed to argue that the document was inadmissible and had no evidentiary value---Findings of the Appel-late Court were in accordance with law and were based upon evidence---Revision was dismissed.

Ch. Riyasat Ali for Petitioner.

Ch. Dost Muhammad Kahoot for Respondent.

Date of hearing: 1st November, 2010.

2013 Y L R 624

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD WAQAR---Petitioner

Versus

JUSTICE OF PEACE MULTAN and 4 others---Respondents

Writ Petition No.11086 of 2011, decided on 13th September, 2011.

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition--Registration of F.I.R.---Justice of Peace, powers of---Scope---Dispute concerning possession of property---Petitioner moved application under Ss. 22-A & 22-B Cr.P.C. for registration of F.I.R., but same was dismissed by the Justice of Peace---Contention of petitioner was that respondents were his tenants and on demand of rent, they entered his house and tortured his family, damaged household articles and committed theft; that respondents had filed a frivolous civil suit against him and obtained interim injunction by producing forged and fictitious Fard Malkiat, and that Justice of Peace had committed irregularity by refusing to give direction for registration of F.I.R. against respondents---Validity---Neither any specific incident regarding trespass, causing torture, mischief or theft was provided by the petitioner, nor he mentioned any specific date or time of occurrence in his application for registration of F.I.R.---General allegation that respondents resorted to said activities created reasonable doubt as to its correctness---Contention of petitioner that respondents got an injunction on the basis of forged and fictitious Fard Malkiat showed that alleged offence was committed in relation to the proceedings of the court, so the order for issuance of direction to register the case could have been passed by the court under S. 195(1)(c) of Cr.P.C.---Dispute concerning possession of property existed between the parties and Justice of Peace had correctly found that there was possibility of submission of application under Ss.22-A and 22-B, Cr.P.C. to put pressure on the respondents---Contention of petitioner that Justice of Peace was authorized only to pass an order for registration of the case and could not reject his request, was devoid of force as Justice of Peace not only had the authority to issue direction for registration of case but also to decline such a request, if it was proved that request was made with ulterior motives or without reasonable grounds---Petitioner had the remedy in form of private complaint regarding alleged commission of offences by respondents and could move an application before the concerned court regarding submission of forged Fard Malkiat---Justice of Peace was justified in refusing to issue the direction for registration of the case---Constitutional petition was dismissed accordingly.

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

----Ss. 22-A & 22-B---Registration of F.I.R.---Powers of Justice of the Peace---Scope---Justice of Peace not only has the authority to issue direction for registration of case but also to decline such a request, if it was proved that request was made with ulterior motives or without reasonable grounds.

Pir Muhammad Asif Rafi for Petitioner.

Mirza Muhammad Saleem Baig, Addl. A.-G. for Respondent No.2.

Arshad, Inspector and Sarwar, S.I. with record.

2013 Y L R 629

[Lahore]

Before Ali Baqar Najafi, J

MANZOOR AHMED---Petitioner

Versus

D.P.O. and others---Respondents

Writ Petition No.1203 of 2011, heard on 6th September, 2012.

Police Order (22 of 2002)---

----Art. 18---Constitution of Pakistan, Art. 199---Constitutional petition---Change of investigation---Scope---Complainant moved application before District Police Officer (DPO) showing lack of confidence in the investigating officer whereupon the Deputy Superintendent of Police (DSP) was deputed to conduct the inquiry---Legality---Under Article 18 of Police Order, 2002 investigation could only be changed by the Board constituted under the said Article, comprising of Senior Superintendent of Police (SSP) and two Superintendents of Police (SP); one being in charge of the investigation of the concerned district---Investigation conducted by the Deputy Superintendent of Police (DSP) in the present case was without lawful authority---Under Art. 18(5) of Police Order, 2002, the District Police Officer (DPO) himself had no power to interfere with the process of investigation, therefore, no question of its further delegation could possibly arise in respect of investigation---Constitutional petition was allowed and investigation conducted by Deputy Superintendent of Police (DSP) was declared as unlawful.

Mirza Jahangeer Baig v. D.I.G. of Police, Gujranwala Range and 7 others 2007 MLD 579; Aziz Ahmad v. Provincial Police Officer (I.G.P), Punjab Lahore and 6 others PLD 2005 Lahore 185 and 2006 MLD 501 ref.

Muhammad Ilyas Siddiqui for Appellants.

Saif-ur-Rehman, A.A.-G. with Dar Ali Khan, D.P.O. Jhelum and Zulfiqar Ahmed, DSP (Legal) for Respondents.

Zamir Hussain Malik for the Complainant.

Date of hearing: 6th September, 2012.

2013 Y L R 638

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

NADEEM alias DINA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.701 and Murder Reference No.380 of 2006, heard on 29th June, 2011.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---No previous enmity existed between the parties---Motive set up by the prosecution had been proved---Complainant, no doubt was not an eye-witness of the occurrence, but two eye-witnesses who saw the incident had intimated the entire occurrence to the complainant; and they had also made statements during the trial---Source of information about the occurrence, in circumstances, could not be said to be non-existent---Both the prosecution witnesses, no doubt, were related to the deceased, but accused was also related to them; and in absence of any previous enmity between the parties, especially their presence at the place of occurrence being natural, testimony of said prosecution witnesses could not be disbelieved---Time between the injury and the death as well as between the death and the post-mortem, both commensurated with the timing of incident---Medical evidence fully corroborated the prosecution case and no contradiction or inconsistency had been found therein---Pistol allegedly used in occurrence was found by Ballistic Expert in working order and led of bullet was taken out from the dead body of the deceased; it was believed in circumstances that the weapon used in the commission of crime was firearm---No loophole existed in proving the prosecution case against accused beyond shadow of doubt---In absence of any ground of mitigation in the case, sentence of death awarded to accused, was confirmed, in circumstances.

Azam Nazir Tarar for Appellant.

Ch. Muhammad Anees Khatana for the Complainant.

Tariq Javed D.D.P.P. or the State.

2013 Y L R 646

[Lahore]

Before Abdus Sattar Asghar, J

ZAMINDAR KHAN through Legal Heirs---Appellant

Versus

SAROO through Legal Heir and others---Respondents

Regular Second Appeal No.226 of 1980, heard on 20th November, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.120---Declaration of title---Limitation---Plaintiff assailed sale of suit-land made by his brother in favour of vendees---Trial Court decreed the suit but Lower Appellate Court allowed appeal and dismissed the suit---Validity---Registered sale-deed was attested on 20-2-1968, possession of suit-land was delivered to vendees at the same time and alienation was also incorporated in revenue record through mutation attested on 27-8-1968---Vendees also entered into exchange of suit-land with defendants vide mutation dated 5-2-1969, including exchange of possession---Knowledge of plaintiff with regard to transaction in question from the very outset could not be doubted---In terms of Art. 120 of Limitation Act, 1908, plaintiff could have challenged the transaction with a stipulated period of six years from the date of registration of sale in question which was 20-2-1968, whereas suit was lodged by him on 21-2-1975, after about seven years of accrual of cause of action---Suit filed by plaintiff was barred by limitation and findings of Lower Appellate Court in such regard were salutary leaving no scope for interference---High Court did not find any legal or factual infirmity in the judgment and decree passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 ref.

Mian Muhammad Ismail Thaheem for Appellant.

Hafeez-ur-Rehman Mirza for Respondents.

Date of hearing: 20th November, 2012.

2013 Y L R 672

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD AZAM---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Criminal Revision No.16 of 2009, heard on 14th September, 2012.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, common object---Dismissal of complaint---Complaint was dismissed mainly on account of two reasons that there were contradictions in the cursory statements of the prosecution witnesses, with the averments of F.I.R. and that accused were absconders---Validity---Contents of the complaint as well as cursory statements and other material adduced by the witnesses of the complainant reflected that those were in line with the story advanced in the crime report lodged by complainant soon after the occurrence---Trial Court while giving finding on that score, had committed grave misreading and non-reading of material available on record, which in ordinary course of law, was not expected from such a senior judicial officer to act in such a casual manner---Accused, after lodging of F.I.R., had absconded; and after initiating proceedings under Ss.87/88, Cr.P.C. they were declared proclaimed offenders---On arrest of one of the accused persons, other accused persons got pre-arrest bail, and subsequently withdrew the same on account of having been declared innocent; and when the complainant came to know about that fact, he filed complaint, wherein accused did not appear and Police reported that they were fugitive from the law---Trial Court, in circumstances was not justified in dismissing the complaint for the reason that the matter was old one and accused were already declared proclaimed offenders---Findings of the Trial Court on that score were contrary to scheme of law on the subject---Findings of the Trial Court that by issuing process against accused person, it could create delay in disposal of trial against accused being against the norms of criminal justice, was not sustainable in the eyes of law---Impugned order of the Trial Court was set aside and as a result whereof the complaint filed by the complainant would be deemed to be pending before the Trial Court---Trial Court was directed to conclude the trial within three months from the receipt of said order, in circum-stances.

Ch. Ghulam Mustafa for Petitioner.

Mian Muhammad Awais Mazhar for the State.

Sikandar Zulqarnain Saleem for Respondents.

Date of hearing: 14th September, 2012.

2013 Y L R 681

[Lahore]

Before Manzoor Ahmad Malik, J

FAHAD alias FAHDU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15870-B of 2012, decided on 22nd November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/147/149---Qatl-e-amd, rioting, unlawful assembly---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Non-recovery of any incriminating article---Effect---Accused and co-accused persons allegedly took away complainant's son/ deceased and later hung him---Specific allegation against accused was that he caught hold of deceased by his arms and legs before he was hung---Complainant allegedly witnessed the occurrence through the hole of a door---Matter was reported after a delay of 9 hours and it was for the Trial Court to determine, whether such delay had any bearing on the prosecution case---Accused was not alleged to be armed with any weapon at the time of alleged occurrence---During investigation nothing was recovered from the accused---Accused was no more required for further investigation---Motive was alleged against co-accused and not against the accused---Case was one of further inquiry---Accused was admitted to bail, in circumstances.

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

----Ss. 497 & 173---Bail---Submission of challan---Commencement of trial---Effect---Mere submission of challan and commencement of trial was no ground for refusal of bail, if otherwise the accused was entitled to the same.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

Muhammad Younas Bhullar for Petitioner.

Arshad Mahmood, Deputy Prosecutor-General for the State.

Amir Shahbaz Mir, for the Complainant.

Javed Akhtar S.I. with record.

2013 Y L R 692

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD RAFIQUE---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.13838-B and 14047-B of 2011, decided on 2nd November, 2011.

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, acts done by several persons in furtherance of common intention---Ad interim pre-arrest bail, confirmation of---Further inquiry---Case of three versions---First version was of the complainant who, according to the F.I.R. alleged that two unknown accused were seen by him and other eye-witnesses leaving the spot after having committed the murder of the deceased; second version was the private complaint by complainant, almost two months after the occurrence, against deceased's wife with the assertion that he and other eye-witnesses had witnessed deceased's wife firing at the deceased committing his murder and third version was private complaint by paternal nephew of the deceased against accused, co-accused and deceased's wife with the assertion that accused had fired into the chest of the deceased and thereby committed his murder---Accused's name did not figure in the investigation record---Complainant and eye-witnesses of the F.I.R. had stated, in the first private complaint before Trial Court that deceased had been done to death by deceased's wife---Second private complaint was an attempt to eclipse the proceedings qua the challan case and the first private complaint, as new set of eye-witnesses were presented, who had neither joined the investigation nor stated anything against the accused during the course of investigation---Accused's case constituted need for further inquiry into his guilt and his false implication in the case due to hidden motives of the complainants could not be ruled out and as to which of the three versions was probable or nearer to the truth could only be determined by Trial Court after recording evidence of the parties during trial---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, acts done by several persons in furtherance of common intention---Bail, grant of---Further inquiry---Case of three versions---First version was of complainant who according to the F.I.R. alleged that two unknown accused were seen by him and other eye-witnesses leaving the spot after having committed the murder of the deceased; second version was private complaint by complainant, almost two months after the occurrence, against deceased's wife with the assertion that he and other eye-witnesses had witnessed deceased's wife firing at the deceased committing his murder and third version was private complaint by paternal nephew of the deceased against accused, co-accused and deceased's wife with the assertion that co-accused had fired into the scalp of the deceased and thereby committed his murder---Evidence provided by complainant against co-accused during investigation at the most hinted at a probability qua the latter, being an abettor of the crime---Complainant and eye-witnesses of the F.I.R. had stated, in the first private complaint before Trial Court that deceased had been done to death by deceased's wife---Second private complaint was an attempt to eclipse the proceedings qua the challan case and the first private complaint as new set of eye-witnesses were presented who had neither joined the investigation nor stated anything against the accused during the course of investigation---Accused's case constituted need for further inquiry into his guilt and his false implication in the case due to hidden motives of the complainants could not be ruled out and as to which of the three versions was probable or nearer to the truth could only be determined by Trial Court after recording evidence of the parties during trial---Accused was admitted to post arrest bail in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Ch. Ijaz Ahmad for Petitioner (in Criminal Miscellaneous No.13838-B of 2011).

Muhammad Saeed Ansari for Petitioner (in Criminal Miscellaneous No.14047-B of 2011).

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab and Ammar A.S.-I. for the State.

Arshad Ali Chohan for the Complainant.

2013 Y L R 701

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

MUHAMMAD IMRAN alias MANI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15673-B of 2011, decided on 30th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/ 109/ 379/ 427/ 148/ 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, abetment, theft, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapons, acts of terrorism---Bail, grant of---Further inquiry---Ten persons were alleged to have collectively fired at the deceased but no specific injury on the person of the deceased had been attributed to the accused---No weapon of offence had been recovered from the accused---Accused had taken plea of alibi at the time of occurrence by stating that they were present in a court in connection with a criminal case and in this regard, statements of two advocates and court reader were available on the record---Accused were found innocent in three consecutive investigations and their names were placed in column No.2 of the report prepared under S. 173 Cr.P.C.---Question of vicarious liability of accused and evidentiary value of the plea of alibi was to be determined by Trial Court after recording of evidence---Case against accused fell within the purview of S.497(2) Cr.P.C. and was one of further inquiry into their guilt---Bail petition of accused was accepted and they were admitted to bail.

M.A. Zafar and Shoaib Zafar for Petitioners.

Tariq Javed, Deputy District Public Prosecutor, Naveed Irshad, DSP Ferozewala Circle and Muhammad Younas, Inspector/S.H.O. Police Station Factory Area, Sheikhupura for the State

Sher Afghan Asadi for the Complainant.

2013 Y L R 711

[Lahore]

Before Sagheer Ahmad Qadri and Ijaz Ahmed, JJ

MUHAMMAD ASHFAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.364 of 2009, heard on 14th July, 2011.

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

----S. 9(b)---Possessing, and trafficking the narcotics---Appreciation of evidence---Benefit of doubt---"Charas" weighing 107 grams was allegedly recovered from possession of accused---Prosecution witnesses were Police Officials---Recovery witnesses were not consistent with regard to the distance between the place of recovery and the police post and also about the colour of "charas" recovered from the accused---Said witnesses were not in agreement even in respect of the number of passengers of the vehicle on which the accused was travelling---Benefit of doubt was extended to accused in circum-stances and he was acquitted accordingly.

Fiaz Ahmed Rana for Appellant.

Ch. Muhammad Waheed Khan, Deputy Prosecutor-General for the State.

Date of hearing: 14th July, 2011.

2013 Y L R 717

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mehmood Maqbool Bajwa, JJ

NASIR MEHMOOD, A.S.-I.---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1989 of 2004, heard on 23rd November, 2011.

Penal Code (XLV of 1860)---

----S. 174---Non-attendance in obedience to an order from public servant---Appreciation of evidence---Sentence, reduction in---Accused (police official) was cited as a prosecution witness in a case and on three occasions he was served with summons/notice by the Trial Court to record his statement---Accused failed to attend the Trial Court, which convicted him under S. 174, P.P.C for such wilful disobedience and sentenced him to six months' imprisonment along with a fine of Rs.1,000---Accused did not argue the case on merits and only prayed for reduction in his sentence---Validity---Accused had not opted to impugn his conviction, therefore, there was no ground or justification to warrant interference in the same---Sentence of the accused was reduced on the grounds that he was not involved in a criminal case but had been punished on account of his failure to appear before the Trial Court; that he had already undergone one and a half months of his sentence out of the total imprisonment of six months; that position of the accused in the society was seriously affected on account of his conviction; that upholding his sentence might result in is removal from the job, which would cause his whole family to suffer, and that the accused was a previous non-convict---Sentence of accused was reduced to that already undergone by him but he was directed to pay the fine and deposit the same within one month---Order accordingly.

Muhammad Shoaib Zafar for Appellant.

Ch. Muhammad Mustafa Deputy Prosecutor General for the State.

Date of hearing: 23rd November, 2011.

2013 Y L R 725

[Lahore]

Before Mazhar Iqbal Sidhu, J

NAZIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9178-B of 2012, decided on 25th July, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b), 337-A (ii) & 34---Qatl-e-amd, shajjah-i-mudihah, common intention---Bail, grant of---Further inquiry---Accused along with the co-accused was alleged to have murdered the deceased---Accused was specifically alleged to have held a hatchet with which he gave a blow behind the ear of the deceased---Contentions of the accused were that no such injury as ascribed to him existed in the post-mortem report, and that there was contradiction in medical evidence and ocular account, which made present case one of further inquiry---Validity---Role of causing injury ascribed to the accused had not been found in the postmortem examination report and prima facie there was incoherence between ocular account and medical evidence---Mere commencement of trial was by itself no ground for refusing bail---Case was one of further inquiry and accused was granted bail accordingly.

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

----S. 497(4)---Bail, grant of---Scope---Commencement of trial---Effect---Mere commencement of trial by itself was no ground for refusing bail, as S. 497(4), Cr.P.C, was very much clear in stating that bail could be granted at any stage even before pronouncement of the judgment.

Mian Muhammad Naeem Akhtar for Petitioner.

Zafar Iqbal Chohan for the Complainant with Ghulam Hussain Kazmi, A.S.-I. with record.

2013 Y L R 730

[Lahore]

Before Rauf Ahmad Sheikh, J

ISHFAQ HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1871-B of 2011, decided on 29th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/34---Qatl-e-amd, abetment---Bail, refusal of---Broad-daylight occur-rence promptly reported to the police had ruled out the possibility of deliberation and consultation---Eye-witnesses in their statements recorded under S.161, Cr.P.C., had fully supported the prosecution version regarding causing of firearm injury on the back of the deceased, which had been declared fatal in the postmortem report---Case of accused was distinguishable from that of co-accused, who were not attributed any specific injury---Pistol had been recovered from the accused and non-availability of the report of Forensic Science Laboratory, which was only a corroborative piece of evidence, was no ground to disbelieve the prosecution version at the present stage---Prosecution evidence not found sufficient against co-accused could not be said to be not believable against the accused after the trial---Prima facie, sufficient material was available on record to connect the accused with the commission of the offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Abscondence of accused coupled with the said material for more than five years, had disentitled him to bail---Bail application was dismissed accordingly.

2009 PCr.LJ 1101 ref.

Naseer Ahmad Bhutta and Ch. Waris Ali Junjua for Petitioner.

Ms. Fauzia Sultana for the Complainant.

Mian Muhammad Awais Mazhar, D.P.G. for the State and Muhammad Akram, A.S.-I. along with record.

2013 Y L R 734

[Lahore]

Before Muhammad Qasim Khan, J

ZAHOOR KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No1774-B of 2011, decided on 23rd August, 2011.

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 and co-accused had been nominated in the F.I.R., but no overt act had been attributed to them and they were shown to be merely present at the place of occurrence---Complainant's version had not been found to be wholly truthful during the course of investigation and report under S.173, Cr.P.C. had been submitted against a different set of accused---Applicability of Ss. 148 and 149 of P.P.C. to the extent of the accused and co-accused required further inquiry---Report under S. 173, Cr.P.C. had been sent to court, but there was no substantial progress in the trial---Accused and co-accused were admitted to bail accordingly.

Abdul Aziz Khan Niazi for Petitioners.

Rana Ibrar Hussain for the Complainant.

Ch. Muhammad Akbar, Deputy Prosecutor General with Mukhtiar Ahmad A.S.-I.

2013 Y L R 740

[Lahore]

Before Ch. Muhammad Younis, J

SAIF ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2308-B of 2011, decided on 2nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Nature of injuries on the person of the injured indicated that he had been fired at by the accused and his case was distinguishable from those of his co-accused---Accused had the knowledge that his use of a firearm and his act of firing at the injured could have caused his death because of which provisions of S. 324, P.P.C. were attracted---Accused had also got adjourned the trial on a date when the witnesses were present---Recovery had been effected from the accused and there was sufficient material to connect him with the commission of the offence because of which his case fell within prohibitory clause of S. 497, Cr.P.C---Bail petition of accused was dismissed in circumstances.

Muhammad Zahid Habib Gujjar for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Muhammad Abdul Wadood, D.P.G. along with Wazir S.-I. with record for the State.

2013 Y L R 744

[Lahore]

Before Muhammad Yawar Ali and Sardar Muhammad Shamim Khan, JJ

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4362-B of 2011, decided on 18th January, 2012.

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

----S.497---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extorting property, valuable security, etc.---Bail, grant of---Delay in lodging F.I.R.---Prosecution witnesses related to complainant--- Joint extra-judicial confession---Delay of one month and twenty three days between occurrence and lodging of F.I.R.---Accused persons had been nominated in the F.I.R. but complainant had not mentioned any evidence against them regarding their involvement in the commission of the offence---Statements of two prosecution witnesses showed that accused had confessed their guilt before them, but statements did not reveal date, time and place where accused allegedly confessed to their involvement in the offence---Evidence of joint extra-judicial confession against accused was inadmissible in evidence---Two other prosecution witnesses, who were related to the complainant, had stated that at the time of occurrence they saw accused and their co-accused sitting with the abductee, but fact of being related to the complainant was not mentioned in the F.I.R.---Nothing was recovered from possession of accused during investigation and they were behind bars for a period of about 6 months---Accused were admitted to bail accordingly.

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

----S. 497---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extorting property, valuable security, etc.---Bail, grant of---Subscriber Identification Module (SIM) card of mobile phone in the name of accused---Contradictions in statements of witnesses--Accused (co-accused) was not nominated in the FIR but was implicated by complainant and two prosecution witnesses in their supplementary statements, which were recorded by the police after a delay of three months and twenty days---Subscriber Identification Module (SIM) card of accused had allegedly been used by the co-accused but there was no evidence available on the record showing that it was in the knowledge of the accused that his SIM card was being used by the co-accused---Three prosecution witnesses had stated that they saw the accused sitting with the co-accused at the time of abduction, but such statement contradicted statements of other prosecution witnesses, according to whom the abductee was sitting with the co-accused---Nothing was recovered from possession of accused during investigation and he was behind bars for a period of about 6 months---Accused was admitted to bail accordingly.

Ahmad Raza and Sh. Javed Rashied for Petitioners.

Syed Ghulam Abbas for the Complainant.

Munir Ahmad Sial, D.P.-G. for the State.

2013 Y L R 756

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Civil Revision No.564-D of 2000/BWP, decided on 5th July, 2011.

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

----Ss.19 & 36---Suit for declaration of claiming proprietary rights in suit land on the ground that the plaintiffs had been in continuous possession of the same and had cultivated said land---Suit was decreed by Trial Court but was on appeal, dismissed by the Appellate Court---Validity---Tenant was already in possession of the land for 30 years, regularly paying instalments, developing the same, the Department accepting instalments from said tenant and even after passing of order of resumption of tenancy and paying up major portion of the price of land---Deprivation of land in question, in circumstances, would be a great hardship to the tenant; and plaintiffs were entitled not be subject to such deprivation---Order of Appellate Court was set aside and suit of the plaintiffs was decreed.

Abdul Ghafoor v. Member (Colonies) Board of Revenue West Pakistan, Lahore and others PLD 1976 BJ 32 rel.

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

----S.36---Bar on jurisdiction of the civil court---Scope---If matter under challenge before the civil court had been passed with jurisdiction and in accordance with the statute; then the civil court had no jurisdiction; however, if the order impugned before the civil court had been passed without jurisdiction, in such a case, the civil court had jurisdiction to entertain suit against such action/order---Order passed by Revenue Officials, in the present case, was without jurisdiction, and therefore, the civil court rightly exercised jurisdiction---Civil court, even otherwise, was a court of ultimate and plenary jurisdiction.

Raja Muhammad Sohail Iftikhar and Asif Mahmood Pirzada for Petitioners.

Naveed Khalil Chaudhary, A.A.-G. and M.A. Rashid Chaudhary for Respondents.

Date of hearing: 5th July, 2011.

2013 Y L R 770

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SHAFI-UR-REHMAN and others---Petitioners

Versus

RUSTAM KHAN and others---Respondents

Civil Revision No.588 of 2001/BWP, heard on 9th January, 2012.

Civil Procedure Code (V of 1908)---

----O.XLI, R.20---Appeal---Suit for declaration was decreed---Application for impleading co-defendants in the suit as respondents in the appeal was allowed by the Appellate Court---Contention of the plaintiff was that order of Appellate Court allowing the applicants/defendants to implead the omitted parties as respondents was without jurisdiction---Validity---Appeal against decree of Trial Court was filed by some of the defendants to the suit and the omitted persons were co-defendants in the said suit---No legal bar existed in allowing the application to implead such persons in the appeal as respondents---No jurisdictional defect in the order of the Appellate Court---Revision was dismissed.

Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 rel.

Sheikh Najam Ali for Petitioners.

Sardar Muhammad Hussain Khan and Mrs. Samina Qureshi for Respondents.

Date of hearing: 9th January, 2012.

2013 Y L R 775

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

KEEBA---Petitioner

Versus

BOARD OF REVENUE PUNJAB and others---Respondents

Writ Petitions Nos.7817, 7811, 8935, 8934, 9796, 9952, 7124, 9965, 7125, 9794, 7126, 9795, 7127, 7128, 7129, 7130, 7131, 7132, 7133, 8407, 12032, 12033, 12034, 12036, 12038, 12040, 12041 and 12037 of 2010, decided on 11th June, 2010.

Constitution of Pakistan---

----Art. 199---Notifications No. 223-2010-118-C.L(i)---Notification No.224-2010/ 119-C.L(i)---Constitutional petition---Lease of state land---Non-availability of Fard Neelam---Effect---Petitioners claimed to be lessees of State land and that they were paying dues to the Government regularly---Revenue Department vide notifications and policy issued by the department, directed that the lessees pay unpaid rent along with 15% increase and in case of default, the Collector were authorized to resume the land and eject the lessees---Validity---Admittedly no notices were issued to the lessees and they approached the Collectors themselves, whereafter their applications were dismissed on the ground that the original Fard Neelam was not available in their record and as such they were illegal occupants and their land was included in the auction schedule---Revenue Officer had sought an opinion from the Board of Revenue informing that the record of Fard Neelam was not available in the Revenue Record and the leases may be extended and regularized , which request of the Revenue Officer was still pending---Parties agreed before High Court that the petitioners would file applications with the Revenue Officer for extension of their leases in accordance with the Scheme, and the Revenue Officers will examine such applications of the petitioners keeping in mind that the non-availability of Fard Neelam of the land, was not the fault of the petitioners but it was the duty of the Revenue Department to keep such record safe---Revenue Officer, after hearing the petitioners, would decide the applications within one month in accordance with the law---High Court further directed that the property in possession of the petitioners would not be auctioned or included in the schedule of auction till the disposal of their applications---Constitu-tional petition was disposed of accordingly.

Syed Faiz-ul-Hassan for Petitioner.

Muhammad Siraj-ul-Islam Khan, Additional Advocate-General along with Imtiaz Ahmad Khan Niazi, DO(R), Sarfaraz Ahmad DDO(R) Bhawana and Zahid Sohail DDO(R) Chiniot for Respondents.

2013 Y L R 781(1)

[Lahore]

Before Tariq Javaid, J

DISTRICT COORDINATION OFFICER, NAROWAL and 6 others---Petitioners

Versus

Mst. SAIRAN BIBI and 3 others---Respondents

Civil Revision No.3794 of 2010, decided on 10th January, 2011.

Civil Procedure Code (V of 1908)---

----S.42---Suit for declaration---Petitioner assailed order of Appellate Court that granted interim relief to the respondents---Contention of the petitioner was that observations made in the order of the Appellate Court were damaging and would ultimately affect the merit of petitioner's case---Validity---Grievance of petitioner was without substance as observations made in the order of the Appellate Court were tentative in nature and were not based on any evidence; such observations would not affect merits of the case---Revision was dismissed with the observation that Trial Court should not take into consideration the observations made in the order of the Appellate Court and shall decide the suit strictly on basis of evidence on record and law applicable thereto.

Tariq Masood for Petitioners.

Hafeez Saeed Akhtar for Respondents.

2013 Y L R 785

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

Mst. NASREEN AKHTAR and others---Respondents

Civil Revision No.1068 of 2010, decided on 6th July, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, Rr. 1, 3, 4 & 8---Specific Relief Act (I of 1877), S.42---Suit for declaration---Trial Court dismissed suit for non-prosecution---Application by plaintiff for restoration of suit was dismissed by Trial Court and same was affirmed by Appellate Court---Perusal of order of Trial Court revealed that on said date case was fixed for arguments on miscellaneous application and not the main suit---If plaintiff was not present on said date, Trial Court could dismiss miscellaneous application for non-prosecution and not the main suit---Plaintiff's averment that Reader of the court wrongly informed him about next date of hearing, and such averment having been denied by defendants was, as such, a controversial point between the parties which could only be resolved after recording of evidence---Plaintiff's contention that from date of knowledge of dismissal, application of plaintiff was within time and if defendants were controverting such fact, Trial Court should have framed issues and recorded evidence---Application for restoration of suit having been dismissed summarily by the Trial Court, order of Trial Court was not sustainable in the eye of law---Orders of courts below were set aside and case was remanded to the Trial Court---Revision was accepted accordingly.

Atir Mehmood for Petitioner.

Ishrat Ali Javaid for Respondents.

2013 Y L R 788

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ABDUL RAZZAQ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 970, 972 and Murder Reference No.550 of 2006, heard on 24th January, 2012.

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

----Ss. 302(b) & 460---Qatl-e-amd, lurking house-trespass by night---Appreciation of evidence---F.I.R. was promptly lodged without any delay---No active role was attributed to accused persons in the supplementary statement of the complainant, and prosecution witness had assigned no active role to accused persons---Prosecution witnesses had made material improvements in their statements regarding the presence of accused persons and their role at the time of occurrence and presence of said witnesses was not mentioned in the F.I.R.---Inquest Report of deceased was prepared after sixteen days of the registration of the F.I.R.---Prosecution evidence showed that accused were implicated in the case because of the improvements made by the complainant, and other eye-witnesses also followed the same line and implicated the accused---Dishonest improvements made by the prosecution witnesses regarding the presence of accused persons at the place of occurrence, and the role played by them, had made the prosecution case qua accused persons, highly doubtful---Prosecution witnesses though had no enmity with accused but their statements to the extent of role attributed to accused were not free from doubt and same were not confidence-inspiring---Mere absence of their enmity with accused persons, would not mean that death sentence of accused persons, should straightaway be maintained without looking into the veracity of the evidence of such witnesses---Supplementary statement of the complainant made during Police investigation, would not be equated with F.I.R.---Incident was night occurrence, but no source of light was mentioned in the F.I.R.---No description of accused persons, who allegedly were present at the place of occurrence, was given by the complainant in his supplementary statement and also by other prosecution witness---Prosecution witnesses had not given any specific description like, age, colour etc. or identification mark of accused persons---Role of accused was not described by the witnesses at the time of identification parade, which was an inherent defect in the prosecution evidence---Such identification parade could not be relied upon to maintain the conviction of accused persons-Identification parade was held with the delay of seven days after the arrest of accused persons, which delay had created a lot of doubt regarding identification parade---Prosecution evidence regarding the identification of accused persons, did not inspire confidence---Prosecution case against accused was replete with material improvements and the story of the prosecution qua involvement of accused in the case was highly doubtful---Prosecution having failed to prove its case against accused persons beyond the shadow of doubt, conviction and sentence recorded by the Trial Court against accused, was set aside and they were released, in circum-stances.

Akhtar Ali and others v. The State 2008 SCMR 6; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Falak Sher alias Sheru v. The State 1995 SCMR 1350; Shafqat Mehmood and others v. The State 2011 SCMR 537; Bacha Zeb v. The State 2010 SCMR 1189 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Ss.302(b) & 460---Qatl-e-amd, lurking house trespass by night---Appreciation of evidence---Recovery of weapon of offence---Evidentiary value---Value of the recovery of the weapon of offence was purely corroboratory in nature; and such recovery alone was not capable to bring home charge against accused in absence of direct substantive evidence---Conviction could not be recorded merely on the basis of the evidence of recovery, howsoever convincing it could be and sentence of accused could not sustain merely on the basis of recoveries.

Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Saifullah v. The State 1985 SCMR 410 and Abdul Mateen v. The State and others PLD 2006 SC 538 rel.

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

----Ss.302(b) & 460---Qatl-e-amd, lurking house-trespass by night---Appreciation of evidence---Statement of prosecution witnesses---Absence of enmity with accused---Effect---Absence of enmity of prosecution witnesses with accused did not mean that whatever they had stated be taken as gospel truth and apostle reality---Court had to see as to whether the statements of the prosecution witnesses were confidence-inspiring and trustworthy to the extent of role assigned to accused persons.

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

----Ss.302(b) & 460---Qatl-e-amd, lurking house trespass by night---Appreciation of evidence---Mere fact that a witness was an independent, would not necessarily prove that he was a witness of truth; and intrinsic worth of the statement of any witness was the test of his veracity.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 rel.

Rai Usman Ahmad for Appellant (in Criminal Appeal No.970 of 2006).

Muhammad Akram Qureshi for Appellant (in Criminal Appeal Nos.972 of 2006).

Chaudhary Muhammad Mustafa, Deputy Prosecutor-General for the State.

Rana Muhammad Zahid for the Complainant.

Date of hearing: 24th January, 2012.

2013 Y L R 806

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

GHULAM SHABBIR and another---Appellants

Versus

The STATE and others ---Respondents

Criminal Appeals Nos.132, 410 and Criminal Revision No.69 of 2002, heard on 1st June, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Extraordinary delay of four days in lodging the F.I.R. had established the same having been lodged after deliberations and consultations---Prosecution had failed to prove the motive of the occurrence against the accused---Complainant eye-witness, father of the deceased, was not found to be present on the spot at the time of incident, otherwise he must have reported the matter to the police immediately---Delayed F.I.R. had suggested that complainant had been informed about the occurrence after the deceased in the injured condition had been shifted to the hospital---Evidence of complainant, thus, was not reliable---Other eye-witness appeared to have involved the accused in the crime at the instance of the complainant party---Deceased had received all the injuries on his legs and according to his medico-legal report in injured conditions none of the injuries had been declared to be dangerous to life by the Doctor---Deceased had died after about four months of the occurrence and though he remained conscious during this period, yet his dying declaration was not recorded by the Investigating Officer---No post-mortem examination of the deceased was conducted after his death on account of the efforts of the complainant himself---Cause of death of the deceased could not be ascertained with certainty---No crime empty having been secured from the spot, recovery of gun at the instance of accused, in the absence of report of Forensic Science Laboratory, was inconsequential and could not be used against him---Accused was acquitted in circumstances.

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

----S. 302(b)--- Qatl-e-amd--- Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Appreciation of evidence---F.I.R. did not reveal any abetment against the acquitted accused---Statements of two prosecution witnesses recorded under S.161, Cr.P.C. after about one month of the registration of the F.I.R., disclosed that one acquitted co-accused had directed the other co-accused to commit the murder of the son of complainant, while sitting in a hotel, which was quite unnatural and un-reliable---Said statements had been procured by the prosecution after consultations and deliberations---One accused was not even connected with the motive---Offence under S.302, P.P.C. was not proved by the prosecution, as post-mortem examination of the deceased was not conducted and there was no opinion of the Doctor regarding his cause of death---Acquittal of accused was based on cogent reasons and impugned order did not suffer from any legal or factual infirmity---Appeal against acquittal of accused was dismissed in circumstances.

Abdul Aziz Khan Niazi for Appellants.

Rana Kashif Saleem Arfaa Law Officer for the State.

Sheikh Muhammad Raheem, Sahibzada Farooq Ali Khan, Malik Nazeer Ahmad Thaheem and Rana Nadeem Ahmad Kanjoo for Respondents.

Date of hearing: 1st June, 2010.

2013 Y L R 820

[Lahore]

Before Sh. Najam-ul-Hasan, J

MASAL KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Ministry of Home, Islamabad 7 and others---Respondents

Writ Petitions Nos.29215 and 29606 of 2011 and 29 of 2012, decided on 16th March, 2012.

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

----Ss.154 & 157---Cognizable offence---Duty of Station House Officer---Scope---From information received through F.I.R. or otherwise, if even Station House Officer suspects commission of cognizable offence, he is duty bound to immediately commence investigation of such case and that such investigation has to be done at the spot i.e. at the place of occurrence and not at some other place.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

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

----Ss.154, 155 & 157---Constitution of Pakistan, Art.199---Constitutional peti-tion---Cognizable offence---Registration of case---Plea raised by petitioner was that Station House Officer did not comply with direction issued by Ex-Officio Justice of Peace---Validity---Mandatory under S. 154 Cr.P.C., for Station House Officer to record such information which had disclosed commission of cognizable offence---If cognizable offence was not made out then Station House Officer had to report matter under S. 155, Cr.P.C.---Station House Officer having prepared report under S. 157, Cr.P.C. it was clear that he was aware of the fact that there were circumstances indicating commission of cognizable offence so he must have registered case under S. 154, Cr.P.C. and thereafter he would have proceeded in accordance with law which included proceedings under S. 157, Cr.P.C.---Matter was never placed before investigation department for investigation which was against scheme of criminal law in such respect---Station House Officer did not comply with order of Ex-officio Justice of Peace in sheer violation of law---High Court directed Station House Officer to see that orders of Ex-Officio Justice of Peace, were complied with in accordance with law in letter and spirit---Petition was disposed of accordingly.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

Muhammad Azhar Siddique for Petitioner (in Writ Petition No.29215 of 2011 and 29 of 2012).

Muhammad Zubair Khalid Chaudhary for Petitioner (in Writ Petition No.29606 of 2011).

Arif Yaqoob Khan, Assistant Advocate-General along with Raza Safdar Kazmi, DSP/SDPO, Civil Line Circle Lahore and Wasim Akhtar, Inspector/ S.H.O. of Police Station Race Course, Lahore.

2013 Y L R 828

[Lahore]

Before Shahid Hameed Dar, J

SHAMSHAD AKHTAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5489-BC of 2012, decided on 30th November, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for cancellation of bail, dismissal of---Details of transaction resulting in issuance of cheque not clear---Effect---Accused allegedly issued a cheque to the complainant in connection with the sale of a house, which cheque got dishonoured on presentation due to insufficient funds---High Court granted bail to accused---Validity---No evidence existed on record to establish as to when, where and how the disputed cheque was handed down to the complainant by the accused---Record also did not show as to who were the witnesses in whose presence the alleged transaction regarding sale/purchase of house was carried out---Story contained in the F.I.R. was vague and in absence of any corroborating evidence, it was not clear as to why accused delivered the cheque in question to the complainant---Accused was not alleged to have misused the concession of bail in any manner since his release from prison---Petition for cancelation of bail was dismissed in circumstances.

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

----S. 497(5)---Bail, cancellation of---Grounds---Petition for cancellation of bail could not be granted unless some serious legal infirmity or exceptional circumstance calling for interference could be found from the bail granting order.

Muhammad Bashir Malik for Petitioner.

Muhammad Nawaz Shahid, Deputy District Public Prosecutor for the State with Allah Bakhsh S.-I.

Sahir Mehmood Bhatti for Respondent No.2 (in person).

2013 Y L R 836

[Lahore]

Before Muhammad Qasim Khan, J

SHABBIR AHMED---Petitioner

Versus

FARZANA FARID and 2 others---Respondents

Writ Petition No.524 of 2006/BWP, decided on 24th March, 2010.

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

----O.VIII, Rr. 1, 9 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Filing of written statement, requirement of---Word "require" in O.VIII, R. 1, C.P.C.---Significance---Failure to present written statement and punitive action therefor---Respondent had filed suit for specific performance of the contract against petitioner and during pendency of suit, petitioner's right of filing written statement was closed by the Trial Court vide an order against which an application for setting aside said order was filed but was dismissed---Revision petition before Revision Court below, was also dismissed---Petitioner contended that Trial Court was not justified in striking out the defence of the petitioner and similarly revision petition was also illegally dismissed and Revision Court below had not exercised the jurisdiction vested in it---Validity---Word "required" in O. VIII, R.1, of Civil Procedure Code, 1908, was of most significance and it was essential that whenever a written statement was to be made subject to penal provision of O.VIII, R.10, Civil Procedure Code, 1908, there should be proof on record that the court had 'required' it by application of mind to the need and that too in a speaking order, as without same many innocent parties would be trapped in a technicality without fully realizing the implications---Where adjournments were granted for production of written statement which could be filed as of right under O.VIII, R.1, C.P.C. or which was permitted to be filed under O. VIII, R.9, C.P.C. that could not satisfy the law regarding the 'requirement' of the court---Only that written statement which was required by court by a speaking order, would entail the penal consequences of O. VIII, R.10, C.P.C. and in the present case it was admitted position that these requirements had not been fulfilled---Non-filing of required written statement left the Trial Court with two alternatives, namely the pronouncing of judgment forthwith or making of such other orders as the court thought fit, although, applying penal provisions of O. VIII, R.10, C.P.C. and pronouncing judgment without recording the evidence was discretionary with the court---Punitive action under O. VIII, R.10, C.P.C. was only to be taken in extreme circumstances based on the facts before the court---Other alternative available to the court was to award costs and grant an adjournment or proceed to record ex parte and then pronounce the judgment---Case record did not show that last opportunity was given to the defendant to file written statement and written reply---Trial Court and Revision Court below had not exercised the jurisdiction vested in them and resultantly constitutional petition was allowed and both the impugned orders passed by courts below were declared void, illegal, ab initio, having no legal effect on the rights of the petitioner---Trial Court was directed to award last and final opportunity of fifteen days to petitioner to file his written statement, subject to payment of costs---Constitutional petition was allowed accordingly.

PLD 2006 Lah. 18; PLD 2002 SC 630 and PLD 2002 SC 491 ref.

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

----O. VIII, Rr. 1 & 10---Failure to present written statement---Punitive consequences---Scope---When required written statement had not been filed, two alternatives were available before the Trial Court, namely the pronouncing of judgment forthwith or making of such other orders, though it was discretionary with the court to apply penal provisions of O. VIII, R.10, of Civil Procedure Code, 1908, and pronounce the judgment even without recording the evidence but such judgment should be on the basis of facts before it---Court in the alternative could award costs and grant adjournment or proceed to record evidence ex parte and then pronounce the judgment---Punitive action for non-filing of written statement should only be taken in very extreme circumstances.

Malik Imtiaz Mahmood for Petitioner.

Tariq Mahmood Khan for Respondent No.1.

2013 Y L R 842

[Lahore]

Before Ijaz Ahmad, J

Mst. ROZEENA SHAHEEN---Petitioner

Versus

ABDUR REHMAN and 2 others---Respondents

Writ Petition No.1571 of 2010 and Writ Petition No.20588 of 2009, decided on 6th April, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage and recovery of dower---Suit was partially decreed to the extent of dissolution of marriage on ground of khula subject to the condition that the wife would not claim prompt dower and claim of wife for recovery of dowry articles was dismissed---Contention of the wife was that she had proved cruelty of the husband towards her and as such she could not be held disentitled to claim prompt dower---Validity----Wife could not prove that she was subjected to cruelty and had been rightly declined dissolution of marriage on said ground---Findings of Family Court were not exceptional however, quantum of prompt dower required to be returned in lieu of decree of dissolution of marriage needed to be re-determined---Husband admittedly boasted a previous wife and fathered two previous children and concealed said fact from the wife at the time of marriage and in the nikahnamma, therefore, wife had hatred and abhorrence against the husband---When in such a situation the hatred justifying the dissolution on ground of khula was not volunteered on part of wife and generation of such hatred was contributed by the acts of the husband, the returnable dower may be reduced---High Court, in the light of said findings, reduced returnable dower to half---Constitutional petition was partly allowed in circumstances.

Abdul Aleem Khan v. Tabinda Nasser Qazi and another PLD 2011 Kar. 196 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 17 & 5 Sched.---Qanun-e-Shahadat (10 of 1984), Preamble---Standard of proof required for suit for recovery of dowry articles stated.

Abdul Aleem Khan v. Tabinda Nasser Qazi and another PLD 2011 Kar. 196; Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396; Mst. Allah Rakhi v. Tanvir Iqbal and others 2004 SCMR 1739; M. Jaffar v. Additional District Judge and others 2005 MLD 1069; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584; 2004 SCMR 1739 and Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 rel.

Erum Sajjad Gull for Petitioner (in Writ Petition No.1571 of 2010 and for Respondent (in Writ Petition No.20588 of 2010).

Ch. Muhammad Rafique and Ghulam Majaddid Rabbani for Respondents No.1 (in Writ Petition No.1571 of 2010 and for Petitioner (in Writ Petition No.20588 of 2010).

2013 Y L R 852

[Lahore]

Before Malik Shahzad Ahmad Khan, J

SHAKIL MEHMOOD through Special Attorney---Petitioner

Versus

DISTRICT JUDGE, SIALKOT and 3 others---Respondents

Writ Petition No.22339 of 2010, heard on 15th December, 2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 &Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dower, dowry articles, maintenance allowance and delivery expenses---Concurrent findings of Trial Court and Appellate Court by which decree for maintenance for son, recovery of dower amount and dowry articles was passed in favour of the wife (respondent)---Husband (petitioner) in his petition did not challenge the quantam of maintenance allowance as fixed by courts below but objected to the 20% annual increase in the said allowance---Husband also contented that dowry list was not signed by him or his representative and list of dowry articles exhibited in the court did not mention their prices---Validity---Petitioner had failed to produce his salary slips to establish his contention that 20% annual increase in maintenance allowance was beyond his means---Minor son was a 'special child' because of which wife had to incur a lot of expense on his medical treatment---Such fact was also admitted by one of petitioner's witnesses, in view of which 20% annual increase in maintenance allowance was rightly fixed by courts below---Wife had proved the list of dowry articles, as the same was signed by her and she had also produced different receipts regarding the purchase of said dowry articles---Husband having failed to point out any illegality or irregularity in concurrent findings of Trial Court and Appellate Court below, his petition was dismissed.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 distinguished.

Ch. Muhammad Aslam for Petitioner.

Shahbaz Ali Khan for Respondents Nos.3 and 4.

Date of hearing: 15th December, 2011.

2013 Y L R 860

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD SHAFI and another---Petitioners

Versus

PROVINCE OF PUNJAB through District Officer Revenue and 5 others---Respondents

Writ Petition No.15936 of 2001, decided on 10th October, 2011.

(a) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.115---Constitutional jurisdiction of High Court---Scope---Impugned interlocutory order after availing remedy of revision petition---High Court would not exercise such jurisdiction unless courts below had travelled beyond jurisdiction or failed to do what was required under law.

Ashiq Hussain v. Sikandar Shah and 14 others 2011 CLC 373 and Kausar Bibi v. Allah Ditta Chaudhry PLJ 2010 Lah. 299 rel.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 85 & 140---Suit for declaration---Mutation alleged to have been sanctioned by revenue staff illegally---Holding of inquiry proceedings against revenue staff illegally---Holding of inquiry proceedings against revenue staff---Record of such inquiry proceedings along with statements of revenue staff recorded therein summoned by plaintiff for confronting revenue staff while appearing as wit-nesses---Objection that without summoning defendants/revenue staff as witnesses, their statements recorded in inquiry proceeding could not be placed on record in suit---Validity---Documents prepared by a public servant in discharge of his official duties for being public documents would need not to be proved---Such documents/statements sought to be placed on record by Record Keeper in his statement were public documents as same were executed by Inquiry Officer at time of holding of inquiry in discharge of his official duties---Without bringing on record such statements/documents, plaintiff would not be able to confront the same to defendants' witnesses at time of recording their statements in suit---Such objection of defendants was overruled in circumstances.

Muhammad Ishaq Shah v. Sardar Muhammad Jahangir Khan, Additional District Judge, Multan and others 1989 MLD 987; Muhammad Sarwar and others v. Khushi Muhammad and another 2008 SCMR 350; Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Abdur Rahim Khan v. Muhammad Tahir Khan, and others 2010 MLD 1230; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65; Asif Ali Zardari and another v. The State PLD 2001 SC 568 and The State v. Mohtarama Benazir Bhutto and another PLD 1999 Lah. 535 ref.

(c) Administration of justice---

----Authority invested with judicial power would be bound to decide matter according to established judicial norms---Principles.

Any authority invested with judicial power, while exercising such power, shall decide the matter according to the established judicial norms. The earlier concept that an Authority/Tribunal having jurisdiction to decide the case rightly or wrongly is no more a valid law.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Messrs Karachi Tank Terminals (Pvt.) Ltd. v. Collector of Customs (Preventive) and 2 others 1993 MLD 1566 rel.

(d) Administration of justice---

----Courts should avoid technicalities to deliver substantial justice.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Interlocutory order when hampering the case of any party to be wiped out to nip the illegality in the bud.

Instead of awaiting for the completion of the whole trial, any illegality in the interlocutory order, which hampers the case of any party, should be wiped out from the record so as to nip the illegality in the bud instead of reversing the protracted proceedings of at the belated stage of appeal in the form of remand. To obviate such remand, any shortcoming should be removed from the record as early as possible.

Malik Noor Muhammad Awan for Petitioner.

Malik Saeed Hassan, Senior Advocate Supreme Court for Respondent.

Date of hearing: 4th October, 2011.

2013 Y L R 883

[Lahore]

Before Rauf Ahmad Sheikh, J

JAVED IQBAL---Petitioner

Versus

Syed SHAHID RAZA and others---Respondents

Civil Revision No.182 of 2009, decided on 22nd March, 2012.

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

----O. XVII, R. 3---Civil Procedure Code (V of 1908) [Lahore High Court Amendment], O. XVII, R.1(3)---Suit for possession through pre-emption---Trial Court under O. XVII, R. 3 C.P.C. closed the defendant's evidence---Contention of the defendant was that his father was admitted to the hospital and he had submitted an application for adjournment in that regard, and Trial Court disallowed the same under haste---Validity----Defendant had submitted an application for adjournment specifically mentioning that his father was seriously ill and was admitted in the Hospital, and discharge card was also shown---Reasonable ground was, therefore, available for grant of adjournment in view of Order XVII, R.1(3), C.P.C. [Lahore High Court Amendment]; and provisions of O. XVII, R.3, C.P.C. were not attracted in view of the contents of the defendant's application---Order sheet of Trial Court vividly revealed that sufficient opportunity was not given to the defendant to produce his evidence---Where valuable rights of the parties were at stake; hasty and ill founded orders cause miscarriage of justice and must be avoided in administration of justice and one could not be knocked out through orders which were not warranted under law----Technicalities of law cannot hamper the course of justice---High Court, while converting revision petition into constitutional petition, allowed the same and directed that the defendant be given one more opportunity to produce evidence.

1994 SCMR 2265; PLJ 2011 Pesh. 83 and 2010 CLC 1405 ref.

(b) Administration of Justice---

----Where valuable rights of the parties were at stake; hasty and ill founded orders cause miscarriage of justice and must be avoided in administration of justice and one could not be knocked out through orders which were not warranted under law----Technicalities of law cannot hamper the course of justice.

Muhammad Saddique Awan for Petitioner.

Anar Khan Gondal for Respondent.

2013 Y L R 890

[Lahore]

Before Amin-ud-Din Khan, J

BAKHAT ALI and others---Petitioners

Versus

KIFIAT HUSSAIN and others---Respondents

Civil Revision No.306-D of 1995/BWP, decided on 31st May, 2011.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration was decreed by Trial Court---Appeal---Non-appearance of counsel for appellant---Effect---Appellate Court dismissed appeal of the defendants/appellant on the ground that the counsel was intentionally avoiding arguing the case to delay the matter---Validity---When the appellant was present before Appellate Court, there was no jurisdiction with the Appellate Court to dismiss the appeal for non-appearance of appellant's counsel---If no one had appeared from the appellant or counsel's side before the court on the date of hearing; then Appellate Court was competent to dismiss the appeal for non-prosecution; otherwise the Appellate Court could adjourn the case or decide the appeal on merits without hearing arguments of the counsel for the parties---High Court set aside order of Appellate Court and remanded the case to Appellate Court---Revision was allowed, in circumstances.

Bilal Ahmad Qazi for Petitioners.

Dilshad Ali Khan for Respondents.

2013 Y L R 893

[Lahore]

Before Amin-ud-Din Khan, J

Malik TAJ MUHAMMAD---Petitioner

Versus

Malik KALU---Respondent

C.M. No.9417 of 2010/BWP in Civil Revision No.339 of 1999/BWP, decided on 19th January, 2012.

Civil Procedure Code (V of 1908)---

----O. V, Rr.10 & 20 & O.IX, R.13---Ex parte decree, setting aside of---Process service, duty of---Proof of sufficient service---Petitioner assailed orders of courts below whereby the respondents' application for setting aside of ex parte decree was accepted---Validity---Formalities for substituted service provided under O. V, R. 20, C.P.C. had not been observed---No report regarding refusal of service by the respondent was furnished---Process Server had reported that when he reached the spot, the respondent went away but it was not in the report that he met the respondent and the respondent refused to accept the service---Process Server was required first to serve the summons, and if that was not possible, then to affix such summons on the conspicuous part of the residential house of the person against whom the summon had been issued, and then the publication of the same could be ordered---Postal certificate by the publisher was also required, showing that the copy of the newspaper had been sent to the addressee--Such formalities had not been observed, and there were concurrent findings of fact by the courts below---When on the factual side, both courts below had come to the conclusion that summons were not served upon the respondent, filing of the application for setting aside ex parte judgment and decree after a period of more than five years could never be a bar---Petition was dismissed.

Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240 rel.

Malik Muhammad Aslam Khan Dhukkar for Petitioner.

Muhammad Naveed Farhan for Respondent.

Date of hearing: 19th January, 2012.

2013 Y L R 903

[Lahore]

Before Rauf Ahmad Sheikh, J

ABDUL RASHEED alias Muhammad Rasheed---Petitioner

Versus

MUHAMMAD YOUSAF and 2 others---Respondents

Civil Revision No.1520 of 2012, decided on 7th May, 2012.

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

----Art.17(a)---Specific Relief Act (I of 1877) S.12---Non-production of marginal witnesses of agreement to sell immovable property---Effect---Suit for specific performance of agreement to sell immovable property was dismissed concurrently---Contention of the plaintiff was that non-production of marginal witnesses of the sale-deed was not fatal to the case of the plaintiff---Validity---Alleged agreement to sell appeared to have been attested by two persons who were not produced as witnesses by the plaintiff---Agreement to sell could be entered into without reducing the same into writing, but once deed was duly executed; the same must be attested by two men, or one man and two women as provided under Art.17(a) of the Qanun-e-Shahadat, 1984---Agree-ment to sell in the present case, bore a future obligation to transfer the property---If the agreement was attested by two witnesses, the same could be used as evidence only if the attesting witnesses, where alive and subject to the process of the court, and capable of giving evidence, and were produced for the purpose of proving the execution of the alleged deed---Agreement could not be used as evidence unless both such witnesses were produced in the witness box---Concurrent findings of the courts below did not suffer from any illegality---Revision was dismissed.

2004 YLR 1882 and 1990 CLC 1014 distinguished.

Nassir Ahmad Awan for Petitioner.

2013 Y L R 909

[Lahore]

Before Rauf Ahmad Sheikh, J

ANJUM IFTIKHAR QURESHI--- Appellant

Versus

KAMRAN FAROOQI---Respondent

F.A.O. No.54 of 2012, decided on 14th March, 2012.

Civil Procedure Code (V of 1908)---

----O. V, R. 15 [Lahore High Court Amendment] & O. XXXVII Rr. 1 & 2---Suit for recovery was decreed ex parte against the defendant---Service on male member of defendant's family---Substituted service---Scope---Contention of the defendant was that he was never served and therefore the ex parte decree be set aside---Validity---Defendant was served through his real brother and under O. V, Rule 15 C.P.C. [Lahore High Court Amendment]; service through adult male member of the family was complete and it was not contended that he had strained relations with his family or that the brother did not inform the defendant---Property of the defendant was attached and notice was issued to him during execution proceedings and he must have attained knowledge of the ex parte decree---Contention that newspaper proclamation should have been issued was without force as substituted service under O. V, Rule 20 C.P.C. would be resorted to only if it was proved that the defendant was avoiding service or for any other reason the ordinary service was not possible but in the present case the service was effected in accordance with O. V, Rule 15 of the C.P.C. [Lahore High Court Amendment]---Appeal was dismissed.

Faisal Jaffar Khan for Appellant.

2013 Y L R 914

[Lahore]

Before Abdus Sattar Asghar, J

Sh. MUHAMMAD IJAZ---Appellant

Versus

Sh. MUHAMMAD MUSHTAQ---Respondent

F.A.O. No.267 of 2011, decided on 21st January, 2013.

Civil Procedure Code (V of 1908)---

----O. X, Rr.2, 4 & O.IX. R. 13---Application for setting aside ex parte decree---Plaintiff's objection was that defendant for being proclaimed offender in criminal cases had not filed such application and its affidavit, rather same had been filed with his forged signatures, thus, his summoning in person before court was necessary to verify his signatures thereon---Appearance of defendant's wife in court as his Special Attorney---Dismissal of such application of defendant by Trial Court for not obeying its repeated directions and caution given to him for his personal appearance, thus, presuming such application not having been filed by him---Validity---Defendant's presence was necessary to meet such objection, which could have been answered by him alone and not by his counsel or special attorney---Defendant had wilfully failed to appear despite having knowledge about requirement of his personal appearance by Trial Court---Defendant despite being fugitive in criminal cases was bound to appear before Trial Court in pursuance of its directions---According to O.X, R.4(2), C.P.C., in case of failure of a party to appear in court on appointed date, court might announce judgment against him or make any order to be fit in relation to case---Impugned order was not suffering from any factual or legal infirmity---High Court dismissed appeal in circumstances.

Chaudhry Muhammad Aslam v. SME Bank Ltd. through Chairman/ resident and 2 others 2006 CLD 1301 rel.

Fayyaz Ahmed Baloch for Appellant.

Syed Muhammad Kaleem Ahmed Khurshid and Ansar Mahmood for Respondents.

Date of hearing: 21st January, 2013.

2013 Y L R 922

[Lahore]

Before Abdus Sattar Asghar, J

NASEELA SHAUKAT---Petitioner

Versus

NASIM ASGHAR---Respondent

Civil Revision No.1464 of 2011, decided on 6th December, 2012.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 15---Punjab Rented Premises Act (VII of 2009), Ss. 35 & 36---Punjab Rented Premises Ordinance (XXI of 2007), S.35---Civil Procedure Code (V of 1908), Ss.96, 115 & O. XXI, Rr. 30, 42---Ejectment order dated 7-3-2007 passed on basis of statements of parties to the effect that tenant would pay monthly rent on 15th of succeeding month and in default would be liable to ejectment; that tenant would vacate demised premises on 31-7-2011, otherwise landlord would be entitled to get possession by filing execution petition; and that maintenance of demised premises would be liability of tenant---Filing of execution petition on 6-10-2009 on ground of default in payment of rent committed by tenant---Delivery of possession of demised premises to landlord on 11-10-2010---Order of Special Judge (Rent) attaching tenant's property to effect recovery of arrears of rent and utility bills from him upheld in appeal by Appellate Court---Validity---Special Judge (Rent) while exercising powers of Rent Controller could determine finally amount of rent and utility bills due from tenant till delivery of possession of demised premises to landlord and order its payment to landlord and in default thereof execute order as a decree of civil court in terms of Ss.13 & 15 of West Pakistan Urban Rent Restriction Ordinance, 1959---Impugned order did not suffer from any illegality or jurisdictional error---High Court dismissed revision petition in circumstances.

Ghulam Rasool v. Said Rasool and 2 others PLD 1990 Lah. 457 ref.

Ashfaq ur Rehman v. Ch. Muhammad Afzal PLD 1968 SC 230; Syed Akhlaque Hussain v. Habib Ismail Bajwa 1974 SCMR 704 and Ghulam Rasool v. Said Rasool and 2 others PLD 1990 Lah. 457 rel.

Iftikhar Ullah Malik for Petitioner.

Abdul Manan Sipra for Respondent.

Date of hearing: 6th December, 2012.

2013 Y L R 933

[Lahore]

Before Rauf Ahmad Sheikh, J

KHADIM HUSSAIN---Petitioner

Versus

NAZAR MUHAMMAD and others---Respondents

Writ Petition No.3282 of 2010, decided on 23rd May, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Specific Relief Act (I of 1877) Ss.8 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession through specific performance was decreed in favour of the plaintiff on the conceding statement by the defendant---Contention of the defendant (petitioner) was that said decree was obtained by fraud and that his application under S. 12(2), C.P.C. had been wrongly dismissed by the courts below---Validity---Section 12(2), C.P.C. fell under Article 181 of the Schedule to the Limitation Act, 1908 and therefore said application could have been filed within three years by the defendant; and no explanation was given as to why the defendant kept mum for eight years---Defendant had appeared in the Trial Court and his statement was recorded by the Presiding Officer and only thereafter he put his thumb impression, and signature---Presumption of correctness was attached to judicial proceedings and therefore, his contention that his statement was made for withdrawal of the suit had no legs---Application of the defendant (petitioner) was time-barred---Constitu-tional petition was dismissed, in circumstances.

2011 SCMR 1013 and 2006 SCMR 1530 distinguished.

PLD 2004 SC 178; PLD 1987 SC 145; 2006 SCMR 1262; 1994 MLD 295 and PLD 2005 SC 430 ref.

Mian Shah Abbas Iqbal for Petitioner.

Malik Maqbool Hussain Shakir for Respondents.

2013 Y L R 942

[Lahore]

Before Ali Baqar Najafi, J

Sardar ZULFIQAR ALI KHAN and 8 others---Petitioners

Versus

Malik SAJID BASHIR---Respondent

Civil Revisions Nos.490 and 491 of 2010, heard on 10th December, 2012.

Court Fees Act (VII of 1870)---

----S.7---Suits Valuation Act (VII of 1887) S.8---Specific Relief Act (I of 1877), S.39---Pecuniary jurisdiction of Appellate Court--Scope---Consolidated suit for declaration, possession, recovery of damages, compensation and cancellation of lease was partly decreed---Appeal against said order was returned by Appellate Court on ground that Appellate Court did not have the pecuniary jurisdiction to adjudicate upon the appeal---Validity---Value of court-fee was fixed at Rupees 200,000 in the plaint and claims made in plaint went beyond said amount---Under S. 7(1) of the Court Fees Act, 1870 if the suit was for money (including suit for damages, compensation or arrears of maintenance of annutaties as of other sums payable periodically); the amount of fee was payable according to the value of the subject-matter---Under S. 8 of the Suits Valuation Act, 1887, in suits not attracting S.7(d)(v),(vi), (ix) or (x) of the Court Fees Act, 1870 the value of court-fee and jurisdiction shall be the same---In the present case, since recovery of possession and money was involved, therefore, the subject-matter would determine the jurisdiction---Claims in the present case, were therefore, beyond jurisdiction of the Appellate Court---Revisions were dismissed, in circumstances.

Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393; Mehtab Khan v. Faiz Muhammad PLD 2003 Pesh. 46 and Budha Mal v. Rallia Ram and others AIR 1928 Lah. 157(2) ref.

Syed Zulfiqar Abbas Naqvi for Petitioners (in Civil Revisions Nos. 490 and 491 of 2010).

Qazi Muhammad Tariq and Malik Muhammad Iqbal for Respondents (in Civil Revisions No. 490 of 2010).

M. Bilal for Respondent (in Civil Revision No.491 of 2010).

Malik Sajid Bashir, Advocate.

Date of hearing: 10th December, 2012.

2013 Y L R 947

[Lahore]

Before Nasir Saeed Sheikh, J

ISLAM DIN---Appellant

Versus

MUHAMMAD YOUNAS and 6 others---Respondents

R.S.A. No.164 of 2012, decided on 19th September, 2012.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 6---Talb-i-Ishhad---Production of postman---Suit for possession through pre-emption was dismissed concurrently on finding of non-performance of Talb-i-Ishhad, as postman was not produced as a witness by the plaintiff---Validity---On basis of available record, it was established that plaintiff did not produce postman to prove the due performance of Talb-i-Ishhad therefore he had not proved due performance of Talb-i-Ishhad and was not entitled to pre-emption decree---Appeal was dismissed.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762; Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 Muhammad Yousaf v. (1) The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and (2) Haji Ahmad Din, Sh. Muhammad Ismail v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and (2) Haji Ahmad Din; Hamida Khanum v. Sufi Fazal Muhammad Khan and (2) Sh. Muhammad Rafique, Settlement Commissioner, Lahore PLD 1968 SC 101 and Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

(b) Precedent---

----Judgment announced by larger Bench was to prevail over judgment announced by a Bench comprising of two Honourable Judges of the Supreme Court.

Babar Shehzad v. Said Akbar and another 1999 SCMR 2518 rel.

Sh. Irfan Akram for Appellant.

2013 Y L R 958

[Lahore]

Before Shahid Hameed Dar, J

ABDUL JABBAR and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16044-B of 2012, decided on 27th December, 2012.

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

---Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 337-A(iii)/337-F(v)/34/ 337-L(2)--- Shajjah-i-hashimah, ghayr-jaifah hashimah, common intention, other hurt---Ad interim pre-arrest bail, confirmation of---Case of cross-versions---Complainant suppressing injuries received by accused party during the incident---Effect---Accused persons allegedly inflicted injuries on the injured persons during the occurrence---Cross-version F.I.R. for the occurrence was lodged by accused side---Two versions of the occurrence existed, which ran parallel to each other---Question as to which party initiated aggression could not be resolved at bail stage and would be determined by Trial Court after recoding evidence of parties at trial---Injuries received by accused persons were suppressed by the complainant in the present F.I.R.---Element of doubt existed regarding injuries received by one of the injured persons---Investigation officer had opined that both parties had participated in the occurrence---Case was one of further inquiry---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

---Ss. 497 & 498---Bail---Principle---Plea that accused should not be granted bail so as to facilitate the police in recovering weapon of offence---Validity---Accused could not be denied bail on such a plea as recovery of weapon could be achieved by an investigating officer after obtaining a search warrant.

Rana Zahid Iqbal for Petitioners.

Ms. Muqaddas Tahira, Addl: Prosecutor General Punjab.

Abdul Qadeer Kamboh for the Complainant.

Muhammad Awais Junior Clerk, DHQ Hospital, Pakpattan Sharif and Azhar A.S.-I. with record.

2013 Y L R 965

[Lahore]

Before Malik Shahzad Ahmad Khan, J

NADEEM RAZA---Petitioner

Versus

JUDGE FAMILY COURT and 3 others---Respondents

Writ Petition No.4005 and C.M. No.5471 of 2012, decided on 13th September, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 17A---Interim maintenance of minor---Object and purpose---Purpose behind S.17A of the West Pakistan Family Courts Act, 1964 was to ensure that during pendency of proceedings before the Family Court; financial constraints faced by minors were ameliorated.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 17A---Constitution of Pakistan, Art. 199---Constitutional petition against interim order---Maintainability---Condi-tions---Interim maintenance, order for---Suit for recovery of maintenance allowance---Husband assailed order of Family Court whereby he was ordered to pay interim maintenance during pendency of proceedings; on the ground that the quantum of maintenance was exorbitant---Validity---Husband had contended that he had recently been sacked from his job---Disputed questions of facts regarding job, source of income and salary of the husband had been raised which could not be resolved in the Constitutional Jurisdiction of High Court and it was not possible to determine the veracity of claims of husband without recording evidence---Such exercise could not be undertaken in the Constitutional Jurisdiction of High Court especially when the finding was only tentative in nature and not final and impugned order was interim in nature---Under Art. 199 of the Constitution, petition against interim order was maintainable if the same was void ab inito, without jurisdiction or had attained status of a final order---Family Court had jurisdiction to fix interim maintenance allowance, therefore, the impugned order did not fall within such categories---Legislature had under S. 14(3) of the West Pakistan Family Courts Act, 1964 had specifically prohibited filing of appeal against interim order and if Constitutional Petition was allowed to be filed against such order, same would tantamount to defeating and diverting intent of the legislature---Petitioner had an alternate remedy available to him by challenging impugned order in appeal which he may file against ultimate order /judgment if passed against husband---Constitutional petition, being not maintainable, was dismissed in circumstances.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349; Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41 and Shahzad Hussain v. Judge Family Court 2011 CLC 820 distinguished.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Muhammad Irfan v. Judge Family Court, Sargodha and 2 others 2008 CLC 585; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S & GAD Karachi and others 1995 SCMR 1165 and Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447 rel.

Aamir Aziz Qazi for Petitioner.

Ch. Asif Karim for Respondents Nos. 2 and 4.

2013 Y L R 979

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SAQIB ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.12823-B of 2012, decided on 7th December, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Two versions provided qua role of accused---Complainant changing his initial version---Effect---Accused was alleged to have fired at the deceased---Complainant corrected his initial version and nominated accused with the role of general beating with a stick and attributed the fatal shot to the co-accused---Such second version given by complainant was never negated by him and he owned the same---Fact that scribe of application written on behalf of complainant had wrongly attributed role of firing to accused, whereas it was co-accused who had fired at the deceased, was found mentioned in zimini No.1, which was also recorded simultaneously with the F.I.R.---Prosecution witnesses made their statements under section 161, Cr.P.C. and mentioned that co-accused had fired at deceased and that accused was armed with a stick at the relevant time---During investigation weapon was recovered at instance of co-accused---Involvement of accused in the beating of deceased required further probe as body of deceased had only two injuries with a blunt weapon---Accused was admitted to bail in circumstances.

Muhammad Abbasi v. The State and another 2011 SCMR 1606 rel.

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

----S. 497---Bail---Case of two versions---Effect---Court should not exercise discretion in favour of accused merely on the ground that case contained two versions, rather the court should rely upon other material brought on record by the prosecution including F.I.R., statement of complainant under section 161, Cr.P.C as well as incriminating and circumstantial evidence for tentative assessment whether the accused was involved in the commission of the offence or not.

Muhammad Abbasi v. The State and another 2011 SCMR 1606 rel.

Muhammad Ahsan Bhoon for Petitioner.

Muhammad Ishaque, D.P.G. with Ghazanfar Ali, S.I. for Respondents.

Muhammad Iqbal Mohal for the Complainant.

2013 Y L R 993

[Lahore]

Before Amin-ud-Din Khan, J

NIAZ AHMAD and others---Petitioners

Versus

SHER MUHAMMAD---Respondent

Civil Revision No.522-D of 1996/BWP, decided on 28th September, 2011.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 35---Application for revival of suit---Limitation---Defendant contended that said application was barred by limitation under S.35 of the Punjab Pre-emption Ordinance, 1990 (repealed)---Validity---Application for revival of suit was accepted by Trial Court on the statement of the defendants subject to payment of costs, therefore, objection to filing said application after period of limitation was not available to the defendants---Suit was revived with consent of the defendants and in accordance with law---Revision was dismissed.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Pre-emption suit filed on 26-9-1988 was decreed---Contention of the defendant was that Zarar and Zarorrat were not pleaded by the plaintiff and suit could not be decreed under the Punjab Pre-emption Act, 1991---Validity---No codified law of pre-emption was in existence during the said period when the suit was filed---Zarar and Zarrorat had been declared by the Supreme Court to be repugnant to the Injunctions of Islam---Objection of the defendant with regard to pleadings of Zarar and Zarorat were without any backing of the law as Zarar and Zaroorat were not required in accordance with Islamic Law during an interregnum period i.e. 1st August, 1986 till 28th March, 1990, Islamic law was in field.

Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 rel.

Ch. Muhammad Tariq Shaheen for Petitioners.

Ahmad Mansoor Chishti for Respondent.

Date of hearing: 28th September, 2011.

2013 Y L R 1004

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL SHAKOOR---Appellant

Versus

AZEEM YOUSAF---Respondent

S.A.O. No.10 of 2009/BWP, decided on 20th January, 2012.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), Ss.17 & 49---Application for ejectment of tenant on plea of bona fide personal need of landlord---Tenancy agreement for a fixed period---Non-registration of---Effect---Appeal filed by tenant, maintainability of---Trial Court accepted ejectment application of landlord and appeal filed thereagainst by the tenant was also dismissed---Contentions of tenant were there were other shops available with the landlord and as such there was no personal need of the landlord; that all legal heirs of the original owner of the shop had not filed the ejectment petition, therefore, same was not competent, and that the tenancy agreement for the shop was for a fixed period of ten (10) years, which period had not yet expired, therefore, ejectment petition was not competent---Validity---Both the courts below had recorded concurrent findings with regard to the issues of personal need of landlord and filing of ejectment petition by him and not all the legal heirs of the original owner of the shop, therefore, there was no need to discuss said issues at present stage---Tenancy agreement for a period of more than one year could be created under S. 107 of Transfer of Property Act, 1882, and could also be created after registration of such an agreement under Ss. 17 and 49 of Registration Act, 1908---Tenancy agreement in the present case was an unregistered document, and in circumstances, it could be presumed to be for a period of less than one year, therefore, contention of tenant regarding duration of tenancy agreement had no force and both the courts below had reached a correct conclusion in that regard---Appeal filed by tenant was not maintainable and was, accordingly, dismissed with directions that tenant had four months to hand over the vacant possession of the suit shop to the landlord, and tenant was entitled to receive the amount of security paid to the predecessor of the landlord---Appeal was disposed of, accordingly.

Dr. Nisar Ali Khan and another v. P.I.A. through Chairman and another PLD 2004 Lah. 494 rel.

Raja Muhammad Sohail Iftikhar for Appellant.

A.R. Aurangzeb for Respondent.

Date of hearing: 20th January, 2012.

2013 Y L R 1013

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD YAR and others---Petitioners

Versus

ALLAH WASAYA and others---Respondents

Civil Revision No.358-D of 1993/BWP, decided on 27th September, 2011.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 33---Limitation Act (IX of 1908), S. 3---Specific Relief Act (I of 1877), S.8---Power of appellate court---Suit for possession of immovable property was dismissed concurrently, however the Appellate Court had reversed findings of the Trial Court on two issues before dismissing the suit---Contention of the plaintiff was that since findings of the Trial Court were reversed, the suit ought to have been decreed---Validity---Findings recorded by Appellate Court with regard to the said issues were not in accordance with law and were reversed by High Court---Findings of the Appellate Court on the said issues could be scrutinized by the High Court even if the cross-objections in accordance with O. OXLI, R.33, C.P.C. had not been filed by the defendants---Law of limitation had been rightly applied by the courts below which under S.3 of the Limitation Act, 1908 were bound them-selves to apply---Revision was dismissed in circumstances.

Sardar Muhammad Hussain Khan for Petitioners.

Ch. Muhammad Tariq for Respondents.

Date of hearing: 27th September, 2011.

2013 Y L R 1017

[Lahore]

Before Amin-ud-Din Khan, J

SHER SHAH---Petitioner

Versus

MUHAMMAD SULEMAN and 2 others---Respondents

Civil Revision No.657 of 2004, heard on 3rd October, 2012.

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

----S. 12---Suit for specific performance of agreement to sell immovable property was decreed concurrently---Contention of the defendant inter alia, was that agreement in question was not genuine and contained only signature of the other defendant and not the plaintiff; and had been prepared collusively---Validity---Performance of an agreement was required by both parties and if it was unilateral and signed by one party and signatures of other party were not available on said document, then same is not an agreement enforceable under law---Only one witness had been produced while scribe and stamp vendor were not produced---Two witnesses were important to prove execution of document on specific date as register of stamp vendor and petition writer proved fact of existence of document on a specific dispute in case of a dispute---Findings of courts below were against material facts and evidence and were set aside---Revision was allowed, in circumstances.

Tahir Hussain Malik v. Mst. Najma Rafi 1995 SCMR 1407; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 and Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442 ref.

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

----S.37---Enforceability of agreement---Agreement containing signature of one party only---Effect---Performance of an agreement was required by both parties and if it was unilateral and signed by one party and signatures of other party were not available on said document, then same is not an agreement enforceable under law.

Malik Muhammad Aslam for Petitioner.

Ch. Muhammad Hanif for Respondents.

Date of hearing: 3rd October, 2012.

2013 Y L R 1035

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

ALI MUHAMAMD and others---Respondents

Civil Revision No.305-D of 2002/BWP, decided on 24th November, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Making of talbs---Delivery of notice, proof of---Suit for pre-emption was decreed by Trial Court but said order of Trial Court was set aside by Appellate Court---Validity---No mention of place of knowledge of impugned sale in the plaint and no specific time had been mentioned in the plaint---Date, time and place of making Talb-e-Muwathibat was also missing from the plaintiff's statement as a witness---Delivery of notices to the vendees/defendants with acknowledgement had not been produced in evidence and hence was not proved---No defect in order of Appellate Court---Revision was dismissed.

Raja Muhammad Sohail Iftikhkar for Petitioner.

Fazal Mahboob Chughtai for Respondents.

Date of hearing: 24th November, 2011.

2013 Y L R 1039

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SURRAYIA TABBASUM through L.Rs.---Petitioners

Versus

Subedar Major FAZAL KARIM---Respondent

Civil Revision No.2054 of 2004, heard on 11th June, 2012.

Specific Relief Act (I of 1877)---

----Ss.8 & 27(b)---Suit for recovery of possession of immovable property---Bona fide purchaser, principle of---Concurrent findings of fact by two courts below---Plaintiff claimed that she purchased suit land in year, 1967 through registered sale-deed and defendant forcibly took possession---Defendant claimed to be bona fide purchaser for valuable consideration---Validity---Defendant was claiming title on the basis of sale-deed executed in his favour but sale-deed in favour of previous owner, from whom defendant purchased the land, proved to be forged and fictitious, therefore, sale-deed in favour of defendant did not create any title or interest in his favour---Defendant claimed to be bona fide purchaser for value but no evidence was led on such point---For raising plea of bona fide purchaser, defendant had admitted that he was claiming the property which was earlier sold in favour of plaintiff---Findings of both the courts below were against admitted fact and were not sustainable in the eye of law---High Court, in exercise of revisional jurisdiction set aside concurrent judgments passed by two courts below and suit filed by plaintiff was decreed in her favour---Revision was allowed in circumstances.

Fazal Hussain and another v. Abdul Hamid PLD 1071 Lah. 89 rel.

Ahmad Waheed Khan for Petitioners.

Muhammad Iqbal Ghazanvi for Respondent.

Date of hearing: 11th June, 2012.

2013 Y L R 1046

[Lahore]

Before Shahid Hameed Dar, J

UMAR FAROOQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16383-B of 2011, decided on 14th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss.392 & 411---Robbery, dishonestly receiving stolen property---Ad interim pre-arrest bail, confirmation of---Further inquiry---Accused along with his co-accused was alleged to have entered the house of the complainant, rendered the inmates of the house hostages and snatched numerous valuables at gun-point---Accused was not named in the F.I.R. nor in the statements of prosecution witnesses---Accused had in the year before, moved an application before the police with the contention that he had been looted at gun-point by four unknown persons which led to the initiation of proceedings under Ss.107 & 151, Cr.P.C against the brother of one of the witnesses of the accused's case---Said witness might have been biased against the accused for such reason---Investigating Officer had failed to collect any viable connecting evidence against the accused and had been relying on the statements of the co-accused who allegedly disclosed accused as one of their companion during the occurrence---Accused was admittedly the next door neighbor of the complainant---Call-logs of accused's cell phone might have shown a contact between accused and nominated co-accused but what this was all about, could only be resolved during trial---No evidence existed to believe complainant's version that accused abetted his co-accused in the commission of the crime---Accused's case was open to further probe---Ad-interim pre-arrest bail granted to accused was confirmed, in circumstances.

Petitioner in person with Mian Muhammad Sikandar Hayat for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State.

Muhammad Bedar Bakhat Bajwa for the Petitioner.

Gulzar A.S.-I. with record.

2013 Y L R 1055

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. AZIM KHATOON---Petitioner

Versus

Mst. JINDAN through L.Rs. and another---Respondents

Civil Revision No.315 of 2007, decided on 2nd May, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction claiming ownership of land was dismissed concurrently---Contention of the plaintiff was that she was daughter of the original owner of the land who belonged to the Shia sect, therefore, she was the sole legal heir of the land---Validity---Plaintiff filed the suit but did not appear in support of her version that her mother professed the Shia sect---Husband of the plaintiff who prosecuted suit on her behalf admitted that she belonged to Sunni sect---Mutation of inheritance of plaintiff's other family members showed that her mother had been professing the Sunni sect---No illegality was found in orders of courts below---Revision was dismissed.

Messrs M.A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney 2005 CLD 845 and Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614 distinguished.

Malik Muhammad Tariq Rajwana for Petitioner.

2013 Y L R 1062

[Lahore]

Before Mehmood Maqbool Bajwa, J

LAHORE DEVELOPMENT AUTHORITY through Director-General and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.17008 of 2012, decided on 18th October, 2012.

Civil Procedure Code (V of 1908)---

----O. XIV, Rr. 1 & 5---Specific Relief Act (I of 1877) Ss.9 & 54---Suit for possession and perpetual injunction---Framing / casting of issues---Application of defendants under O. XIV, Rule 5, C.P.C. for casting two additional issues was dismissed concurrently---Contention of the defendants was that said issues arose from the pleadings of the parties and as such they should have been framed---Validity---First issue proposed by defendants related to the non-joinder of necessary parties which was not raised by defendants in their written statement, either in preliminary objections or while controverting assertions of plaintiff on merits and therefore, said issue did not arise from pleadings of the parties---Second issue was not framed in view of specific stance taken by defendants in the written statements on merits and they had also led evidence accordingly, and therefore, there could be no two opinions that defendants were conscious and cognizant of their stance taken in the written statement, and there was no need to frame said issue in the application as the controversy could be decided by taking into consideration the evidence led by the defendants---Application of the defendants was rightly dismissed---Revision was dismissed, in circumstances.

Rana Zia Abdul Rehman for Petitioner.

Ch. Abdul Rab for Respondent No.3.

2013 Y L R 1091

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

FAROOQ AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1391 and Murder Reference No.516 of 2007, heard on 4th December, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No delay in reporting the matter to the Police---Names of witnesses of "Waj Takar", were not mentioned by the Police in the Column 4---Story of Waj Takar was also not mentioned in the report which was prepared by the Police after spot inspection---Names and the points showing the presence of witnesses of 'Waj Takar' were not mentioned in the rough site plan, as well as, in the scale site plan---Prosecution evidence of 'Waj Takar' was the result of an afterthought---Prosecution evidence of extra-judicial-confession in the case, was also not worthy of reliance---No empty was recovered from the place of occurrence, and no report of Forensic Science Laboratory was on record---Evidence of recovery was only of corroborative nature, and conviction of accused could not be sustained merely on the basis of such recovery---Motive was not mentioned in the F.I.R., but was introduced through the supplementary statement of the complainant, which was recorded later on---Prosecution had failed to prove the motive as alleged against accused---Abscondence of accused, per se, was not sufficient to prove the guilt of accused, in absence of any other direct or strong circumstantial evidence against accused---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence awarded to accused vide impugned judgment by the Trial Court, was set aside; accused was acquitted of the charge and was released, in circumstances.

Sajid Mumtaz and others v. Basharat and othes 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqub v. The State 1971 SCMR 756 and Nek Muhammad and another v. The State PLD 1995 SC 516 rel.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---Where prosecution case was based on circumstantial evidence; utmost care and caution was required for reaching at the just decision of the case---In such like cases, the chain link should be so inter-connected with each other that its one end touches the dead body, while the other end goes around the neck of accused; if any chain link was missing, then its benefit should be given to accused.

The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Ibrahim and others v. The State 2009 SCMR 407 and Muhammad Hussain v. The State 2011 SCMR 1127 rel.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence could only establish the kind of weapon used in the occurrence, the seat of the injury, the time elapsed between injury and death; and the time elapsed between death and post-mortem examination---Medical evidence, could never be a primary source of evidence for the crime itself, but it was only a corroborative piece of evidence.

(d) Criminal trial---

----Abscondence of accused---Abscon-dence, per se was not sufficient to prove the guilt of accused, in absence of any other direct or strong circumstantial evidence against accused.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Rohtas Khan v. The State 2010 SCMR 566 and Tahir Khan v. The State 2011 SCMR 646 rel.

Zafar Iqbal Chohan for Appellant.

Arshad Mehmood, Deputy Prosecutor General for the State.

Javaid-ur-Rehman for the Complainant.

Date of hearing: 4th December, 2012.

2013 Y L R 1118

[Lahore]

Before Ch. Shahid Saeed, J

NAZISH ISHAQ and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE LIAQUATPUR and 3 others---Respondents

Writ Petition No.4971 of 2010/BWP, decided on 23rd November, 2010.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower was decreed---Amount of dower was reduced by Appellate Court on the ground that the wife had not proved the Nikahnama---Validity---Perusal of Nikahanma showed that wife had rightly claimed the amount of dower mentioned in the Nikahnama---Contention of husband that some fabrication had been made could not be believed since no Nikah could be performed without dower---No need existed to prove Nikahnamma by producing witnesses when the parties had admitted to the Nikah---High Court set aside findings of Appellate Court to the extent of dower and increased the same to the amount prayed for by the wife---Constitutional peti-tion was allowed.

Wali Dad's case 1999 CLC 163 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Nikahnamma, proof of---No need existed to prove Nikahnamma by producing witnesses when the parties had admitted to the Nikkah.

Wali Dad's case 1999 CLC 163 distinguished.

S.M. Asif Bokhari for Petitioners.

A.R. Aurangzeb for Respondents Nos.3 and 4.

2013 Y L R 1121

[Lahore]

Before Shahid Waheed, J

RASOOL BIBI and others---Petitioners

Versus

ZENAB BIBI and others---Respondents

Civil Revision No.2540 of 2012, decided on 12th October, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 1 & 2---Specific Relief Act (I of 1877) S. 12---Suit for specific performance of agreement to sell immovable property---Temporary injunction, grant of---Delay---Effect---Delay of seven years by the plaintiffs/ applicants cast an aspiration on their conduct---In order to seek a temporary injunction, a party had to be vigilant and should approach the court without loss of time to show its bona fide---Delay in such matters normally disentitled a party from seeking relief of injunction---Revision was dismissed.

M. Y. Corporation (Pvt.) Ltd. v. Messrs Ram Developers and 2 others PLD 2003 Kar. 222 rel.

Ch. Jamil Ahmad Sandhu for Petitioners.

Sardar Muhammad Khalil for Respondents.

Date of hearing: 12th October, 2012.

2013 Y L R 1127

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD YAQOOB and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. l and Criminal Appeal No.1722 of 2012, decided on 17th January, 2013.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-a-amd, common intention--Suspension of sentence---Bail, grant of---Allegation against two accused persons of firing at the deceased--Single bullet injury attributed to both the accused---Question remained as to who amongst the two accused caused the injury---Accused persons were found innocent by the police during investigation---Sentences awarded to accused persons were suspended in circumstances and they were released on bail.

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

----Ss. 426 & 497---Application for suspension of sentence---Principles---Principles enumerated for the grant of bail under S. 497, Cr. P. C might be considered at the time of deciding an application for suspension of sentence under S. 426, Cr.P.C.

Muhammad Afzal Siddique for Petitioners.

Malik Zaman Haider for the Complainant.

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

2013 Y L R 1133

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD ASHIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18519-B of 2012, decided on 4th January, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i), 337-F(vi), 354 & 34---Shajjah-i-khafifah, ghayr-jaifah­-damiyah, ghayr-jaifah-munaqqillah---Bail, grant of-Further inquiry---Case of cross-­versions---Accused of cross-version granted bail---Effect---Initially an F.I.R. was recorded on the statement of brother of accused---Subsequently cross-version was put forward by the complainant party---Co-accused of present accused and accused of the cross-version were already allowed bail---Offences with which accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C---Accused was a previous non-convict---Cross-version was recorded with a considerable delay---Investigation of case was complete---No chance existed of early conclusion of trial of accused---Case was one of further inquiry-Accused allowed bail accordingly.

PLD 2009 SC 58 rel.

(b) Criminal Procedure Code (V of 1898)

----S. 497---Bail---Case of cross-versions---Accused of cross-version granted bail---Effect---Where one party was allowed bail then the other party also became entitled for the same treatment.

PLD 2009 SC 58 rel.

Zafar Iqbal Chohan for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State.

Muratib Ali, S.I. with record.

Mian Muhammad Ali for the Complainant.

2013 Y L R 1138

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

KHADIM HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.53 and Criminal Revision No.69 of 2006, decided on 6th September, 2012.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd, rioting and common object---Appreciation of evidence---Prompt reporting of the matter to Police----Complainant had no time for, consultation or deliberation---Complainant who was real brother of the deceased, was residing in the adjacent house, and the prosecution witness was their servant---Presence of said witnesses at the place of occurrence at the relevant time, in circumstances, was neither improbable nor could be doubted---Evidence of such witnesses could not be discarded only due to relationship with the deceased, in absence of any inconsistency or inherent infirmity in their statements, especially when no motive for false implication had been alleged against them---Both the witnesses had categorically stated that they saw and fully recognized the accused, firing at the deceased and attributed only one fire shot to the deceased, and only one fire-arm entry wound on the dead body of the deceased was observed in the medical evidence---Statements of both the prosecution witnesses, in circumstances, were in line with medical evidence---Both eye-witnesses' remained consistent on all material aspects of the prosecution case, and their evidence was substantially corroborated by the medical evidence, and being trustworthy, could safely be relied upon---Minor contradictions in the statements of the prosecution witnesses, being natural, did not cast any adverse effect on their credibility---Prosecution had fully established the guilt of accused beyond any shadow of doubt---Findings of the Trial Court were based on cogent reasons---Accused having rightly been convicted under S.302(b), P.P.C., conviction and sentence awarded by the Trial Court, were maintained, in circumstances.

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

----S. 302 (b)---Qatl-e-amd---Petition for enhancement of sentence---No motive was alleged in the F.I.R., and it was introduced later on the statement of the prosecution witness, which could not be substantiated---Accused fired a single shot, and did not repeat same at the deceased---Rifle allegedly recovered on the pointation of accused, was not sent to Ballistic Expert for opinion---Said recovery of weapon of offence remained inconsequential, in circumstances---Trial Court had rightly withheld the penalty of death and had awarded the life imprisonment---No cogent or legal justification existed, in circum­stances, for enhancement of the punish­ment---Revision petition was dismissed, in circumstances.

(c) Criminal trial---

----Witnesses---Relationship of witnesses---Mere relationship of witnesses, was not a ground itself to discredit their testimony.

Khizer Hayat v. The State 2011 SCMR 429 rel.

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

----Ss.302(b), 148 & 149---Qatl-e-amd, rioting and common object---Appreciation of evidence-Sentence-Benefit of doubt as extenuating circumstances---Scope---Accused was entitled for benefit of doubt as extenuating circumstance while deciding the question of sentence---Prosecution was bound by law to exclude all the possible extenuating circumstances in order to bring the charge home to accused for the award of penalty of death.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

Abdul Ghaffar Khan Chughtai for Appellant.

Zafar Iqbal Awan for the Complainant.

Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 6th September, 2012.

2013 Y L R 1146

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. SAKINA BIBI---Petitioner

Versus

D.P.O. and others---Respondents

Writ Petition No.6086 of 2012, decided on 18th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition--Application before Justice of Peace based on mala fide---Complainant (petitioner) had filed an application under Ss.22-A and 22-B, Cr. P. C before Justice of Peace alleging that police officials conducted a raid at her house, misbehaved with the ladies of the house and took away different articles including animals---Police report disclosed that complainant had filed application before Justice of Peace just to avoid the arrest of her son, who was wanted in a dacoity case---Justice of Peace, without looking into the facts available on record, directed the District Police Officer (DPO) to take appropriate action against the delinquent police officers---Validity---Application of the complainant before the Justice of Peace appeared to be ridiculous as it was beyond imagination that a police party while conducting raid could be able to take away (numerous) household articles and animals---Application filed by complainant seemed to be based on mala fide and it appeared that she wanted to restrain the police officials from arresting her son, who was required in a dacoity case---Justice of Peace did not examine the application and gave directions to District Police Officer (DPO) in a mechanical manner---Order passed by Justice of Peace was declared to be of no legal effect and set aside, and application filed by complainant under Ss. 22-A and 22-B, Cr.P.0 was dismissed---Constitutional petition was disposed of accordingly.

Mian Shahzad Siraj for Petitioner.

Wali Muhammad Khan, A.A.-G. for Respondents.

2013 Y L R 1151

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

NAAZIM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.195, Criminal Revision No.311 and Murder Reference No.59 of 2007, heard on 3rd September, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---No direct or indirect motive had been alleged, brought and proved by the prosecution against accused---F.I.R. was lodged with delay, and possibility of deliberation and consultations could not be ruled out---Both the prosecution witnesses were related to the deceased as well as to the complainant---Case of the complainant party remained consistent so far as F.I.R. and statement of eye-witnesses recorded under S.161, Cr.P.C. were concerned while both the prosecution witnesses took their stances otherwise---Complainant had also improved his statement---Appeal against acquittal of co-accused had been dismissed by High Court; it could safely be concluded that prosecution case had not been believed as to the involvement of said co-accused despite the recovery of weapon of offence was effected from him---Other co-accused had also been acquitted by the Trial Court as well as High Court---Statement of sole witness had been found uncorroborated by any independent evidence---Recovery of rifle allegedly effected from the accused, was insignificant because there was no positive report as no crime empty was taken into possession from the spot by the Police---Presence of both the eye-witnesses at the place of occurrence was highly doubtful; their version had been found dishonestly improved, tainted one and was disbelieved--Prosecution, in circumstances, had failed to prove its case against accused beyond shadow of reasonable doubt---Conviction and sentence imposed on accused by the Trial Court, were set aside and he was acquitted of the charge by extending him benefit of doubt and was set at liberty, in circumstances.

Azam Nazir Tarar for Appellant.

M. Tariq Zafar for the Complainant.

Tariq Javaid, DDPP for the State.

Date of hearing: 3rd September, 2012.

2013 Y L R 1165

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD EHSAN---Petitioner

Versus

GHAZI KHAN---Respondent

Civil Revision No.1480 of 2003, heard on 26th November, 2010.

Punjab Pre-emption Act, 1991 (IX of 1991)---

----Ss. 13 & 5---Suit for possession through pre-emption---Making of tables---Talb-e-Muwathibat and Talb-e-Ishhad---Petitioner assailed orders of the courts below on the ground that he had successfully proved the making of the Talbs and the courts below had misread the evidence---Validity---Plaintiff had claimed making of Talb-e-Muwathibat in the plaint but had neither in the plaint, nor in the notice of Talb-e-Ishhad, specified the time when he received the information of sale of suit-land---Plaintiff did not specify the time or the name of the person who conveyed such information to him---Witness of plaintiff did not specify as to when, where or on which date and time, he informed the plaintiff of the transaction in question---Other witnesses of the plaintiff only stated that the plaintiff had declared himself as a co-sharer in the khata and did not state that the plaintiff asserted that he would exercise his right of pre-emption---Making of Talb-e-Muwathibat had not been proved by such witnesses---Plaintiff had contradicted his date of knowledge as alleged in the plaint, which he claimed to be on the 17-10-1997, whereas the sale took place on 14-10-1997--Plaintiff did not produce the postal receipts of sending the notice of Talb-e-Ishhad to the defendant, although he produced a receipt of acknowledgement---Concurrent findings of the courts below were in accordance with the law and the plaintiff had failed to prove the making of the Talbs in accordance with law---Revision was dismissed.

Hafiz Khalil Ahmad for Petitioner.

Nemo for Respondent.

Date of hearing: 26th November, 2010.

2013 Y L R 1175

[Lahore]

Before Shahid Hameed Dar, J

ABDUL MANAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos. 1 of 2012 in Criminal Appeal No.58 of 2012, decided on 28th March, 2012.

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

----S. 426 (2-A)---Penal Code (XLV of 1860), Ss. 320/337-G/427---Qatl-e-khata by rash or negligent driving, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Suspension of sentence---Accused had been convicted and sentenced after about fifteen (15) months of the occurrence---Accused had not caused any injury to the deceased who lost his life in the fatal accident---Complainant had lodged the F.I.R. with the contention that accused overtook the vehicle of the deceased in a reckless manner due to which deceased's vehicle collided against a tree, resulting in his sudden death and causing severe injuries to the co-riders, whereas in the private complaint, complainant changed his stance with the allegation that the accused rammed his car into the vehicle of the deceased from behind, in consequence whereof, it crashed into a tree---Judgment of Trial Court showed that amended story advanced by the complainant had not been believed---All offences for which accused was convicted were bailable---Petition for suspension of sentence was allowed and accused was released on bail.

Abdul Habib Khan and another v. The Emperor AIR 1928 All. 211 rel.

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

----S. 426(2-A)---Penal Code (XLV of 1860), Ss. 320, 337-G & 427---Qatl-e-khata by rash or negligent driving, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Bail on basis of suspension of sentence---Scope---Language of S. 426(2-A), Cr.P.C showed that discretion of original court of jurisdiction convicting a person for a bailable offence was subject to its satisfaction that the convict had intention to file an appeal---Trial Court was bound by law to admit the convict to bail once it assured itself of the intention of the convict to file an appeal against the judgment/order of conviction---Grant of bail to a convict in bailable offences was an indefinable and inalienable right and mere heinousness of a bailable offence may not deter the court to release an accused/convict on bail who had filed an appeal against his conviction and sentence---Matter of right could not be allowed to be eclipsed by the quantum of punishment recorded by the court of original jurisdiction in a bailable offence.

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

----S. 426 (2-A)---Penal Code (XLV of 1860), Ss. 320, 337-G & 427---Qatl-e-khata by rash or negligent driving, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Bail on basis of suspension of sentence---Seriousness of the offence---Scope---How-soever serious an offence might be, if same was bailable and there was no reason, such as the likelihood of the accused absconding if released on bail, the seriousness of the offence would not alone justify a court in refusing bail to which a convicted person was entitled under the law.

Abdul Habib Khan and another v. The Emperor AIR 1928 All. 211 rel.

Mian Muhammad Arif for Petitioner.

Muhammad Ishaq Hanjra, Addl: Prosecutor General Punjab for the State.

Muhammad Ilyas Siddiqi for the Complainant.

2013 Y L R 1180

[Lahore]

Before Mazhar Iqbal Sidhu, J

WARIS ALI---Petitioner

Versus

The SATTE and another---Respondents

Criminal Miscellaneous No.10206-B of 2012, decided on 10th September, 2012.

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

----Ss. 498---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Ad interim pre-arrest bail, confirmation of---Role ascribed to accused seemingly irrational---Allegation against the accused was that he held the deceased in a "japha" (tight embrace) during the occurrence which provided an opportunity to the co-accused to fire and kill the deceased---Accused was not nominated in the F.I.R. and was only nominated after about two months on an application submitted by the complainant before the police---Deceased received three fire shots injuries, all of which were entry wounds, therefore, person holding the deceased in a "japha" (tight embrace) would have had the same level of apprehension of receiving fire shot injuries---All injuries on the body of the deceased were found to be blackened, therefore, possibility of exit wounds could not have been ruled out, which might have caused the fire-shots to hit the accused as well---Accused had been found alien to the motive---Record showed that accused had not allured deceased to come to the place of occurrence and such allegation had been levelled against co-accused---Factual mala fide on part of the complainant existed because role allegedly ascribed to the accused did not prima facie seem to be rational and appeared to be repellent to the senses---Prosecution's own case was that accused did not cause any injuries and nothing was to be recovered from him---Regarding abscondence of accused, he was not a resident of the place where the incident took place and as soon as he had information of his alleged involvement, he applied for pre-arrest bail, which remained pending for three months and on its dismissal, he came to the High Court---Abscondence by itself, provided the same was explained, could not be taken as a bar to grant of bail, when otherwise a case for bail was made out---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----S. 498---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Pre-arrest bail in a murder case---Scope---Prime consideration for pre-arrest bail in a murder case was mala fide.

Muhammad Siddique Awan for Petitioner.

Abdul Razzaq Ch. for the Complainant.

Ch. Muhammad Akram Tahir, DDPP with Noor Ahmad A.S.-I. for the State.

2013 Y L R 1190

[Lahore]

Before Abdul Sami Khan, J

Mst. HALEEMA BIBI---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Miscellaneous No.6413-CB of 2012, decided on 11th December, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 148, 149, 364 & 201---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, kidnapping or abducting in order to murder, causing disappearance of evidence of offence---Petition for cancellation of bail, dismissal of---Accused persons allegedly killed the deceased, however they were granted pre-arrest bail by the Trial Court---Validity---Accused persons were declared innocent by the investigating officer and case was found to be false and baseless---Dying declaration of deceased was also on record, wherein she had allegedly stated that she had taken poison herself---Authenticity of said dying declaration could be thrashed out after recording of evidence by Trial Court---Father of deceased also appeared before Medical Officer and recorded his statement to the effect that he did not want to proceed with the case anymore---No allegation of misusing or abusing concession of bail had been levelled by the complainant against accused persons---Petition for cancellation of bail was dismissed in circumstances.

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

----S. 497(5)---Cancellation of bail---Scope---For cancellation of bail very strong, exceptional and cogent reasons regarding misusing, abusing, hampering with prosecution evidence and repeating of the same offence were required.

Faisal Waheed v. The State 1999 PCr.LJ 882; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 rel.

Saif Ullah Khan for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State with Shaukat, S.-I. with record.

Arshad Ali Chohan for Respondents Nos. 2 to 6.

2013 Y L R 1198

[Lahore]

Before Muhammad Yawar Ali, J

MOIZ ALY MANJI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.14877-B of 2012, decided on 1st March, 2013.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Ad interim pre-arrest bail, confirmation of---Cheques referred to in the F.I.R. had not been issued in favour of complainant as the name of complainant did not figure anywhere---Question as to whether cheques referred to in the F.I.R. were issued by the accused with dishonest intention in order to discharge an existing financial obligation, would be determined by the Trial Court during trial---Accused was charged with S. 489-F, P.P.C, which carried maximum punishment of three years imprisonment and thus it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused had also alleged that F.I.R. was lodged by complainant with mala fide intention and ulterior motives---Record did not show that accused was a previously convicted offender---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances.

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

----S. 497(1)---Offences not punishable with death, imprisonment for life or imprisonment for ten years---Bail---Scope---Grant of bail in case of such offences was a rule and refusal thereof an exception.

Syed Ijaz Ali Sabzwari for Petitioner.

Saeed Ahmad Sheikh, A.P.-G. and Taimoor Ali, Inspector for the State.

Hasan Safdar Khan for the Complainant.

2013 Y L R 1225

[Lahore]

Before Abdul Sami Khan, J

MEHBOOB alias BOOBA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.17471-B of 2012, decided on 11th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 365, 148, 149 & 109---Qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting armed with deadly weapons, unlawful assembly, abetment, ghayr-jaifah damiyah, other hurt---Bail, grant of---Further inquiry---Non-attribution of any specific injury---Effect---Accused was alleged to have inflicted injuries on the injured witnesses---No injury to any of the deceased was attributed to accused, and even otherwise no specific injury was attributed to accused---Vicarious liability of accused could be determined by Trial Court at the time of trial---Accused was a previous non-convict---Investigation of case was complete---Case was one of further inquiry---Accused was admitted to bail in circumstances.

Waseem Qaiser for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Zulfiqar Naul, S.-I. with record.

2013 Y L R 1239

[Lahore]

Before Mazhar Iqbal Sidhu, J

HASSAN RANA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15435-B of 2012, decided on 6th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 452, 336 & 109---Attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, itlaf-i-salahiyyat-i-udw, abet-ment---Accused allegedly fired at and injured the victim on the alleged perpetration of his (i.e. victim's) wife---Subsequent to the incident accused was apprehended from the house of victim's father---Victim and his mother had involved the accused in their statements---Wife of victim got divorce from him, after the occurrence and case diaries showed that she was related to the accused---Victim had become paraplegic and on account of the same he was bed-ridden---Nothing present in the case diaries went in favour of the accused---Delay in reporting matter to the police did not matter because of the circumstances of the case---Non-recovery of weapon of offence did not break the case of prosecution---Offence alleged fell within the prohibitory clause of S.497, Cr.P.C---Bail application of accused was dismissed in circumstances.

Rana Muhammad Sajjad Afzal for Petitioner.

M. Akhlaq, D.P.G. and M. Khan, S.I. for the State.

M. Sohail Dar for the Complainant.

2013 Y L R 1250

[Lahore]

Before Mazhar Iqbal Sidhu, J

ABDUL RAHEEM alias NAUMAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.295 and Criminal Revision No.167 of 2010, heard 21st December, 2011.

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

----Ss.367-A & 377---Kidnapping or abducting in order to subject person to unnatural lust, unnatural offence---Appreciation of evidence---Litigation over landed property was going on between the parties prior to the present incident---Occurrence was unseen---Minor victim only had narrated the occurrence who was 10 years old---Both the accused were tried as juveniles being 14 to 16 years of age---Medical evidence had not proved the commission of an unnatural offence with the victim and had not corroborated his statement---Positive report of Chemical Examiner about anal seminal swabs of the victim being simply of corroborative nature was of no significance, when the substantive evidence about the commission of offence was not believable---Safe deposit of the anal swabs in the office of Chemical Examiner was doubtful as the prosecution witness entrusted with the job had been given up by the prosecution as being unnecessary---Accused were acquit-ted in circumstances.

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

----Ss.367-A & 377---Unnatural offence---Appreciation of evidence---Chemical Examiner's report---Value---Positive report of Chemical Examiner being of corroborative nature has no value, when substantive evidence about the commission of offence is not belivable.

Aamer Shafique Qureshi for Appellants (in Criminal Appeal No.295 of 2010 and for Respondents in Criminal Revision No.167 of 2010).

Raja Zahur Ahmed for the Complainant/Respondent (in Criminal Appeal No.295 and for petitioner Criminal Revision No.167 of 2010).

Rana Kashif Saleem Arfaa Law Officer for the State.

Date of hearing: 21st December, 2011.

2013 Y L R 1257

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD LATIF and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.149-J, 670, Criminal Revision No.634 and Murder Reference No.229 of 2010, heard on 17th January, 2012.

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

----Ss. 302(b)/149 & 324/49---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---F.I.R. was not promptly lodged---Possibilities of concoction and deliberation were always present in the case of a delayed F.I.R.---Eye-witnesses were not only closely related to the deceased, but admittedly complainant party was inimical towards accused party---Statements of said witnesses, therefore, required independent corroboration, which was lacking in the case---Prosecution witnesses had improved their statements at the trial with regard to identification of accused in torch light, besides moon light on the night of occurrence, but torches were never produced before Investigating Officer---Identification of accused in moon-light was quite difficult because of the position of moon on that night---Evidence of identification in torch-light was insignificant, when such torch was not taken into possession by the police---Medical evidence was not in line with ocular testimony---Injury on the person of one eye-witness did not stamp her with truth---Dishonest improvements made by prosecution witnesses on material aspect of the case regarding identification of accused, had made them unreliable---No crime empty having been secured from the spot, gun recovered from the accused was of no avail to prosecution and the report of Forensic Science Laboratory showing the gun being in working condition, was of no consequence---Recovery of two lead bullets after twenty five days of occurrence from the wooden doors of the house, was highly doubtful, particularly when the same were not sent to Forensic Science Laboratory for comparison with the recovered gun---Motive was not proved on record, which as alleged could not be considered against the accused on account of the deep rooted enmity between the parties---Abscondence of accused, per se, was not a proof of the guilt against him, even if found convincing---Accused were acquitted in circumstances on benefit of doubt.

Ashrar alias Ashroo and another v. The State 2005 PCr.LJ 1489; Amanullah and 4 others v. The State PLD 1978 Kar. 792; Umar Hayat and others v. The State 1997 SCMR 1076; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ishaq v. The State 2007 SCMR 108; Ali Sher and others v. The State 2008 SCMR 707; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Said Ahmad's case 1981 SCMR 795; Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.

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

----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Delayed F.I.R.---Possibilities of concoction and deliberation are always present in the case of a delayed F.I.R.

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

----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Identification of accused in torch light---Scope---Identification of accused in torch light is always treated as a weak piece of evidence---Evidence of identification in torch light is insignificant, when the torch on the basis of which the accused were identified, was not taken into possession by the Investigating Officer.

Umar Hayat and others v. The State 1997 SCMR 1076 ref.

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

----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Injured witness---Credibility---Injuries on a prosecution witness only indicate his presence at the spot, but the same are not an affirmative proof of his credibility and truth.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Said Ahmad's case 1981 SCMR 795 ref.

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

----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Improvements made by witnesses---Effect---Witnesses who make improvements in their statements on material aspects of the case are not worthy of reliance.

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

----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Abscondence of accused---Effect---Abscondence, per se, is not a proof of the guilt of an accused, which however can create a suspicion against him, but suspicion however strong cannot take the place of proof required for punishment of accused---Evidence of abscondence, even if found convincing, would not be sufficient by itself to warrant conviction on a charge of murder.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.

Mrs. Erum Sajjad Gul for Appellants.

Ch. Ghulam Mustaf, D.P.G. for the State.

Zahid Hussain Khan for the Complainant.

Date of hearing: 17th January, 2012.

2013 Y L R 1281

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHAHID HUSSAIN and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.12513-B of 2012, decided on 26th September, 2012.

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, rioting armed with deadly weapons---Bail, refusal of---Accused was alleged to have fired at complainant's brother (deceased) which resulted in the latter's death---Co-accused was alleged to have fired at the complainant's son, which resulted in serious injuries---Motive for the occurrence was that accused party had suspicion that deceased had abused them in their house due to a land dispute---Accused and co-accused both had been attributed fire-shot injuries---Investigating officer had not taken the view that accused and co-accused were present empty-handed at the spot---Overwhelming evidence was available on record against accused and co-accused in the form of medical and ocular account coupled with the motive attributed to them, which fully connected them with the commission of the offence---Mere fact that police during investigation introduced different version of the case could not nullify the evidence available on record, which was collected in a very promptly lodged F.I.R. ruling out the possibility of false implication and substitution---Accused and co-accused were refused bail in circumstances.

Ghulam Mujtaba Qadri v. The State and others 2012 SCMR 662; Ehsan Ullah v. The State 2012 SCMR 1137; Subeh Sadiq alias Saabo alias Kalu v. The State and others 2011 SCMR 1543; Haji Muhammad Nazir and others v. The State 2008 SCMR 807; Amir Ali and others v. The State 1984 SCMR 521 and Malik Waheed alias Abdul Hameed v. The State and another 2011 SCMR 1945 distinguished.

Mudassar Altaf and another v. The State 2010 SCMR 1861 rel.

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

Muhammad Zubair Khalid Chaudhry for Petitioners.

Muhammad Ishaque, D.P.G. with Dilawar Bajwa, S.I. for the State.

Muhammad Aurangzeb for the Complainant.

2013 Y L R 1289

[Lahore]

Before Mehmood Maqbool Bajwa, J

Mst. HAMEEDA BIBI and 5 others---Petitioners

Versus

ATAA MUHAMMAD---Respondent

Civil Revision No.963 of 1996, heard on 25th June, 2012.

Civil Procedure Code (V of 1908)

----O. XXXIX Rr. 1 & 2---Specific Relief Act (I of 1877) S. 42---Temporary injunction, grant of---Suit for declaration in respect of possessory right---Contention of plaintiff was that he was in possession of the suit property as a tenant and sought declaration as to his right to possess suit property---Application of plaintiff under O. XXXIX Rules 1 & 2, C.P.C. for grant of temporary injunction restraining defendant from interfering in possessory rights of plaintiff, was allowed---Subsequently, plaintiff made application under O. XXXIX Rule 2(3), C.P.C. contending that despite the prohibitory order of Trial Court, the defendants had dispossessed the plaintiff---Said application was allowed by Trial Court, and direction was issued to the Collector to hand over possession to plaintiff---Contention of defendants was that the plaintiff was never in possession of suit property and therefore, impugned order was wrong---Validity---Plaintiff during pendency of the suit became dispossessed from the suit property and said fact was taken into consideration by the courts below---Record clearly suggested that possession of plaintiff was disturbed by measures and means not warranted by law; and no other evidence was required to prove the factum of possession and dispossession of plaintiff---Plaintiff had therefore, proved his case regarding possession at the time of institution of suit and then dispossession, therefore, findings of courts below were based on evidence and could not be disturbed---Revision was dismissed.

Malik Tariq Rajwana for Petitioners.

Mian Babar Saleem for Respondent.

Date of hearing: 25th June, 2012.

2013 Y L R 1296

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD RAMZAN---Petitioner

Versus

MUHAMMAD ANWAR---Respondent

Civil Revision No.2558 of 2010, decided on 19th July, 2010.

Canal and Drainage Act (VIII of 1873)---

----S. 68-A---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Suit of petitioner assailing legality of order of Canal Department for making watercourse on land of petitioner was decreed by Trial Court and same was affirmed by Appellate Court---Appellate Court in its order stated that the order shall not preclude the respondent from moving an application under S.68-A of the Canal and Drainage Act, 1873 for restoration of watercourse---Contention of the petitioner was that the matter had been finally decided by the civil court and the same could not be re-opened under the Canal and Drainage Act, 1873---Validity---Matter fell under the Canal and Drainage Act, 1873 which provided adequate relief in case of any dispute---Order of the Appellate Court was in accordance with law and did not infringe rights of the petitioner---No illegality having been pointed out in the impugned order, revision was dismissed.

Arshad Iqbal Bhullar for Petitioners.

Rana Shahshad Khan, A.A.-G. with Syed Raza Hussain Bukhari, Ziladar section Pakpattan, Canal Department.

2013 Y L R 1300

[Lahore]

Before Shahid Hameed Dar, J

ABDUL SAMAND---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13434-B of 2012, decided on 27th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395 & 397---Dacoity, robbery or dacoity, with attempt to cause death or grievous hurt---Bail, grant of---Further inquiry---Personal grudge of police---Possibility of false implication---Belated test identification parade---Truck belonging to complainant had been intercepted on a main road by two cars, wherefrom armed men alighted and drove away the truck, which was loaded with yarn---Complainant rendered a supplementary statement before the investigating officer whereafter a test identification parade was conducted during the course of which accused was picked up with the allegation that he was the person driving one of the cars which intercepted the truck---Accused was neither nominated in the F.I.R. nor in the supplementary statement of the complainant---Probability of false implication of accused existed as he had filed a writ petition against the Station House Officer of the Police Station concerned for recovery of his employees and vehicles---Bailiff appointed by Court found the said vehicles belonging to accused parked at the Police Station concerned---Fury of the Station House Officer in such circumstances was understandable---Test identification parade took place about 5 ½ months after the occurrence, the veracity whereof could not be truly assessed at bail stage---Accused had no criminal history-Investigation into the case was complete and challan had already been submitted before the Trial Court---Accused was admitted to bail in circumstances.

Ch. Sohail Arif Sandhu for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor General Punjab for the State with Riaz S.I.

2013 Y L R 1304

[Lahore]

Before Ch. Muhammad Tariq, J

Syed MEHMOOD ALI SHAH---Petitioner

Versus

ZULFIQAR ALI and 6 others---Respondents

Writ Petitions Nos.16463 to 16469 of 2005, heard on 18th October, 2010.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 34 & 35---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for pre-emption---Trial Court set aside decree on application of the respondents under S. 12(2), C.P.C.---Contention of the petitioner inter alia, was that a consent decree under the repealed Punjab Pre-emption Act, 1913 (I of 1913) was not assailable under S. 12(2) of the C.P.C.---Validity---Perusal of record highlighted that the Trial Court in the light of controversial pleadings of parties had framed issues under S.12(2) of the C.P.C. and the applicants and the respondents had appeared personally as witnesses and had also produced documentary evidence---Applicants of applications under S. 12(2), C.P.C. purchased fractional shares of suit-land from the first successful pre-emptor, whereafter, the vendors of the properties were not in a position to make any conceding statement in favour of the petitioners as they were no longer owners of the suit-land---Contention of the petitioner that though the Punjab Pre-emption Act, 1913 was declared un-Islamic after 31-7-1986 but still a consent decree could be passed, was not warranted under the law---Orders of courts below were neither contrary to the law nor perverse and there was a concurrent finding of fact against the petitioners---Constitutional petition was dismissed.

Ch. Mushtaq Ahmad Khan for Appellant.

Nemo for Respondent.

Date of hearing: 18th October, 2010.

2013 Y L R 1308

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SABHRAI---Petitioner

Versus

WAZIR AHMAD and 16 others---Respondents

Civil Miscellaneous No. 1049-C of 2011 in R.S.A. No.184 of 1984, decided on 1st November, 2012.

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

----S.12(2)---Punjab Pre-emption Act (IX of 1991), S. 6---Application under S.12(2), C.P.C.---Maintainability---Scope---Suit for pre-emption was decreed---Application under section12 (2) to set aside decree---Contention of applicant was that he had purchased suit property during pendency of suit of pre-emption and said decree should be set aside---Validity---Decree in favour of plaintiff remained intact up to the level of Supreme Court and if any fraud had been committed by the vendor with the applicant, he could separately sue them for commission of fraud---Application under S.12(2), C.P.C. was only maintainable when any decree had been procured by practising fraud upon the court---No allegation of fraud upon the court by decree-holder had been levelled in the application---Application was dismissed, in circumstances.

Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900; Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434 and Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 rel.

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

----S. 12(2)---Application under S. 12(2), C.P.C. was dismissed by Trial Court---Applicant thereafter filed another application under S. 12(2), C.P.C. before High Court--- Maintainability--- When applicant had filed application under S.12(2), C.P.C. before Trial Court and it was dismissed, the applicant was bound under law to challenge the dismissal order before a higher forum---Applicant, in the present case, had filed another application before High Court, which was not maintainable.

Mazhar Ali Bhatti for Applicant.

Nemo for Respondents.

2013 Y L R 1318

[Lahore]

Before Shahid Hameed Dar, J

MUHAMAMD FAYYAZ and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1278-B of 2012, decided on 9th September, 2012.

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 deadly weapons, unlawful assembly---Bail, refusal of---Probability of early conclusion of trial on the directions of the Supreme Court---Effect---Accused persons were alleged to have fired indiscriminately at the deceased, which resulted in his death and taken the plea that they were not in the country at the time of the occurrence---Supreme Court had directed the Trial Court in the case to conclude the trial within four months and every probability existed that such direction would be complied with by the Trial Court and there was no reason to underestimate the intention of the Trial Court in such respect---Plea of alibi taken by accused persons required scrutiny of their oral as well as documentary evidence, which was not advisable at bail stage---Bail application was dismissed in circumstances.

Sardar Khurram Latif Khan Khosa for Petitioners.

Mirza Abid Majeed, Deputy Prosecutor General Punjab for the State with Muhammad Siddique Inspector.

Muhammad Ahsan Bhoon for the Complainant.

2013 Y L R 1334

[Lahore]

Before Amin-ud-Din Khan, J

KARIM BAKHSH and others---Petitioners

Versus

MITHOO KHAN and others---Respondents

Civil Revision No.582 of 2005, heard on 18th October, 2012.

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

----Art.103---Oral evidence cannot exclude documentary evidence.

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

----S.42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Concurrent findings of fact by two courts below---Fraudulent transfer---Misreading and non-reading of evidence---Plaintiffs claimed that transfer of suit property in the name of defendants was a result of fraud---Both the courts below concurrently dismissed suit and appeal filed by plaintiffs---Plea raised by plaintiffs was that both the courts below ignored documentary evidence relied upon oral testimony of witnesses---Validity---Defendants failed to prove sale in their favour as well as they being bona fide transferees---Mode which was adopted by defendants for transfer of property in their favour was also important to be looked into, as one defendant became attorney of owner of suit property and sold property in favour of other defendant, who in turn gifted suit property to the attorney of the owner, such transfer was sufficient to prove fraud---Judgments and decrees passed by courts below were not only result of misreading and non-reading of evidence but also ignoring unrebutted documentary evidence, which was part of revenue record and pedigree table and the same had not been denied by defendants and their witnesses---Findings recorded by courts below against documentary evidence as well as ignoring law on the subject was nullity in the eye of law---High Court in exercise of revisional jurisdiction set aside concurrent findings of fact by two courts below and decreed the suit in favour of plaintiffs---Revision was allowed in circumstances.

Mst. Sawaran and 4 others v. Mst. Ghulam Fatima and 2 others 2002 MLD 1106; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326 rel.

Syed Mumtaz Ahmad Gillani for Petitioners.

Qari Abdul Karim Shahab for Respondents.

Date of hearing: 18th October, 2012.

2013 Y L R 1340

[Lahore]

Before Rauf Ahmad Sheikh and Abdul Sami Khan, JJ

KHALID SALEEM alias KHALDI---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.11287 of 2012, decided on 20th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss.35 & 397---Constitution of Pakistan, Art. 199--- Constitutional petition---Concurrent or consecutive sentences---Maximum length of sentence---Different criminal cases---Scope---Grievance of accused was that convictions and sentences awarded to him in different criminal cases were being treated as consecutive and not concurrent---Validity---Order regarding running of sentences of accused either consecutive or concurrently should be passed at the time of deciding case or deciding appeal and if for any reason or due to some inadvertent mistake the same was not passed, the matter could be settled by invoking jurisdiction of High Court---Categorical mandatory proviso to S. 35(2), Cr.P.C. provided that in no way sentences should not exceed for a longer period of fourteen years---Sentences of accused running consecutively would not serve interest of justice, rather the same would be contrary to the law---High Court directed that sentences passed against accused in different cases to run concurrently and also to consider period of detention undergone by accused in connection with other criminal case---Petition was allowed accordingly.

Rana Muhammad Asif Saeed and Malik Imtiaz Haider Marth for Petitioner.

Muhammad Saeed Ahmad Mumtaz, Additional Prosecutor-General for the State.

Mirza Muhammad Saleem Baig, Additional Advocate-General with Shaukat, Deputy Superintendent of Police (Jails).

2013 Y L R 1348

[Lahore]

Before Mehmood Maqbool Bajwa, J

DEFENCE HOUSING AUTHORITY through Secretary---Petitioner

Versus

MUHAMMAD SHAFI and 3 others---Respondents

Civil Revision No.2534 of 2012, decided on 12th November, 2012.

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

----S. 5---Application for condonation of delay in filing appeal---Appeal allowed by Appellate Court without deciding said application first---Legality---Appellant filed an appeal against order of Trial Court along with an application under S. 5 of Limitation Act, 1908 contending that due to sufficient cause, the appeal could not be filed within time---Appellate Court, without deciding the said application, allowed the appeal---Validity---Application under S. 5 of Limitation Act, 1908 was made at the instance of appellant, seeking condonation of delay-Appellate Court, without deciding said application, accepted appeal which was barred by time---Question of limitation was not a mere technicality---Appellate Court should have first decided the application under S. 5 of Limitation Act, 1908, therefore, impugned order of Appellate Court suffered from jurisdictional defect---Revision petition was accepted, impugned order of Appellate Court was set aside and matter was remanded to the Appellate Court to decide the appeal afresh after giving its findings on the application under S. 5 of Limitation Act, 1908.

Muhammad Islam v. Inspector General of Police Islamabad and others 2011 SCMR 8 rel.

(b) Limitation---

----Question of limitation was not a mere technicality.

Muhammad Islam v. Inspector General of Police Islamabad and others 2011 SCMR 8 rel.

Tariq Masood for Petitioner.

Abdul Haq Chaudhry for Respondents.

2013 Y L R 1354

[Lahore]

Before Tariq Javaid, J

ARIF ALI and another---Petitioners

Versus

FARZAND BIBI and others---Respondents

Civil Revision No.1514 of 2007, decided on 2nd December, 2010.

Specific Relief Act (I of 1877)---

----S.42---West Pakistan Land Revenue Act (VII of 1967), S.39---Suit for declaration of title of property---Suit of plaintiff was dismissed by Trial Court, but the same was decreed by Appellate Court in favour of the plaintiff---Entry of mutation---Scope---Plaintiff had contended that the defendants fraudulently and illegally had the mutation of the suit land entered in their favour and that the plaintiff had never gifted the suit property to them----Validity---Plaintiff had denied the factum of gift---Suit property was inherited by the plaintiff---Defendants had alleged that the plaintiff thumb-marked mutation of suit land in their favour, however, no expert witness was produced to prove that such thumb marks were affixed by the plaintiff---Defendants were not conferred any right of ownership by mere entry of mutation in their names, which had not been established through reliable evidence---Revenue record would not by its own force, be sufficient to prove the genuineness of the transaction to which it purported, unless the genuineness of the same was otherwise proved---Such documents, being part of the public record, were admissible in evidence, but they by their own force, would not prove the genuineness and execution of that to which they relate, unless the transaction covered by them was substantiated from an independent and reliable source---Plaintiff had her own family, therefore, there was no ostensible reason for her to give her property in favour of her brothers (defendants)---Judgment of the Appellate Court did not suffer from any illegality---Revision was dismissed.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Khair Din v. Mst.Salman and others PLD 2002 SC 677 and Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC Lah. 1023 rel.

Abdul Rahim and another v. Mrs.Jannatay Bibi and 13 others 2000 SCMR 346 and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 ref.

Rana Zubair Afzal for Petitioner.

Sh. Naveed Shahryar for Respondents.

2013 Y L R 1362

[Lahore]

Before Ali Baqar Najafi, J

JAVED AHMAD alias JAVED IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Writ Petition No.24637 of 2012, decided on 24th January, 2013.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower was decreed concurrently---Contention of husband (petitioner) was that quantum of maintenance allowance was unreasonable as it was not according to his social status---Validity---Appellate Court had already reduced the quantum of the maintenance allowance keeping in view the social status of the husband thereby making the same affordable for him---Husband was bound to maintain his wife and children and since the marriage was still intact, payment of maintenance allowance may pave the way for cordial relations between the parties---No illegality existed in the orders of courts below---Constitutional petition was dismissed in circumstances.

Raja Muhammad Munir for Petitioner.

Adeel Mumtaz Mian for Respondents Nos.3 and 4.

2013 Y L R 1375

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

EJAZ SHAFI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.1501 and 1528 of 2010, decided on 3rd May, 2012.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, or by banker, merchant or agent and corruption---Appreciation of evidence---Benefit of doubt---No exact date and time of occurrence was mentioned in the crime report---Prosecution had levelled the allegation that accused in connivance with the other co-accused embezzled the material available in the official stocks, but no evidence was led by the prosecution in that regard---Accused could not be convicted under S.409, P.P.C., when ingredients of said section were not satisfied by the prosecution through leading evidence, with regard to dishonest misappropriation or dishonest disposal of property in question---Co-accused was neither named as accused in the complaint, nor his name was found mentioned in the crime report---Co-accused was not found to be one of the culprits of occurrence in inquiry conducted by Inquiry Officers---Accused was also not found connected with the crime in another inquiry---Investigation had revealed that neither sound reasoning had been advanced by the prosecution witness nor any tangible material/evidence was available on the record to link the accused with the commission of offence---Alleged technical report was not prepared in presence of accused---Copy of Stock Register, was not put to accused at the time of his statement recorded under S.342, Cr.P.C. which could not be used against accused---Prosecution case lacked sufficient incriminating evidence, which could be made basis for conviction of any accused---Conduct of complainant, was not above board as he proceeded against departmentally and was demoted---Both accused, were of advanced age at the time of recording their statement under S.342, Cr.P.C. as their age was mentioned as 64 years and had already faced agony of trial and had not only been dismissed from service, but on their conviction their pensionary benefits/gratuity facilities must have been stopped---Accused persons, at that advance age required to spend their lives peacefully---Prosecution having failed to substantiate its case against both accused beyond reasonable doubt, their conviction and sentence was set aside, extending them benefit of doubt and they were directed to be released, in circumstances.

Abdul Rashid Nasir and others v. The State 2009 SCMR 517 rel.

Shaukat Rafique Bajwa and Muhammad Akhtar for Appellants (in Criminal Appeal No.1501 of 2010).

Mian Tariq Ahmed for Appellant (in Criminal Appeal No.1528 of 2010).

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

Date of hearing: 3rd May, 2012.

2013 Y L R 1385

[Lahore]

Before Amin-ud-Din Khan, J

RAIS BAGGA---Petitioner

Versus

ABDUL MAJEED---Respondent

Civil Revision Nos.243-D and 268-D of 2011/BWP, decided on 26th May, 2011.

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---New scrutiny or other interpretation of evidence was not permissible while exercising juris-diction under S.115, C.P.C.

Khalid Hassan Khan Durrani, Sardar Hussain and Husnain Amin Lodhi for Petitioners.

2013 Y L R 1393

[Lahore]

Before Muhammad Anwaarul Haq, J

GHULAM JILLANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3006-B of 2013, decided on 14th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Scope----Bail granted to accused cancelled due to his absence on one date of hearing---Propriety---Plea that accused was regularly appearing before Trial Court but due to his absence on only one date, his bail was cancelled; that his non-appearance was not intentional as public transport was not available due to a long march in the country---Validity---Accused was on bail earlier and his absence was for one date only---Accused was granted bail in circumstances.

Ali Akhtar Shabbir for Petitioner.

Tahir Zia Mahar, Special Prosecutor for Customs with Muhammad Afzal Awan, I.O. Customs House, Faisalabad for Respondents.

2013 Y L R 1409

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos.2783, 2873, Criminal Revision No.1355 and Murder Reference No.649 of 2010, heard on 7th February, 2013.

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

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---Accused was attributed rifle shot near shoulder of the deceased, who succumbed to the injury at the spot---Prosecution witness in his examination-in-chief had corroborated version of the complainant with regard to the details of the occurrence and attribution to accused---To that extent despite lengthy searching cross-examination upon the said prosecution witnesses, nothing material elicited in favour of the defence---Probable and plausible reason of presence of both said prosecution witnesses at the time and place of occurrence, could not be ruled out---Mere inter se relationship of prosecution witnesses as well as with the deceased, was no ground to discard their testimonies, if the same rang true; and did not admit any material inconsistency---Though no previous animosity was alleged between the deceased and accused, or between prosecution witnesses and accused, but in a case of single injury on the body of the deceased attributed to the single accused, substitution was a rare phenomenon---No reason was obtainable on the record to falsely implicate accused in lieu of real culprit---Prosecution had sufficiently established the charge with regard to complicity of accused for commission of wilful murder of deceased by causing fire-arm injury---Trial Court had rightly convicted accused under S.302(b), P.P.C. as Tazir---In view of mitigating circumstances in the case, death sentence awarded to accused by the Trial Court, was reduced to imprisonment for life.

Haji v. The State 2010 SCMR 650 rel.

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

----S. 156---Investigation into case---Lapse on the part of Investigating Officer---Any lapse on the part of the Investigating Officer, was not fatal to the prosecution case, otherwise established with the help of the reliable ocular account sufficiently corroborated by medical evidence.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Trial Court convicted accused and awarded sentence of death to him---Quantum of sentence i.e. capital punishment awarded to accused, required reconsideration---No direct motive was attributed to accused by the prosecution---Motive alleged by the prosecution in the F.I.R., was also not established through any speck of material---Prosecution case had already been disbelieved qua the six co-accused---No allegation of repetition of fire against accused, and no report of Forensic Science Laboratory regarding the weapon of offence allegedly recovered from accused---Case being of mitigating circumstances, awarding of capital punishment in extenuating circumstances, could not be endorsed---Death sentence awarded to accused was reduced to imprisonment for life.

Hasil Khan v. The State and others 2012 SCMR 1936 and Ahmad Khan alias Malangi and 3 others v. The State 2008 SCMR 1644 rel.

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

----S. 302(b)--- Qatl-e-amd--- Criminal Procedure Code (V of 1898), S.544-A---Compensation to heirs of deceased---Fine worth Rs.2,00,000 imposed upon accused to be paid to the legal heirs of deceased as compensation under S.544-A, Cr.P.C., was maintained---Enhancement of amount of compensation was declined by High Court, in circumstances.

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

----S. 417(2-A)---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Appeal against acquittal---Reappraisal of evidence---No overt act was attributed to acquitted accused persons by the prosecution---No injury to the deceased, or any prosecution witness was attributed to said acquitted accused persons---Only one missed fire-shot was attributed to one accused---Keeping in view the alleged previous animosity between the parties, false implication of acquitted accused persons, could not be ruled out---Grain was to be sifted from the chaff---Trial Court had rightly granted acquittal to said accused persons---Said acquitted accused had double presumption of innocence with the order of acquittal passed by the Trial Court in their favour---Appeal against acquittal, was dismissed, in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

Mansoor-ur-Rehman Khan Afridi for Appellant.

Hamayon Aslam, Deputy Prosecutor General for the State.

Ms. Bushra Qamar for the Complainant.

Date of hearing: 7th February, 2013.

2013 Y L R 1433

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD AHMAD alias SOHNA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13880-B of 2012, decided on 31st October, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34 & 109---Qatl-e-amd, common intention, abetment---Bail, grant of---Further inquiry---Implication of accused on basis of statement of co-accused---Scope---Co-accused had allegedly committed murder of the deceased and allegation against accused was that he facilitated the co-accused in escaping from the scene after the occurrence---Neither accused was named in the F.I.R. nor his name had been introduced by the complainant in his supplementary statement made before the police---Accused was involved in the case on the statement of co-accused, who had already been allowed bail by Trial Court---Another co-accused had been allowed bail by the High Court---Statement of an accused person against his co-accused was a weak type of evidence, which could not be taken into consideration until or unless it found support from any other independent source---Admittedly accused was not attributed any injury to the deceased and merely his presence at the place of occurrence at the relevant time was shown---No weapon was recovered from accused---Vicarious liability of accused with the co-accused would be determined at time of trial after recording of evidence---Investigation in the case was complete, accused was behind bars for the last ten months and no prosecution witness had recorded his statement as yet before the Trial Court---Case against accused called for further inquiry into his guilt---Accused was admitted to bail accordingly.

(b) Criminal trial---

----Implication of accused on basis of statement of co-accused---Scope---Statement of an accused person against his co-accused was a weak type of evidence, which could not be taken into consideration until or unless it found support from any other independent source.

Rana Zia Abdul Rehman for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State and Qadeer, A.S.-I. with record.

Malik Muhammad Faiz Khokhar for the Complainant.

2013 Y L R 1437

[Lahore]

Before Sardar Muhammad Shamim Khan and Shahid Hameed Dar, JJ

FAISAL IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12906/B of 2012, decided on 10th October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-A & 363---Kidnapping or abduction for extorting property, valuable security etc., kidnapping---Bail, grant of---Further inquiry---Accused and co-accused persons were alleged to have kidnapped the abductee for ransom---Test identification parade was staged almost twenty three days after the arrest of the accused---Extra-judicial confession before the complainant was allegedly made by co-accused and not by the accused---Ransom amount, according to the record, was received by co-accused and not by the accused---One of the co-accused, whose name persistently appeared on the record, had been granted bail---Case against accused was one of further inquiry---Accused was admitted to bail in circumstances.

Ch. Muhammad Safdar Bhatti for Petitioner.

Khurram Khan, Deputy Prosecutor General Punjab for the State. With Muhammad Akbar, S.I.

Naveed Ahmed Khawaja, for the Complainant.

2013 Y L R 1446

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shujaat Ali Khan, JJ

ZULFIQAR ALI---Appellant

Versus

ZULFIQAR ALI and another---Respondents

Regular First Appeal No.675 of 2010, heard on 4th February, 2013.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Qanun-e-Shahadat (10 of 1984), Art. 59---Suit for specific performance of agreement to sell---Opinion of expert---After deposition of marginal witnesses defendant could file an application for comparison of his signatures or thumb impressions to handwriting expert but he failed to do so---Execution of agreement to sell land was proved along with receipt of Rs.7,50,000---Defendant was not owner of land measuring 92 kanals 2 marlas---Agreement was only operative against the defendant to the extent of land measuring 58 kanals 6 marlas---Plaintiffs did not claim that in case it was proved that defendant was not the owner of land measuring 92 kanals 2 marlas, he would be liable to reduce the price equal to his share, hence, the plaintiffs were not entitled for any reduction of agreed price---Appeal was party allowed by High Court reducing the land of defendant to extent of 58 kanal 6 marlas while other terms of the impugned decree would remain the same.

Sardar Muhammad Ramzan for Appellant.

Taki Muhammad Khan for Respondents.

Date of hearing: 4th February, 2013.

2013 Y L R 1456

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD SALEEM alias CHHEMU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.875 and Murder Reference No.170 of 2008, heard on 7th March, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Conflict existed in the statement of the complainant and in the statement of other eye-witnesses of prosecution, which they made before the Police qua the injury attributed to accused on the person of deceased---Role attributed to accused and to acquitted co-accused was identical, and case of accused was not distinguishable from the case of said acquitted co-accused---Prosecution case against accused did not get any independent corroboration from the motive part of the prosecution story---Alleged recovery of rifle .222 bore, could not be considered as a corroborative piece of evidence against accused---No independent corroboration qua the role attributed to accused was available---Prosecution evidence, which had been disbelieved qua acquitted co-accused, could not be believed against accused, in circumstances---Prosecution case about the role attributed to accused was highly contradictory and doubtful---Role attributed to accused, was also in conflict with postmortem report of the deceased---Complainant had made dishonest improvements in his statements in order to bring his case in line with medical evidence---Prosecution witnesses appeared to be not present at the spot---Prosecution case was replete with number of circumstances, which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence recorded by the Trial Court against accused, were set aside, he was acquitted of the charge extending him benefit of doubt and was released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

(b) Criminal trial---

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Mian Muzaffar Ahmad for Appellant.

Arshad Mehmood, Deputy Prosecutor-General for the State.

Syed Zahid Hussain Bokhari and Mrs. Khalida Parveen for the Complainant.

Date of hearing: 7th March, 2013.

2013 Y L R 1478

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD HANIF and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18778-B of 2012, decided on 14th January, 2013.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 376-Kidnapping, abducting or inducing woman to compel for marriage etc. rape---Bail, grant of---Further inquiry---Improbable occurrence---Delay in lodging of F.I.R.---Implication based on supplementary statement of complainant---Divergent stances taken by alleged victim---Effect---Accused and his two (co-accused) sons were alleged to have committed zina-bil-jabr with the alleged victim---F.I.R. was registered with a delay of five days without any explanation---Names of accused and co-accused did not appear in the F.I.R. and they were introduced for the first time through a supplementary statement of the complainant, which was recorded without disclosing any source of information---Alleged victim recorded her statement under S. 161, Cr.P.C. before the investigation officer, wherein she did not level any allegation of committing zina-bil-jabr against the accused and co-accused---Alleged victim had also moved a petition before the Justice of Peace for registration of F.I.R. wherein she mentioned that she had contracted marriage with one of the co-accused of her own free will and she was being harassed by police at the behest of her father and brothers---Alleged abductee kept on changing her stance at different stages before different forums---Such divergent stands taken by the alleged victim cast serious doubt on the prosecution story---Fact that a father would commit zina-bil-jabr with a girl along with his own sons, especially when she was the wife of one of his sons, did not appeal to a prudent mind---One of the co-accused was a school going student and was twelve and a half years old---School attendance sheet of said co-accused was also produced to establish his plea of alibi---Case was one of further inquiry into guilt of accused and co-accused, and they were admitted to bail accordingly.

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

----Ss. 497 & 161---Bail---Scope-Implication of accused based on supplementary statement of complainant recorded without disclosing any source of information---- Effect--- Such a supplementary statement had no value in the eyes of law.

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

----Ss. 497 & 173---Bail---Opinion of police---Scope---Opinion of police was not binding upon the court and was not to be acted upon stricto sensu---Court had to see every case with the touchstone of law and the facts and circumstances of the case.

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

----Ss. 497 & 173---Bail---Submission of challan---Effect---Submission of challan was no ground to refuse (post-arrest) bail when otherwise accused had made out a good case for grant of bail.

Zaheer-ul-Hassan Zahoor for Petitioners.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Qasim Ali, SI with record.

Syed Shahbaz Bokhari for the Complainant.

2013 Y L R 1487

[Lahore]

Before Abdus Sattar Asghar, J

AKHTAR ABBAS---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Writ Petition No.6805 of 2011, heard on 29th January, 2013.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.32(5) & 35(2)---Decree for specific performance---Execution of---Decree pertained to undivided share of the joint khata and no direction was given in the decree for partition of the land---Provisions of O.XXI, R.35(2), C.P.C. relating to delivery of symbolic possession was attracted to the case.

Manzoor Ahmed and another v. Sain Ahmed and others 2010 CLC 789 ref.

Syed Faiz ul Hassan for Petitioner.

Shahid Ali Shakir for Respondent.

Date of hearing: 29th January, 2013.

2013 Y L R 1496

[Lahore]

Before Abdus Sattar Asghar and Amin-ud-Din Khan, JJ

ABDUR RAZZAQ---Appellant

Versus

MUHAMMAD AJMAL and others---Respondents

Criminal Appeal No.25 of 2012/BWP, decided on 8th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd and rioting armed with deadly weapons---Appeal against acquittal---Principles---Appreciation of evidence---Complainant was aggrieved of the acquittal of accused by Trial Court---Validity---Deceased was habitual offender having criminal antecedents as revealed through copies of F.I.Rs. registered at different Police Stations, produced by accused---Prosecution version lacked intrinsic value and inherent worth being neither confidence-inspiring nor safely reliable if put in juxtaposition, defence version was more plausible---Prosecution remained under heavy burden to bring guilt home to accused beyond any shadow of doubt---Prosecution failed to prove charge against accused beyond any reasonable doubt---Trial Court rightly granted acquittal in favour of accused giving benefit of doubt---Double presumption of innocence was attached to order of acquittal of accused passed by court of competent jurisdiction---High Court declined to interfere in order of acquittal unless it was proved arbitrary, capricious, fanciful and against record---No factual or legal infirmity was found in order of acquittal passed by Trial Court---Such order also did not suffer from misreading of evidence produced by complainant on record and the same was neither arbitrary nor perverse and did not call for any interference by High Court---Appeal was dismissed in circumstances.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 rel.

Mehr Ahmed Sher Kathia for Appellant.

2013 Y L R 1503

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Abdul Sami Khan, JJ

NOSHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.112-J of 2008 and Murder Reference No.402 of 2007, heard on 31st October, 2012.

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

----S.302(b)(c)---Qatl-e-amd---Appreciation of evidence---Grave and sudden provocation--Incident in the case was admitted, participation of accused in the occurrence was not denied, but mode and manner of the incident was disputed---Prosecution case was that accused whipped out a pistol from the fold of his Shalwar and challenged the deceased that he would avenge his insult, and fired five pistol shots hitting the deceased on his chest, flank and both arms, who succumbed to the injuries at the spot---Version of accused was quite contrary to that advanced by the prosecution---Accused in his statement under S.342, Cr.P.C. took the stance that accused stopped his sister in the way, caught hold from her arm and asked her to elope with him, but she refused---According to accused he was watching the whole episode, so due to grave and sudden provocation he murdered the accused by firing with his pistol---By putting both the stances, one taken by the prosecution and the other by accused, in his statement under S.342, Cr.P.C., in juxtaposition, both the eye-witnesses of the prosecution were consistent to their statements---No contradiction existed in the statements of both the eye-witnesses on material points; their statements were fully supported by the medical evidence---F.I.R. in the case was recorded with promptitude---Prosecution, in circum-stances, had been able to prove the case against accused beyond any shadow of doubt---Evidence of related witnesses could not be discarded on the ground of relationship, if the evidence of such witnesses rang true---Accused had not produced any witness in proof of his defence plea; and did not opt to make such statement on oath while appearing in his defence under S.340(2), Cr.P.C.---Accused had inflicted five firearm injuries on the vital parts of the body of the deceased; it was by all means, qatl-e-amd, which aspect of the matter had rightly been dilated upon and decided by the Trial Court---Accused, in circumstances, did not deserve any leniency in the quantum of sentence, and the Trial Court was quite justified in awarding death penalty to accused, which was maintained.

(b) Criminal trial---

----Witness---Related witness---Evidence of eye-witness who was related to the deceased could not be discarded merely on the ground of relationship---If the evidence of a such witness rang true, he could not be disbelieved simply because he was related to the concerned party.

Muhammad Waris v. The State 2008 SCMR 784 rel.

Ch. Muhammad Inayat Ullah Cheema for Appellant.

Muhammad Awais, Deputy Prosecutor General for the State.

Date of hearing: 31st October, 2012.

2013 Y L R 1516

[Lahore]

Before Amin-ud-Din Khan, J

RASHID AHMAD through L.Rs. and others---Appellants

Versus

NAZAR HUSSAIN MALIK and others---Respondents

F.A.O. No.87-I of 2012, decided on 30th January, 2013.

Civil Procedure Code (V of 1908)---

----S.47---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Maintainability---Execution of decree, objection of---Appellants were required to raise the objections before the Executing Court at the first instance and then to challenge the same before the Appellate Court---Constitutional petition was not maintainable, which was dismissed.

Ch. Aamir Rehman for Appellants.

Muhammad Akram Khan Awan for Respondent No.1.

2013 Y L R 1525

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SAJAWAL BHATTI---Appellant

Versus

HABIB ULLAH---Respondent

Regular Second Appeal No.292 of 2010, heard on 31st January, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.113---Suit for specific performance of agreement---Facts admitted need not be proved---Party having admitted that the stamp paper was purchased by him and an agreement was to be written on the said stamp paper was a fact which had been admitted and needed not to be proved through evidence.

Rana Muhammad Shahid Mehmood for Appellant.

Shahzad Ahmad Durrani for Respondent.

Date of hearing: 31st January, 2013.

2013 Y L R 1530

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD FEROZE and 3 others---Petitioners

Versus

SESSIONS JUDGE, BHAKKAR and 3 others---Respondents

Criminal Miscellaneous No.2049-M of 2011, decided on 13th February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202, 249-A & 561-A---Penal Code (XLV of 1860), Ss.440, 506, 354, 337-F(ii) & 337-L(2)---Mischief, criminal intimidation, assault or criminal force to woman, causing Badi'ah and hurt---Petition for acquittal and quashing of proceedings---Complainant filed private complaint against the petitioners and the petitioners were summoned under S.202, Cr.P.C. to face trial---Petitioners filed application under S.249-A, Cr.P.C. for their acquittal, but said application having concurrently been dismissed, petitioners, had filed petition under S.561-A, Cr.P.C.---Private complaint was filed by the complainant with delay of five years and no explanation of said inordinate delay was given by the complainant---None of the injuries on the person of the complainant was found serious or grievous---None of the ladies allegedly slashed at the time of occurrence, had been produced by the complainant before the court---Injuries on the person of the complainant were of manual nature---Law of limitation, though did not apply to the initiation of criminal prosecution, but rule of laches, could not be ignored---Impugned order passed by the Trial Court on application filed under S.249-A, Cr.P.C. had shown that the fact, circumstances, material and the law applicable thereto, had not been appreciated and revisional court was not justified in law in dismissing the revision petition by the petitioners---Law had prevented unnecessary dragging of the innocent people to the criminal prosecution, and the courts would remain wide-awake for the enforcement of rights of the people---Summoning the accused under S.204, Cr.P.C., to acquit them under S.249-A, Cr.P.C. or under S.265-K, Cr.P.C. was not barred; it should remain in the judicious mind of Arbiter to visualize, whether intended prosecution was based upon bona fide or mala fide---False, frivolous or vexatious accusations should be made to bury at initial stage---Allowing incessant proceedings in the case would necessarily be a travesty of justice, abuse of process of law and wastage of precious time of court---Probability of being convicted of the petitioners not existing in the case, petition for quashment was accepted, impugned orders of the courts below, were set aside and proceedings were quashed.

Muhammad Fiaz Khan v. Ajmeer Khan and another 2010 SCMR 105; Mst. Sharnim and 2 others v. The State and another 2003 SCMR 1466; Maqbool Rehman v. The State and others 2002 SCMR 1076 and Abdul Rashid and 2 others v. The State and another 1987 PCr.LJ 1380 rel.

Muhammad Faiz Khan v. Ajmeer Khan and another 2010 SCMR 105; Maqbool v. The State and others 2002 SCMR 1076 and Abdul Rashid and 2 others v. The State and another 1987 PCr.LJ 1380 ref.

Malik Atta Rasool Joya for Petitioners.

Jawwad Mazhar Dhoon for Respondent No.4.

Muhammad Jahangir, D.P.G. for the State.

2013 Y L R 1543

[Lahore]

Before Amin-ud-Din Khan, J

WAPDA/LESCO through Chairman and 5 others---Petitioners

Versus

Mian HAQ NAWAZ---Respondent

Civil Revision No.3413 of 2012, decided on 31st January, 2013.

(a) Electricity Act (IX of 1910)---

----Sched. X---Petitioner applied for electricity connection and amount was demanded to meet with the expenses of installation and demand notice was issued having evaluated cost of material to be supplied to the petitioner---Enhancement of dues on the basis of internal audit report, which was a matter between Authority and audit department, was not permissible under the rules---Authority reserved no right that amount demanded through notice could be enhanced by unilaterally or on account of enhancement in price of material---Authority would not be entitled to recover amount subsequently enhanced unilaterally by it on the pretext that price of material supplied to consumer had gone up---Audit report could not make consumer liable for any amount and could not bring about any agreement between authority and consumer.

Water and Power Development Authority and others v. Umaid Khan 1988 CLC 501 ref.

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

----S. 115--- Revisional jurisdiction---Scope---Concurrent judgments and decrees of courts below based on law and evidence on record could not be interfered with in revisional jurisdiction when courts while passing such judgments and decrees had neither misread nor misconstrued evidence on record nor had acted with material irregularity and illegality.

Mian Hameed Sarwar for Petitioners.

Azmir Javed and Arshad Iqbal for Respondent.

2013 Y L R 1553

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUSHTAQ AHMAD KHAN---Petitioner

Versus

MUMTAZ AHMAD KHAN and 6 others---Respondents

Civil Revision No.3096 of 2010, decided on 20th February, 2012.

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

----O.XVI, R.1---List of witness---Plaintiff was obliged to submit list of witnesses not later than seven days after settlement of issues---Party could be permitted to call any witness whose name did not find mention in the list after showing good cause.

(b) Administration of justice---

----Law favoured adjudication on merit---Purpose and object of legal formalities and procedural provisions was to safeguard the interest of justice and procedural provision normally should not be allowed to defeat the ends of justice.

Anwar Khan v. Fazal Khan 2010 SMCR 973 ref.

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

----S. 115--- Revisional jurisdiction---Scope---Revisional court normally would not interfere with decision of subordinate courts regarding the matter, which were within discretion of the court, but nevertheless an improper and wrong exercise of discretion was open to revision---Civil court was not only the court of law but also the court of equity required to dispose of the cases on merits and not on technicalities, therefore, trial Court should have shown indulgence but failed to exercise of discretion properly and as such the dismissal of the application was result of improper exercise of discretion, subject to revisional jurisdiction of High Court.

M. Akbar Muggo v. Chief Corporation 1995 CLC 1939 and Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105 rel.

Muhammad Akbar Awan for Petitioner.

Rana Ehtisham Naseer for Respondents.

2013 Y L R 1562

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD MANSHA and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos. 740, 187-J and Murder Reference No.150 of 2008, heard on 19th February, 2013.

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

----Ss. 302(b), 324, 353, 392, 440 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, mischief, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---No delay in reporting the matter to the police---Examination-in-chief of complainant was recorded by the Trial Court, and his cross-examination was reserved on the request of defence counsel---Cross-examination on the complainant having not been recorded due to his death---Complainant having not been subjected to cross-examination, his statement could not be relied upon---Star eye-witness of the prosecution had fur-nished ocular account in which he had fully implicated accused---Evidence of other eye-witnesses, was also on the same lines---Said eye-witnesses had no enmity to falsely implicate accused persons---Witnesses were cross-examined at length, but their evidence could not be shaken during the process of cross-examination; they corroborated each other on all material aspects of the case---Evidence of said witnesses was confidence- inspiring---Accused having duly been nominated in the F.I.R., there was no need of holding identification parade---Ocular account of the prosecution about infliction of firearm injury on deceased had fully been supported by medical evidence---Kind of weapon used by accused, nature and seat of injury and the time of occurrence, had fully tallied with the medical evidence---Prosecution having fully proved its case against accused beyond shadow of any doubt, conviction of accused under S.302(b), P.P.C. awarded to him by the Trial Court was maintained, but in view of certain mitigating circumstances, his sentence was altered from death to imprisonment for life, in circumstances.

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

----S. 392---Criminal Procedure Code (V of 1898), S.342---Robbery---Appreciation of evidence---Alleged recovery of motorcycle, mobile phone and currency notes on the pointation of accused persons, were not put to them in their statement recorded under S.342, Cr.P.C.---Said recoveries, could not be used against them---No report of Forensic Science Laboratory was available on record in respect of .30 bore pistol allegedly recovered from accused---Said recovery was of no help to the case of prosecution---Appeal to the extent of the conviction of accused persons under S.392, P.P.C. was accepted; their conviction and sentence to that extent were set aside and they were acquitted from the said charge.

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

----Ss. 302(b), 324, 353, 392, 440 & 34---Criminal Procedure Code (V of 1898), S.410---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, mischief, common intention---Failure of convict to file appeal against his conviction and sentence---Effect---One of co-convict, though had not filed any appeal against his conviction and sentence, but statutory right of filing appeal to any convict on a trial by the Sessions Court had been provided under S.410, Cr.P.C. whereby, convict as a right, could demand an adjudication from High Court, either on question of fact or on question of law, or on both, which was a procedural issue.

(d) Constitution of Pakistan---

----Art. 203---Supervisory power of High Court---Scope---Whenever it would come into the notice of the High Court that any procedure or technicality would cause serious injustice and if any illegality was found on the record during the hearing of any connected matter, High Court could reappraise the case of convict on merits, who was being deprived from the relief to which he was entitled to, because High Court could exercise its supervisory power in respect of courts below, where appeal or leave to appeal was not filed.

Amin Ali and another v. The State 2011 SCMR 323 and Shabbir Ahmed v. The State 2011 SCMR 1142 rel.

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

----Ss. 302(b), 324, 353, 392, 440 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharging his duty, robbery, mischief, common intention---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Mitigating circumstances--- Certain mitigating circumstances in the case were noticed firstly, that evidence of alleged recoveries of pistol, motorcycle, mobile phone and currency notes had been disbelieved because same was not put to accused persons in their statements recorded under S.342, Cr.P.C. and secondly that accused had been attributed single fire shot on the person of the deceased, and he did not repeat any injury on the person of the deceased or to any member of the complainant party---Case against accused being not of capital punishment, he was entitled for benefit of doubt as an extenuating circumstance while deciding question of his sentence---His death sentence was altered to imprisonment for life, in circumstances.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Ch. Muhammad Inayat Ullah Cheema for Appellant (in Criminal Appeal No.740 of 2008).

Ms. Najma Rashif for Appellant (in Criminal Appeal No.187-J of 2008).

Arshad Mehmood, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 19th February, 2013.

2013 Y L R 1587

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

YASER NAVEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.13981-B, 14662-B and 15028-B of 2012, decided on 24th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 161, 497(2) & 498---Penal Code (XLV of 1860), Ss. 302/148/149/364---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, kidnapping or abducting in order to murder---Bail, grant of---Implication of accused on basis of supplementary statement---Scope---Accused and co-accused persons allegedly kidnapped the deceased and killed him---F.I.R. attributed role of lalkara upon accused and co-accused persons whereas in the supplementary statement of complainant, they were assigned a specific role of causing fatal injuries to the deceased---Accused and co-accused persons were mentioned in the F.I.R. as unknown persons with no description provided therein--- Complainant subsequently implicated accused and co-accused persons through his statement before the police by stating that he and prosecution witnesses had verified that it was the accused and co-accused persons, who had murdered the deceased---Statement introduced subsequently by the complainant did not disclose the place where the complainant and prosecution witnesses confronted the accused and co-accused persons and as to how they were able to identify them---Subsequent statement of complainant was merely a statement made under S. 161, Cr.P.C., which had no value in eyes of law and could not be equated with the first version made in the crime report---Supplementary statement was made by complainant after six days of the occurrence, therefore, there was every likelihood that nomination of accused and co-accused persons could have been a result of due deliberation and consultation---Case was of two versions, one given in the F.I.R. and the other made in the supplementary statement, therefore implication of accused and co-accused persons required further inquiry---Interim pre-arrest bail granted to accused was confirmed in circumstances, while co-accused persons were ordered to be released on bail.

2003 SCMR 1419 and 2008 SCMR 1556 rel.

Azam Nazeer Tarar and Mian Jameel Akhtar for Petitioner.

Sikandar Javed for the Complainant.

Nisar Ahmad Gondal, Addl. P.G. with Ahmad Munir, S.I.

2013 Y L R 1600

[Lahore]

Before Shahid Hameed Dar, J

ABDUL HAMEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14081-BC of 2011, decided on 26th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5), 498 & 345---Pre-arrest bail, recalling of---Pre-arrest bail granted on basis of compromise---Terms of compromise not complied with---Effect---According to terms of the compromise between the parties, accused was required to pay the agreed amount to the complainant within five months of the bail granting order---Accused did not pay the agreed amount despite repeated promises and appeared to be interested in per-petuating the agony of the complainant---No one could be allowed to make a mockery of the process of law and that of the courts---Order made by court of law had to be complied with in letter and spirit and no excuse could be allowed to eclipse or overawe the efficaciousness of the order---Accused had also moved an application before Justice of Peace for registration of case against complainant, which reflected on his unpreparedness to comply with the requirements of the compromise---Pre-arrest bail granted to accused was recalled in circumstances and directions were given to take him into custody and send him to judicial lockup to face trial.

Syed Farhan Ali Shah for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor General Punjab for the State with Muhammad Javed A.S.-I.

Mian Muhammad Saeed for Respondent No.2 with Respondent No.2 in person.

2013 Y L R 1603

[Lahore]

Before Sagheer Ahmad Qadri, J

SARDAR BAHADAR MUGHAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16991-B of 2012, decided on 7th December, 2012.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Non-bailable offence---Habitual offender---Accused causing delay in conclusion of trial---Effect---Accused allegedly issued three cheques to the complainant, which were dishonoured on presentation---Section 489-F, P.P.C. was a non-bailable offence and grant of bail in such like offences was not right of an accused but a concession---Accused was already involved in three different cases similar to the present one---Counsel for accused was also delaying conclusion of trial by not appearing to cross-examine prosecution witnesses---Accused was not entitled to concession of bail in such circumstances---Bail petition was accused was dismissed accordingly.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 ref.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

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

----S. 497---Non-bailable offence---Bail---Scope---For non-bailable offences grant of bail was not right of an accused but a concession.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

Mian Imam Bakhsh for Petitioner.

Muhammad Naeem Sheikh, Deputy Prosecutor-General.

Pir Syed Anwer-ul-Hassan Gallani for the Complainant.

Muhammad Ilyas, A.S.-I. with record.

2013 Y L R 1612

[Lahore]

Before Altaf Ibrhaim Qureshi, J

TALUKA RAAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.2001-B of 2011-BWP, decided on 20th September, 2011.

Criminal Procedure Code (V of 1898)---

---S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 5, 3 & 4---Possessing intoxicant---Ad interim pre-arrest bail, confirmation of---Legal possession of liquor---Probability of false implication---Delay in lodging of F.I.R.---Mala fide of police---Effect---Police on basis of prior information laid a check point to arrest the accused, however on seeing the police accused allegedly managed to escape, leaving behind his motorcycle, which contained 80 bottles of liquor---Accused, who was a non-Muslim, had a valid permit and authorization to keep 54 units of liquor in his possession---Articles 3 and 4 of Prohibition (Enforcement Of Hadd) Order, 1979, were not attracted to the present case in such circumstances---F.I.R. did not mention as to how much liquor was present in the 80 bottles, which were allegedly left behind by the accused---Given the fact that police party had prior information and had laid a check point to arrest the accused, question was as to how accused managed to escape in the presence of police-officials, who were armed with weapons---Record did not show that motorcycle allegedly left behind by accused belonged to him, meaning that accused was not known to the police, therefore, question was as to how police came to know that the person who managed to escape was the accused---False implication of accused could not be ruled out in such circumstances---Complainant was a police official but despite such fact F.I.R. was lodged after an inordinate delay of about 24 hours, which itself created doubt---Involvement of accused in the case was doubtful and facts available on record spoke of the mala fide on part of the police---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

S.M. Asif Bukhari for Petitioner.

Khalid Pervez Opal, Deputy Prosecutor General and Muhammad Iqbal A.S.-I. for Respondents.

2013 Y L R 1624

[Lahore]

Before Shahid Hameed Dar, J

AMEER KHAN and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14530/B of 2012, decided on 6th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 195(c)---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Ad interim pre-arrest bail, confirmation of---Surety bonds filed for bail on basis of bogus documents---Accused persons were granted ad interim pre-arrest bail in connection with an F.I.R. and filed surety bonds on basis of sale-deeds, which were subsequently declared as bogus---Accused persons appeared to have fallen prey to the crookedness and unscrupulousness of the surety, who single-handedly, managed the whole affair, on the strength of two bogus sale-deeds---Offence had been committed during course of judicial proceedings, which rendered it essential that procedure under S. 195(c), Cr.P.C should have been followed before the matter was reported to police for registration of a case against the accused persons---Whether or not complainant was an aggrieved person who had the legal authority to lodge the F.I.R. in question could only be determined by the Trial Court---Even otherwise accused persons had moved an application before the Magistrate for filing fresh bail bonds by contending that they had been deceived by the surety---F.I.R. for which accused persons were granted bail was also found as false---Ad-interim pre-arrest granted to accused persons was confirmed in circumstances.

Mian Faiz Ali for Petitioners Nos.1 to 3.

Ch. Muhammad Akram Tahir, DDPP for the State.

Adeel Hashmi for the Complainant.

Nawaz S.I. with record.

2013 Y L R 1631

[Lahore]

Before Shahid Hameed Dar, J

FAISAL RASOOL and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 18365-B, 18016-B, 17396-B and 17913-B of 2012, decided on 24th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.462-B---Theft of oil from a petroleum pipeline---Bail, grant of---Rule of consistency---Incompetent investigation of case---Effect---Accused persons had allegedly dug up a tunnel under a rented premises to steal oil from a main pipe line---Contention on behalf of accused persons was that one of the co-accused had already been granted bail in similar circumstances, therefore, they were also entitled to bail under the rule of con-sistency---Validity---Although allegation against accused persons, per se looked heinous and not less than an act of terrorism, but it was a badly investigated case, which had been spoiled by the investigating officer in more than one way---No evidence was collected to find out as to when rented premises was let out to the accused-tenants; as to when, where and in what manner one of the accused stood guarantee on behalf of the accused-tenants; as to why supplementary statement of complainant was delayed and why it did not contain any element of reasonableness or persuasiveness; and as to why evidence of recovery of certain articles, as shown against the accused looked queer and unconvincing---Two of the accused were nominated through supplementary statement of complainant, who did not disclose source of his knowledge---Cash allegedly recovered from one of the accused was shown in the recovery memo to be an indirect recovery, managed by some relatives of the said accused---Recovery of a van from one of the accused was also a haphazard circumstance, which lent very little corroboration to the case in the F.I.R.---Incompetence, unscrupulousness and witlessness of the investigating officer had badly marred the veracity of accusations against the accused persons---Case of accused persons plainly assimilated the case of the co-accused, who had already been granted bail---Following dictum of consistency accused persons were also admitted to bail.

Asghar Ali Gill for accused Faisal Rasool.

Zafar Iqbal Chohan for Accused Abdul Waheed.

Zahid Aslam Malik for accused Mehboob Ellahi.

Javed Imran Ranjha for accused Asghar Ali.

Ms. Muqaddas Tahira, Addl: Prosecutor General Punjab Aslam S.I. with record.

2013 Y L R 1644

[Lahore]

Before Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ

IKRAM MASIH---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.88 and Murder Reference No.18 of 2008, heard on 9th January, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution mainly depended on the statement of the complainant and other prosecution witness---Both had made dishonest improvements in the case as was set up originally at the time of registration of F.I.R.---Manner in which the prosecution witnesses had shown as to how they identified accused during all his activities on the roof top of the room, was also not believable---Complainant and prosecution witness in their statements made on oath, had not pointed out with any exactitude the location of electric light with the help of which they allegedly identified the assailants---Prosecution witness, being Lambardar, was a political figure in the vicinity, and there was admittedly a political rivalry in the village; and said witness as well as accused, according to the prosecution's own evidence were of different political groups---Prosecution witness, in circumstances, could not be termed as an independent witness---Prosecution case against accused was replete with material improvements; and the story of the prosecution qua involvement of accused in the case was highly doubtful---Prosecution had failed to prove its case against accused beyond the shadow of doubt---Conviction and sentence of accused could not be sustained merely on the basis of recovery of pistol from him---Conviction and sentence recorded against accused by the Trial Court, were set aside by extending benefit of doubt and he was released, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Saifullah v. The State 1985 SCMR 410 and Abdul Mateen v. The State and others PLD 2006 SC 538 rel.

(b) Criminal trial---

----Recovery of weapon of offence---Evidentiary value---Such recovery was purely corroboratory in nature; and alone was not capable to bring home the charge against accused in absence of direct substantive evidence---Conviction could not be recorded merely on the basis of the evidence of recovery, howsoever convincing same could be.

Prince Rehan Iftikhar Sheikh and Moeen-ud-Din for Appellants.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Date of hearing: 9th January, 2013.

2013 Y L R 1662

[Lahore]

Before Amin-ud-Din Khan, J

GHULAM HUSSAIN---Petitioner

Versus

Mst. NOOR NISHAN and others---Respondents

Writ Petition No.3406 of 2004/BWP, decided on 30th June, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be exercised to check glaring illegality and jurisdictional defect visible on face of record of subordinate tribunals, but not to decide factual controversy.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S.13---West Pakistan Land Revenue Act (XVII of 1967), S.164---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Appeal against order of confirmation of consolidation scheme---Condonation of delay---Scope---Provisions of Limitation Act, 1908, unless specifically made applicable by West Pakistan Consolidation of Holdings Ordinance, 1960, would not apply thereto, for being a special law having provided limitation thereunder.

Aziz-ur-Rehman and Rana Muhammad Suhail Iftikhar for Petitioners.

Ch. Naseer Ahmad for Respondent.

Date of hearing: 30th June, 2011.

2013 Y L R 1670

[Lahore]

Before Abdul Sami Khan, J

Hafiz FAQEER HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16692-B of 2012, decided on 12th December, 2012.

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

----Ss. 497(2) & 161---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Fur-ther inquiry---Delay in conclusion of trial---Implication on basis of supplementary statement of complainant---Non-con-ducting of test identification parade---Rule of consistency---Delay in lodging F.I.R.---Effect---Accused was not nominated in the F.I.R., which was registered with a delay of one day without any explanation---Name of accused was introduced through supplementary statement of complainant, without disclosure of any source of information---Co-accused persons had already been granted bail---Nobody had seen accused committing murder of deceased---No test identification parade was conducted to positively connect accused with the commission of the alleged offence, which was mandatory in cases similar to the present one---Delay in conclusion of trial could not be attributed to accused---Bail application was allowed and accused was granted bail on merits as well as on the ground of delay in conclusion of trial.

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

----Ss. 161 & 497---Bail---Implication of accused on basis of supplementary statement of complainant---Effect---Supplementary statement had no value in the eyes of law.

Abdul Wahid Ayyoob for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Muhammad Qayyum A.S.-I., with record.

Nemo for the Complainant.

2013 Y L R 1678

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SAMINA ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3522-B of 2013, decided on 1st April, 2013.

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

----S. 498---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Ad interim pre-arrest bail, confirmation of---Female accused---Investigation based on special oath (Nian)---Pending civil litigation between parties---Mala fide of complainant---Effect---Allegation against accused was that she took an amount from the complainant and committed criminal breach of trust---No specific date and time of alleged occurrence had been mentioned in the F.I.R.---Offence alleged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was found innocent in two successive investigations, but subsequently she was found guilty during third investigation, which was carried out on basis of special oath (Nian), which was not permissible under law---Civil litigation was also pending between the parties---Accused was teaching in a college as a lecturer, and as such was a law-abiding citizen, thus disallowing pre-arrest bail to her would certainly cause damage to her repute---Mala fide of accused was oozing from the facts of the case---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----Ss. 497 & 498---Bail---Evaluation of evidence---Mala fides---Court could look into and evaluate mala fides from facts and circumstances of the case.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 rel.

Waqar Hussain Butt for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General.

Rana Muhammad Aslam Nadeem for the Complainant.

Rafaqat, A.S.-I., with record.

2013 YLR 1690

[Lahore]

Before Abdus Sattar Asghar, J

KAMEER and another---Appellants

Versus

ABDUL MAJEED---Respondent

R.S.A. No. 145 of 2004, heard on 25th February, 2013.

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

----Arts. 70 & 71---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Oral agreement to sell, proof of-Plaintiff-respondent had not stated that the defendants-appellants had entered into an agreement to sell or he had paid any earnest money to them---Witnesses of plaintiff-respondent had failed to state that on what date or in which year parties had entered into agreement to sell and even the plaintiff-respondent in his plaint had not named then as witnesses to the agreement to sell---Plaintiff-respondent was under heavy burden to prove the factum of oral agreement to sell between the parties which he could not establish through reliable ocular or documentary account---Concurrent findings of the courts below were based on erroneous reasoning, and misreading and non-reading of evidence---Appeal was accepted and judgments and decrees of both the courts below were set aside and suit was dismissed with cost.

Shahid Qayyum Chaudhry for Appellants.

Inayatullah Chaudhry for Respondent.

Date of hearing: 25th February, 2013.

2013 Y L R 1698

[Lahore]

Before Sayyed Mazahar All Akbar Naqvi, J

GHULAM GHOUS---Petitioner

Versus

The STATE and another-Respondent

Criminal Miscellaneous No.14217-B of 2012, decided on 22nd November, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/ 148/ 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Ad-interim pre-arrest bail, confirmation of----Police investigations finding accused as innocent---Previous enmity between the parties---Effect---Allegation against accused was that he along with the co-accused made fire shots at the deceased---Apart from the F.I.R. complainant also filed a private complaint---Accused was granted pre-arrest bail by the Trial Court in the complaint case---Although accused was named in the F.I.R. with specific allegations but during two successive investigations he was found innocent and was let off by the police and his name was placed in column No.2 of the report under S. 173, Cr. P. C. ---During both investigations co-accused was found to be the sole perpetrator of the occurrence and weapon of offence was also recovered front his possession---Forensic Science Laboratory report was positive qua matching of crime empty with the weapon of offence recovered from the co­accused---Previous animosity existed between the parties---No incriminating material was available on record to connect the accused with the commission of the offence---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----Ss. 497, 498 & 173---Bail---Opinion of police---Scope---Although opinion of police was not binding upon the courts but the same had persuasive value for the purpose of deciding a bail petition.

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

----S. 498---Pre-arrest bail---Merits of the case---Scope---Court while deciding pre-arrest bail could touch upon the merits of the case.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

Rana Ghulam Dastgir Khan for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General.

Rana Muhammad Arshad for, the Complainant.

Tariq, A.S.-I. with record.

2013 Y L R 1709

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD DIN and others---Petitioners

Versus

MUHAMMAD RAMZAN through L. Rs. and others---Respondents

Civil Revision No.2634 of 2011, heard on 11th December, 2012.

Specific Relief Act (I of 1877)---

----S 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Concurrent findings of fact by two courts below---Misreading and non-reading of evidence---Revisional jurisdiction of High Court---Scope---Plea raised by plaintiff was that concurrent findings of facts recorded by two courts below could not be changed by High Court in exercise of revisional jurisdiction by fresh interpretation of evidence---Validity---when agreement to sell was found by Trial Court to helve been validly executed and proved and also the receipt, through which a sum of Rs.60000 were paid, therefore, other findings reverting defendants by both the courts below were result of misreading of valuable documentary as well as oral evidence produced by defendants---Both the corms below committed illegality and material irregularity while recording findings against defendants---Such findings were not sustainable the same had been recorded while ignoring settled principles of law-Courts below committed illegality and material irregularity, therefore, findings recorded by both the Courts below were result of misreading and non-reading of evidence---High Court set aside judgments and decrees passed by two courts below and suit was dismissed---Revision was allowed in circumstances.

Danish Ahmad Mukarram for Petitioners.

Ch. Javed Rasool for Respondents.

Date of hearing: 11th December, 2012.

2013 Y L R 1743

[Lahore]

Before Shahid Hameed Dar, J

MAQSOOD SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.584-B of 2013, decided on 23rd January, 2013.

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

----Ss. 497(2) & 161---Penal Code (XLV of 1860), Ss. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---Implication based on supplementary statement of complainant---Complainant implicating accused on basis of his "firm belief"---Effect---Accused was alleged to have abducted the alleged abductee so as to snatch her gold ornaments and cash---Story mentioned in the F.I.R. appeared a bit vague, as the complainant merely showed his "firm belief" without hinting at any incriminating evidence, even against those accused persons, he had been named in the F.I.R.---Present accused was implicated in the case through a supplementary statement of the complainant, alleging that accused had made a telephone call to his brother and used derogatory language against him---Alleged abductee was still to be recovered and since arrest of accused there had been no progress towards her recovery---Case was one of further inquiry into guilt of accused---Accused was admitted to bail in circumstances.

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

----S. 497---Bail, relief of---Scope---Relief of bail could not be withheld as a matter of punishment nor could one be left to rot in jail only to satisfy a complainant.

Fahad Naveed for Petitioner.

Ms. Muqadass Tahira, Addl: Prosecutor-General Punjab.

Aslam S.-I. with record.

2013 Y L R 1748

[Lahore]

Before Muhammad Anwaar-ul-Haq and Abdus Sattar Asghar, JJ

HAQ NAWAZ alias FAKHAR HAYAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.71-M of 2013 in Criminal Appeal No.1180 of 2004, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

---Ss. 426(2-B) & 561-A---Penal Code (XLV of 1860), S. 302/34---Suspension of sentence---Bail, grant of---Petitioner-accused was awarded death sentence by the Trial Court---Appeal of petitioner-accused was dismissed by the High Court, however the sentence of death was reduced to imprisonment for life---Leave to appeal had been granted by the Supreme Court---Petitioner-accused had served out more than half of his sentence---Petition for suspension of sentence was allowed by the High Court and petitioner-accused was admitted to bail accordingly.

Abdul Khaliq Safrani for Petitioner.

Ch. Muhammad Mustafa Deputy Prosecutor-General for Respondents.

Ch. Muhammad Anwar Bhindar for the Complainant.

Date of hearing: 12th March, 2013.

2013 Y L R 1756

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH DITTA through Legal Heirs---Petitioners

Versus

ALI MUHAMMAD through Legal heirs and 2 others---Respondents

Civil Revision No.561-D of 1992, heard on 30th October, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for declaration to the effect that suit property was fraudulently transferred to the defendant, was decreed---Fraud, plea of---Essential elements---Plaintiff had alleged fraud, and for making such allegation, there were certain principles to plead the same with full detail---As a person praying to the court to declare a document or a transaction as null and void, plaintiff was duty bound to be specific in his stand when he alleged the fraud and to plead the same with full detail, which was not done in the present case---Onus to prove fraud was on the plaintiff and he had not appeared himself before the Trial Court as a witness, and the onus in such like cases only shifts to the other side when the plaintiff appears before the court and makes statement on oath to the effect that he had not got registered the impugned document---Plaintiff, in the present case, opted not to appear in affirmative evidence either in person or through attorney, therefore no question of shifting the onus of proof on the defendants arose---Findings of courts below were against law and available evidence and were set aside---Revision was allowed, in circumstances.

Tahir Mehmood for Petitioner.

Respondents ex parte.

Date of hearing: 30th October, 2012.

2013 Y L R 1763

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ISLAM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1225 and Murder Reference No.264 of 2008, heard on 15th February, 2013.

(a) Criminal trial---

----Proof---Prosecution was required to prove its case against accused persons beyond any shadow of doubt and defence version was to be taken into consideration after evaluating the prosecution evidence to find out whether same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Sentence, reduction in---No delay in reporting the matter to the Police---Complainant and prosecution witness being residents of the same village where occurrence had taken place, their presence along with the deceased, at the spot, at the time of occurrence, was neither unnatural nor improbable---Presence of eye-witnesses at the time of occurrence, had also been admitted by accused, though in a different manner---Eye-witnesses were cross-examined at length, but their evidence could not be shaken---Prosecution witnesses corroborated each other on all material aspects of the case, their testimonies qua the role attributed to accused and injuries inflicted by him on the person of the deceased were confidence-inspiring and trustworthy---Complainant being real paternal uncle of the deceased, it was not probable that he would falsely implicate accused and would let off the real culprit in the murder of his near kith and kin---Substitution in such like cases was a rare phenomenon---Medical evidence, had fully supported the ocular account of prosecution---Motive as alleged by the prosecution, had not been proved---Pistol and empties having been kept in Police Station, possibility could not be ruled out that false empties were prepared from pistol and sent to the office of Forensic Science Laboratory---Story of prosecution regarding recovery of pistol not appealing to common sense, it was not safe to rely upon the alleged recovery on the pointation of accused and positive report of Forensic Science Laboratory---Accused had pleaded that on the day of occurrence, he was called by his in-laws/complainant party, deceitfully under the garb of compromise and when he reached at the spot he was attacked upon by seven persons of the complainant party---Accused had failed to prove said plea in his statement recorded under S.342, Cr.P.C.---Accused had also received 11 injuries at the time of occurrence, but said injuries were suppressed in the F.I.R. as well as in the statements of eye-witnesses recorded by the Trial Court---Both parties had not approached the court with clean hands and had tried to suppress their own role and had made an attempt to highlight the role of the other side---Real cause of occurrence had been suppressed by the parties, and it appeared that something else had happened immediately before the occurrence, which resulted into the incident---Occurrence appeared to be a sudden fight wherein deceased lost his life at the hands of accused---Sufficient incriminating evidence was available on the record against accused---Prosecution, in circumstances, had proved its case against accused, beyond the shadow of any doubt---Conviction of accused was maintained, but in view of certain mitigating circumstances, in favour of accused, it was not a case of capital punishment---Sentence of death awarded to accused by the Trial Court, was altered to imprisonment for life, with benefit of S.382-B, Cr.P.C.

Syed Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502 rel.

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

----S. 302(b)--- Qatl-e-amd--- Sentence, reduction of---Mitigating circumstances---Trial Court convicted accused and sentenced him to death---Case against accused was not of capital punishment because of certain mitigating circumstances in favour of accused, firstly that evidence regarding recovery of pistol from possession of accused, could not be believed as said pistol and empties were kept together at Police Station, possibility could not be ruled out that false empties were prepared from the pistol; secondly that accused was also injured during occurrence and he had received 11 injuries on his body, which injuries had been suppressed by the prosecution, and thirdly, that the prosecution had alleged a specific motive, but it had failed to prove the same---Occurrence, had taken place near the house of the deceased, and it appeared that something else had happened between accused and the deceased immediately before the occurrence, which resulted into the incident and it was not determinable and what was the real cause of occurrence, and what had actually happened immediately before the occurrence---Death sentence awarded to accused, in circumstances was quite harsh---Accused, in the peculiar circumstances of the case deserved benefit of doubt to the extent of his sentence, one out of two provided under S.302(b), P.P.C.---Treating the case of mitigation, sentence of death awarded to accused was altered to imprisonment for life and benefit of S.382-B, Cr.P.C., was also given to accused, in circumstances.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660; Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Accused was entitled for the benefit of doubt as an extenuating circumstance, while deciding question of his sentence, as well.

(e) Criminal trial---

----Motive---Establishment of---Duty of prosecution--- Scope--- Non-proof of motive---Mitigating circumstance---If a specific motive had been alleged by the prosecution, then it was duty of the prosecution to establish said motive through cogent and confidence-inspiring evidence---Non-proof of motive could be considered a mitigating circumstance in favour of accused.

Ch. Anwar-ul-Haq Pannun for Appellants.

Arshad Mehmood, D.P.-G. for the State.

Abdul Rahim for the Complainant.

Date of hearing: 15th February, 2013.

2013 Y L R 1782

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1275-B of 2013, decided on 28th February, 2013.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), S. 10---Police Rules (1934), Rr. 25.1 & 25.2---Qatl-e-amd---Bail, refusal of---Allegation against accused was that he committed murder of daughter of the complainant by cutting her throat who was student of 7th class---Accused had been declared guilty in the case and he, notwithstanding, as being a juvenile could not claim the bail as a matter of right on the ground of delay in final disposal of his case---No after-thought had been brought on record on the part of the complainant for false involvement of the accused---Non-mentioning of the name of any culprit in F.I.R. showed the bona fide of the complainant that he did not want to involve any innocent person---Prosecution witnesses appearing during investigation were related to the deceased as well as complainant but record was silent that ever earlier any enmity or ill-will, grudge or grouse had existed with them against the accused to become false witnesses---Evidence of last seen, extra-judicial confession, recovery of blood-stained Shalwar of the accused and recovery of Churri, the weapon of offence were sufficient pieces to prima facie connect the accused with the commission of crime---Indubitably , more than one year had elapsed after being lodged the accused behind the bars and the case had not yet been finally decided by the Trial Court but in the circumstances of the case, accused could not claim bail as a matter of right---Case of accused squarely and eminently came within the preternatural circumstances mentioned in the last proviso of S. 10 of the Juvenile Justice System Ordinance, 2000---Act of accused appeared to be heinous, gruesome, brutal, sensational in character and shocking to morality---In the absence of any wrath on the part of the complainant, chances of false implication of the accused in the case were ruled out---Bail was refused accord-ingly.

Khalid Ikraam Khatana for Petitioner.

Mehram Ali Bali for the Complainant.

M. Akhlaq, D.P.G. for the State with Muhammad Arif, S.I.

2013 Y L R 1796

[Lahore]

Before Ijaz ul Ahsan and Ayesha A. Malik, JJ

Ms. AYESHA SIDDIQA---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.3094 of 2013, heard on 4th April, 2013.

Prospectus for Admission in Punjab Medical and Dental Colleges, 2012-2013---

----Condition "e" of Eligibility and Rules---Constitution of Pakistan, Art. 199---Constitutional petition---Admission in Medical College---Failure to mention the name of college in the preference form---Effect---Candidate was aware at the time of filling the admission form that she had to mention every college that she wanted to be considered for admission---Prospectus and the admission form were clear at stating and highlighting the importance of the preference form---No basis upon which the High Court could direct the respondents-Authorities to consider the petitioner for admission to a college which was not stated in the list of preference---Petitioner took a conscious decision at the time of filling of the form, hence she was bound by such decision---Constitutional petition was dismissed.

Muhammad Ahsan Bhoon for Petitioner.

Risal Hassan Syed and Imran Muhammad Sarwar for Respondents.

Date of hearing: 4th April, 2013.

2013 Y L R 1805

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

RIAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.1055, Criminal Revision No.747 and Murder Reference No.271 of 2008, heard on 9th April, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Role attributed to accused was similar to that of acquitted co-accused---Evidence which had been disbelieved qua the acquitted co-accused, could not be believed against accused, without independent corroboration on material particulars of the case---Motive as alleged by the prosecution, did not appeal to the common sense and story of motive as alleged by the prosecution was not reliable---Even to the extent of motive, the case of accused, was not distinguishable from the case of acquitted co-accused---Pistol .30 bore, was allegedly recovered on the pointation of accused, 4 days after his arrest, whereas same was deposited in the office of Forensic Science Laboratory 13 days after arrest of accused; it was not safe, in circumstances, to rely upon the alleged recovery of pistol at the instance of accused and positive report of Forensic Science Laboratory---Alleged recovery of pistol, could not be considered as corroborative piece of evidence against accused---Prosecution story narrated in the F.I.R. was in conflict with the medical evidence---Case of accused, in circumstances, was not distinguishable from the case of his acquitted co-accused--Alleged absondence of accused was not a corroboration of the prosecution case---No independent corroboration was on record against accused---Appeal of accused was accepted by extending him benefit of doubt; his conviction and sentence, were set aside and he was acquitted and released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ziaullah v. The State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

Maaz Allah Khan Sherwani for Appellant.

Arshad Mehmood, D.P.G., for the State.

Saif-ul-Malook for the Complainant.

Date of hearing: 9th April, 2013.

2013 Y L R 1825

[Lahore]

Before Abdul Sami Khan, J

ASHFAQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.554-B of 2013, decided on 14th February, 2013.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S. 376---Rape---Bail, grant of---Further inquiry---Allegation against the accused was that he committed rape with the complainant---Delay of one month and twelve days in registration of the F.I.R.---Nikah Nama had been found correct---Abductee/victim was a grown-up lady of 18/19 years of age and her Nikah Nama was on record---Possibility could not be ruled out of consideration that a matrimonial issue had been converted into criminal case due to family honour---Nikahnama had not been challenged by the complainant party before any forum---Common practice in the society was that in such like cases if a girl was returned to her family she took somersault and used to involve her husband with whom she had contracted marriage of her own free consent and will and against the will of her parents---Ipse dixit of police was not binding upon the courts of law---Police, at the one hand, had declared the petitioner-accused guilty of the offence but on the other hand it had got the Nikah Nama verified which had been found correct---Prosecution had two opinions and as to which opinion was correct, was to be seen by the trial Court after recording of evidence---Mere involvement in a heinous offence by itself did not constitute any ground to refuse bail to the accused who otherwise was entitled to the concession of bail---Investigation was complete and petitioner-accused who was previous non-convict and was no more required by the police for further investigation---Case against the petitioner-accused was called for further inquiry into his guilt covered by subsection (2) of S. 497, of Cr.P.C---Petitioner-accused was granted bail in circumstances.

Syed Zulfiqar Ali Shah for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Muhammad Ramzan, A.S.-I. with record.

Ch. Muhammad Ashraf Jalal for the Complainant.

2013 Y L R 1839

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD MAJEED---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.3660 of 2012, decided on 27th June, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss.14 & 17-A---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability--- Interim maintenance allowance---Interlocutory order---Such order did not have the effect of a final order, which had to be passed ultimately by the Family Court after recording evidence and assessing the paying capacity of the father/husband---Unless an order bears characteristics and effect of a final order, it could not be subjected to judicial scrutiny in proceedings under Art.199 of the Constitution.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss.14 & 17-A---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability--- Interim maintenance allowance---Legislature having specifically prohibited the filing of appeal against an interim order, allowing constitutional petition would tantamount to defeating and diverting the intent of Legislature.

Mian Wasif Saeed for Petitioner.

2013 Y L R 1845

[Lahore]

Before Manzoor Ahmad Malik and Malik Shehzad Ahmad Khan, JJ

TANVEER AHMED and another---Petitioner

Versus

The STATE---Respondent

Criminal Appeals Nos.59-J, 182 and Murder Reference No.40 of 2008, heard on 6th March of 2013.

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

----Ss. 302(b) & 392---Qatl-e-amd, robbery---Appreciation of evidence---Benefit of doubt---Complainant while appearing before the Trial Court, had changed his version---Discrepancies existed between the F.I.R. and the statement of the complainant before the Trial Court---Conduct of both prosecution witnesses was highly improbable as they did not inform the Police, the complainant or anybody else about the incident on the day of occurrence, nor did they participate in the funeral ceremony of deceased---Reliance on the statements of such prosecution witnesses, in circumstances was not safe---Recoveries of pistols .30 bore at the instance of accused persons, were inconsequential as though two empties of pistol, were taken into possession from the place of occurrence, but same were not sent to Forensic Science Laboratory; and report of Forensic Science Laboratory, was simply to the effect that the pistols were in working order---F.I.R. did not mention that deceased was carrying any currency with him when he left the house---Both the witnesses of ocular account in the examination-in-chief stated before the Trial Court that co-accused took out the currency from the pocket of shalwar of deceased---Recovery of cash was not helpful for the prosecution in circumstances---Case of prosecution was that the deceased at the time of his murder was riding on motorcycle and that said motorcycle was also missing and was not recovered at the instance of accused persons---Prosecution case being doubtful in nature, accused was entitled to the benefit of doubt, not as a matter of grace, but as a matter of right---Appeals of accused persons were allowed, their conviction and sentence awarded by the Trial Court, were set aside and they were acquitted of the charges levelled against them while extending them benefit of doubt, and were released.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss.302(b) & 392---Qatl-e-amd, robbery--Medical evidence--- Nature--- Medical evidence was only a supporting piece of evidence because it could confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

Sana Ashraf for Appellant (in Criminal Appeal No.59-J of 2008).

Muhammad Arshad Bhatti for Appellant (in Criminal Appeal No.182 of 2008).

Arshad Mahmood, Deputy Prosecutor General for the State.

Qamar uz Zaman Tarar for the Complainant.

Date of hearing: 6th March, 2013.

2013 Y L R 1856

[Lahore]

Before Amin-ud-Din Khan, J

GUL SHER and others---Petitioners

Versus

DOST MUHAMMAD and others---Respondents

Civil Revision No.2349 of 2005, heard on 19th December, 2012.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Suit for declaration---Oral mutation---Onus to prove---Shifting of onus---Principle---Applicability---Rule of shifting of onus is applicable in simple cases of transactions through oral mutations---When person challenging transaction appears before court and makes statement on oath before court according to his pleadings that he had not transferred the property, then automatically onus shifts upon beneficiary of the transaction.

(b) Islamic Law---

----Gift---Marz-ul-Maut, principle of---Applicability---Gift mutation was assailed on the ground that donor of suit-land was suffering from Marz-ul-Maut, when gift was made in favour of donees---Validity---Donor died on 7-11-1978, and gift was made several months before his death, therefore, gift was not made under Marz-ul-Maut, when nature of disease was not proved---For proving transaction during Marz-ul-Maut, it was the basic fact which was required to be pleaded and proved that transferor was in fear of death and he transferred the property under that fear and disease was of such nature where fear of death was natural but no such facts were either pleaded or proved---Findings recorded by both the Courts below were in accordance with law and facts on record, which needed not to be interfered with by High Court while exercising jurisdiction under S. 115 C.P.C.---Revision was dismissed in circumstances.

Sh. Irfan Akram for Petitioners.

Arshad Nazir Mirza for Respondents Nos. 1 to 3.

Date of hearing: 19th December, 2012.

2013 Y L R 1870

[Lahore]

Before Amin-ud-Din Khan, J

AHMAD ALI and others---Petitioners

Versus

BASHIR AHMED and others---Respondents

Civil Revisions Nos.3990 and 3775 of 2010, heard on 12th June, 2012.

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

----Ss.42 & 45---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Mutation of sale---Attestation---Onus to prove---Plaintiffs claimed that they were owners in possession of suit-land and entries in revenue record had no legal value---Defendants resisted the suit by raising the plea that they had purchased suit-land and revenue record supported their version---Trial Court and Lower Appellate Court concurrently decided the matter in favour of defendants---Validity---Onus to prove valid sale of land in favour of predecessor of defendants was on defendants to prove valid sale and valid attestation of mutation---Compliance of all conditions mentioned in S. 42 of West Pakistan Land Revenue Act, 1967, for valid attestation of mutation were necessary and without strict compliance, the mutation was nullity in the eyes of law---Mutation in question did not create any right or title in suit property in favour of predecessors of defendants and it had also no affect upon the rights of predecessor as well as of plaintiffs---Mutation proceedings were not judicial proceedings and did not at all happen to confer title---Whenever genuineness of any mutation was challenged, burden was squarely on parties relying upon the mutation, to prove actual transaction---High Court declined to close its eyes and validate concurrent findings without application of mind---High Court had to exercise its jurisdiction vested to it under S. 115, C.P.C. and to interfere in illegal findings recorded by courts below, so as to rectify illegality committed by two courts below, when they had ignored basic provisions of law---High Court, in exercise of revisional jurisdiction set aside concur-rent judgments and decrees passed by two courts below and decreed the suit in favour of plaintiffs---Revision was allowed in circumstances.

Qasim Ali v. Sher Muhammad 2007 YLR 1770; Khushi Muhammad and others v. Bashir Ahmad and others 2010 YLR 175; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 and Saleem Akhtar v. Nasir Ahmad PLD 2000 Lah. 385 ref.

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

----Ss.42 & 45---Entry of Jamabandi---Scope---Till the time entry of Jamabandi is not changed through valid attestation of mutation on the basis of any transaction between parties or order passed by any court, previous entry remains in field.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Every wrong entry in new Jamabandi gives new cause of action to a person.

Fakhar-uz-Zaman Akhtar Tarar for Petitioners.

Ch. Riaz Ahmad Kataria for Respondents.

Date of hearing: 12th June, 2012.

2013 Y L R 1881

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD PARVEZ---Petitioner

Versus

ADDITIONAL RENT CONTROLLER, LAHORE and 2 others---Respondents

Writ Petition No.15184 of 2010, decided on 24th January, 2013.

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

----S. 17---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan, Art.199---Constitutional petition--Eviction proceedings---Necessary party---Scope---Person claiming to be impleaded as party on the ground that he had purchased rented property, was not necessary party to be impleaded in rent proceedings.

Raza Hussain v. District Judge, Vehari and others 1986 SCMR 1267 rel.

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

----S.17---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Eviction of tenant---Relationship of land-lord and tenant was denied by tenant---Declaratory suit for determination of rights of the parties pending in civil court---Procedure---Tenant, in circumstances, was required to vacate the rented premises, if he claimed to have purchased the demise premises, as his claim was a subject-matter of a suit for specific performance of agreement to sell.

Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

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

----S.17---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Recovery of possession---Denial of relationship as tenant---Application by subsequent purchaser to be impleaded as party in eviction proceedings---Rent Controller accepted application of subsequent purchaser and impleaded him as party---Effect---If a tenant denied the relationship of the landlord and tenant he should first vacate the premises in his possession and then contest his proprietary rights---Tenant remained a tenant, he could not prolong his occupation by exercising his right of being subsequent purchaser unless so held by the court of competent jurisdiction---Tenant had no status to justify his possession and if he denied the relationship of landlord and tenant he would be an illegal occupant---Ejectment proceedings were between land owner and tenant and entry or interference by the third party was to be jealously guarded---Constitutional petition was allowed---Application filed by the subsequent purchaser was dismissed.

Barkat Masih v. Manzoor Ahmad through L.Rs. 2006 SCMR 1068 rel.

Raza Hussain v. District Judge, Vehari and others 1986 SCMR 1267; Abdul Rasheed v. Maqbool Ahmad and others 2011 SCMR 320; Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. 2006 SCMR 1068; Ghulam Fatima and others v. Rahim Bakhsh and others 1988 SCMR 250; Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024; Khawaja Ziaul Islam v. Alauddin Malik and another 2010 CLC 273; Mst. Khursheed Begum v. Malku and others 1983 SCMR 534 and Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Limited through Managing Director and 5 others 2004 MLD 1395 ref.

Fazal-ur-Rehman Butt for Petitioner.

K.J. Khattak for Respondents Nos.2 and 3.

2013 Y L R 1890

[Lahore]

Before Abdus Sattar Asghar, J

Rai MUHAMMAD RIAZ---Appellant

Versus

EJAZ AHMAD and others---Respondents

F.A.O. No.367 of 2011, heard on 14th March, 2013.

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