2018 Y L R 1409
[Khyber Pakhtunkhwa Bar Council Tribunal]
Before Justice Mohammad Ibrahim Khan, Chairman, Justice Shah Jehan Khan Swati and Justice Noor Alam Khan, Members
AFREEN KHAN---Petitioner
Versus
FARAMOZ KHAN---Respondent
T-8 of 2014, decided on 17th March, 2018.
Legal Practitioners and Bar Councils Act (XXXV of 1973)---
----S. 41---Advocate of the High Courts---Misconduct---Cheating and fraud---Cancellation of license---License to practice obtained before passing LL.B examination---Record showed that the respondent-advocate had obtained his license for subordinate Courts much earlier than qualifying for his LL.B examination---Such fact was also admitted by the respondent in his cross-examination---Respondent was guilty of cheating and committing fraud with the relevant Bar Council before which he forwarded his application for obtaining the license of the subordinate Courts and even of the High Court---Conduct of respondent in suppressing material facts from the Enrollment Committee of the Bar Council was deplorable and unbecoming of a member of the legal fraternity---Bar Council Tribunal directed the relevant Bar Council to issue a notification to the extent of cancellation of licenses of respondent for both the subordinate Courts and the High Court, however no fine was imposed on the respondent due to his prevailing financial circumstances.
Qamar Zaman Shinwari v. S. Nadir Shah Gillani, Advocate 1996 MLD 513 ref.
Iqbal Akhtar for the Complainant/ Applicant along with Attorney of the Complainant in person.
Qazi Zaki-ud-Din for Respondent along with Respondent in person.
2018 Y L R 402
[Federal Shariat Court]
Before Mehmood Maqbool Bajwa, J
BASHIR AHMED and 2 others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.19-K of 2016, decided on 3rd October, 2017.
(a) Penal Code (XLV of 1860)---
----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, haraabah---Appreciation of evidence---Delay of more than ten hours in lodging FIR---Effect---Occurrence took place at 7.00 a.m.---First Information Report was lodged on the same day at 17.30 p.m.---Place of occurrence was at the distance of one and a half furlong from the Police Station---Complainant neither in the FIR nor as a witness disclosed any compulsion in order to justify the delay in lodging the FIR---Delay in lodging FIR though suggested element of deliberation and consultation but since the accused were not nominated in the FIR, therefore question of deliberation and consultation could not be presumed---Presence of the witnesses at the spot could be disputed---Spontaneity of the FIR was the guarantee of truth to a greater extent.
[Case-law referred].
(b) Criminal Procedure Code (V of 1898)---
----S. 161---Statement of witness before police---Delay---Effect---Statement of witnesses were recorded after the delay of one day, which had not been explained by the witnesses---Witnesses did not attribute either delay or malice to the Investigating Officer---Evidence of said witnesses could not be relied upon in circumstances.
[Case-law referred].
(c) Penal Code (XLV of 1860)---
----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, haraabah---Appreciation of evidence---Identification parade---Scope---Prosecution had banked upon the evidence of identification parade supervised by the Judicial Magistrate---Eye-witness stated that three culprits with open face entered the house---Complainant stated that his wife and son told him that dacoits had muffled their faces and muffle of one culprit was removed who was identified by his wife---Statement of complainant and eye-witness on said aspect could not be reconciled and as such no implicit reliance could be placed upon the statements of said witnesses in order to establish the identity of accused as assailants---If the assailants committed occurrence had muffled their faces as per stance of the complainant, it was not possible for the witness to identify the appellants as culprits---Contents of FIR showed that full particulars and description of the accused were not given in it; in such situations, it was not possible for the witnesses to identify the assailants, particularly keeping in view the identification test held on 1.6.2000 while occurrence had taken place on 29.3.2000---Eye-witness/brother of the complainant admitted in cross-examination that he did not disclose the features of the accused to the police, so his evidence was liable to be brushed aside---Identification test was joint, though separate identification parade should have been held, therefore, it would not advance the plea of prosecution---Statements of eye-witnesses showed that the said witnesses did not disclose the role of each accused caused serious blow to the case of prosecution---Prosecution did not produce the Judicial Magistrate, who supervised the identification parade---Original report of identification parade was not brought on record---Circumstances established that no reliance could be placed upon the identification parade---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
[Case-law referred].
(d) Penal Code (XLV of 1860)---
----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that three unknown persons armed with daggers entered the house of complainant in his absence and by showing force took gold ornaments lying in the box---Occurrence was stated to be seen by son of complainant, his wife and brother, who resided near the house of complainant---Witness/brother of complainant had been named as eye-witness of the occurrence but in view of the evidence of eye-witness/son of complainant by no stretch of imagination, he could be stamped as eye-witness---Eye-witness had stated that after departure of the culprits, they raised cries, which attracted brother of complainant, witness, who had seen the culprits---Eye-witness had disclosed that brother of complainant/witness reached after 3-4 minutes of departure of the culprits and he narrated the occurrence to him---Witness deposed that after hearing the cry coming from the house of complainant, he came out of his house and had seen three persons with open faces having draggers in their hands gone from the street near the outer door of the house of the complainant---Said witness though picked accused as assailants in the identification parade but in circumstances, he could not be said to be eye-witness of the occurrence---Witness having seen the accused in the street near the outer door of the house of complainant, by itself would not be sufficient, to presume that the said person was an eye-witness---Complainant had stated that his wife due to removal of muffle of one culprit, identified him as accused and she disclosed his name as well, then the identification of said accused by the witness could not be believed, relied and acted upon---Record showed that complainant, eye-witnesses and accused were village fellows---If the occurrence took place in a daylight and allegedly, the culprits with open face entered the house, it could not be said that the eye-witnesses were unable to identify the appellants as accused---Witness/son of complainant had deposed that culprits started beating him and his mother but said aspect was not disclosed in the FIR---Admittedly, wife of complainant was not subjected to medical examination---Circumstances established that prosecution had failed to prove the charge against the accused persons beyond shadow of doubt, benefit of which would resolve in favour of accused---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(e) Penal Code (XLV of 1860)---
----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, haraabah---Appreciation of evidence---Recovery of gold ornaments and weapon of offence---Effect---Gold ornaments and daggers were recovered from the possession of the accused persons---Prosecution version was that the accused persons got recovered gold ornaments but admittedly there was nothing on record to suggest that said articles were ever identified either by the complainant or by his son/witness or any other person claiming ownership---Said recovery would not advance the plea of prosecution in order to prove the culpability of accused---Recovery of dagger would not be sufficient to prove the guilt of accused persons as the recovery of weapon of offence was a corroborative piece of evidence and could not be the basis for recording conviction.
[Case-law referred].
(f) Penal Code (XLV of 1860)---
----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Robbery, haraabah---Appreciation of evidence---Withholding of best evidence---Effect---Complainant stated that the dacoits caused injures to his wife but she was not produced as witness---Complainant had stated that his wife sustained injuries and also identified one of the accused---Non-production of wife of the complainant caused adverse effect to the case of prosecution.
(g) Criminal trial---
----Evidence---Standard of proof---Suspicion---Suspicion, however, strong could not take the place of proof.
(h) Criminal trial---
----Benefit of doubt---Principle---Benefit of doubt had to be extended in favour of accused as a matter of right.
[Case-law referred].
Kazi Muhammad Ashraf for Appellants.
Shabir Ahmed Kumbhar and Muhammad Nawaz Taheri for the Complainant.
Muzaffar Hussain Salongi DDPP on Behalf of Prosecutor General Sindh for the State.
Date of hearing: 3rd October, 2017.
JUDGMENT
MEHMOOD MAQBOOL BAJWA, J.---Conclusion of trial in case FIR No.13 of 2000 registered under Section 17(3) of The Offences against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) (Hereinafter called The Ordinance) and Section 392 of The Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called The Code), learned 1st Additional Sessions Judge, Thatta through judgment dated 15.02.2005 recorded conviction against the present appellants under Section 392 of the Code and awarded each appellant sentence of three years rigorous imprisonment along with fine to the tune of Rs.5,000/- each and in case of default of payment of fine to further undergo six months R.I. Benefit of section 382-B of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called Act V of 1898) was also extended in favour of appellants.
By way of present appeal, the appellants have called in question vires of said judgment, seeking acquittal while setting aside the judgment.
The appellants earlier preferred appeal before Honourable High Court of Sindh and for want of jurisdiction, it was remitted to this Court through order dated 02.04.2015.
Accusation contained in the crime Report (Ex.8-A) got recorded by Muhammad Soomar (P.W.1) is that on 29.03.2000 at about 7:00 a.m. three unknown persons armed with daggers entered in his house in his absence and by show of force took gold ornaments (detail of which has been given in the crime Report) lying in the box. Detail of occurrence was intimated to the complainant by his son, Muhammad Amin (P.W.2) and wife (not cited as a witness).
The occurrence is stated to be seen by Muhammad Amin (P.W.2) son of complainant as well as Muhammad Ibrahim (P.W.3), brother of the complainant who is residing near the house of complainant and his wife.
During the course of investigation after disclosure each appellant got recovered gold jhoomaks, gold arm belt and daggers through recovery memos (Ex.15-A to 15-C).
After usual investigation and observing codal and legal formalities Report under section 173 of Act V of 1898 was submitted. The appellants who were charged under Section 17(3) of the Ordinance read with Sections 392 and 34 of the Code pleaded not guilty and claimed to be tried.
The appellants in their respective statements recorded under Section 342 of the Act V of 1898 denied the whole incriminating evidence with which they were confronted and pleaded innocence.
The appellants produced Dr. Rafique Ahmed (D.W. 1), Nazir Ahmed (D.W.2) and Liaqat Ali (D.W.3) besides documentary evidence.
The learned Trial Court after hearing the adversaries recorded conviction against the appellants awarding them sentence, the detail of which has been given in para-1 of the judgment.
The learned Counsel for the appellants while questioning the evidentiary value of the evidence led by the prosecution contended that there are material contradictions in the statements of the witnesses. Further contended that Muhammad Soomar, complainant (P.W.1) is not the eye-witness of occurrence and as such his evidence would not advance the plea of prosecution in order to prove the guilt of the appellants. Making reference to the evidence of Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3), it was submitted that the said witnesses did not disclose the role of the appellants as an accused during the course of identification parade as well as while appearing as a witness and as such the evidence would not be sufficient to prove the guilt of appellants. Further contended that description of the assailants was not given by both the witnesses while associating themselves in the investigation which omission in the opinion of learned Counsel for the appellants is sufficient to brush aside the evidence.
Continuing the arguments, it was further argued that all the three appellants were put in for identification jointly though there must have been separate identification parade for each appellant. It was further submitted that there is nothing on a record to suggest the features and description of the dummies in the report and as such the said report would not advance the plea of prosecution. To substantiate the contentions help was sought from the dictum laid down in Lal Pasand v. The State (PLD 981 SC 142) "Siraj-ul-Haq and another v. The State (2008 SCMR 302) and Hakeem and others v. The State (2017 SCMR 1546).
Further contended that there is a delay in holding of identification test and as such same got no evidentiary value. Reference was made to the Ratio expounded in "Shafqat Mehmood and others v. The State (2011 SCMR 537). Adverting to the factum of recoveries, it was submitted that the said aspect was heavily relied upon by the learned Trial Court but since the case property was not produced during the course of trial, therefore, is of little help to the case of prosecution. Reliance was placed upon "Khairuddin and 2 others v. The State (1974 PCr.LJ 219) and "Muhammad Asghar alias Pappu" v. The State" (1999 PCr.LJ 1575). Alternatively, it was argued that the recovery of articles being corroborative evidence would not prove the case of prosecution.
Replying to the argument advanced on behalf of the appellants regarding the delay in conduct of identification test, it was submitted that all the three appellants were arrested on 31.05.2000 as is evident from mashimama (Ex.13-A) and identification parade was held on 01.06.2000 without any delay as is evident from mashirnama Ex. 13-B ). Making reference to the statements of Mir Muhammad (P.W.6) and Ghulam Nabi, Inspector/I.O. (P.W.8), it was contended that the recovery witness as well as Investigating Officer proved the factum of recovery of robbed articles and weapons of offence from all the three appellants. Repelling the contention regarding non-production of case property during the course of trial, it was pointed out that Ghulam Nabi, the then Inspector (I.O.) (P.W.8) categorically stated that the accused as well as property viz. gold ornaments before the court are one and the same.
Continuing the arguments, it was further argued that in view of the evidence led by the prosecution which is worthy of credit, the prosecution established its case against the appellants beyond shadow of doubt. The defence, contended, produced by the appellants coming from the mouth of witnesses (D.W.1 to D.W.3) is neither convincing nor inspire confidence which aspect was rightly pointed out by the learned Trial Court. It was further submitted that the learned Trial Court granted undue premium to the appellants while awarding lesser sentence which should not have been in view of conclusion of learned Trial Court regarding the proof of guilt of appellants beyond shadow of doubt. Highlighting the cumulative effect, it was submitted that the judgment assailed by way of present appeal does not call for any interference.
Delay in lodging FIR though suggests element of deliberation and consultation and can also suggest the absence of the witnesses at the spot as held in a "Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825) but since the accused were not nominated in the FIR, therefore, question of deliberation and consultation cannot be presumed though one can dispute the presence of the witnesses at the spot. It is to be noted that spontaneity of the FIR is the guarantee of truth to a greater extent. Reliance is placed upon the dictum laid down in "Mushtaq Hussain and another v. The State (2011 SCMR 45).
Before dealing with the evidence led by the prosecution, there is another factor which is required to be highlighted. As pointed out, occurrence took place on 29.03.2000 at 7:00 a.m. FIR was lodged though on the same day but at 17:30 p.m. Statements of the witnesses (P.W.2-P.W.3) under Section 161 of the Act V of 1898 were recorded on the next day, i.e., 30.03.2000 as deposed by Sohrab Khan, SIP-Investigation Officer (P.W.7). Delay in recording the statements under Section 161 of the Act V of 1898 has not been explained by the witnesses (P.W.2-P.W.3). It is further to be noted that both the witnesses in their respective statements did not attribute either delay or malice to the Investigating Officer (P.W.7). In the circumstances, the evidence of said witnesses cannot be safely relied upon. If any authority is needed on the point, Reference may be made to "Muhammad Asif v. The State" (2017 SCMR 486), Rahat Ali v. The State (2010 SCMR 584) and Ghulam Qadir and 2 others v. The State (2008 SCMR 1221).
Admittedly, case was registered against un-known accused. Record does not suggest how the appellants came into picture being accused which fact, however, would not be sufficient to put a dent in the case of prosecution by itself warranting acquittal.
In order to establish the guilt of appellants, the prosecution has banked upon the evidence of identification parade supervised by Syed Sagheer Ahmad Naqvi, Judicial Magistrate, Sujawal. Prior to dealing, with the question of admissibility and evidentiary value of identification test, it is desirable to make reference to the deposition of complainant, i.e., Muhammad Soomar (P.W.1) and Muhammad Amin (P.W.2). The later-mentioned witness (P.W.2) stated in his direct statement that three culprits with open faces entered in their house. However, the complainant (P.W.1) introduced a different version by adding that his wife (not produced as a witness) and his son Muhammad Amin (P.W.2) informed him that the dacoits had muffled faces. He further disclosed that his wife also intimated that during the course of robbery, muffle of one culprit was removed who was identified by his wife as Ghulam Ali (appellant No.3).
Statements of the complainant, Muhammad Soomar (P.W.1) and Muhammad Amin (P.W.2) on this aspect cannot be reconciled and as such no implicit reliance can be placed upon the statements of said witnesses in order to establish the identity of appellants as assailants. If the assailants committed occurrence having muffled faces as per stance of the complainant, how it was possible for the witnesses to identify the appellants as culprits?
Perusal of the contents of the FIR (Ex.8-A) reveals that full particulars and description of the accused was not given in it and it just finds mentioned that one of the accused was wearing yellow colour clothes having a strong built while others who were wearing black colour clothes were of medium built. Un-deniably keeping in view this description, it was not possible for the witnesses to identify the assailants, particularly keeping in view the date of identification test held on 01.06.2000 though occurrence took place on 29.03.2000. For all intents and purposes, it will be presumed that the FIR does not contain the features of the accused. However, since the complainant is neither the eye-witness nor the identifier of the appellants, therefore, the fact by itself would not be sufficient to cast doubt about the veracity of prosecution version, particularly keeping in view the reply given in cross-examination by Muhammad Amin (P.W.2) stating that he disclosed description and features of the accused in his statement before the police which reply though was questioned by putting a suggestion in cross-examination but the witness was not confronted with his statement referred to.
In the circumstances, the evidence of Muhammad Ibrahim (P.W.3) is liable to be brushed aside keeping in view this omission in view of rule of law laid down in "Maula Dad alias Maula and others v. Emperor (AIR 1925 Lahore 426), State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo (1993 SCMR 585), Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and Mansoor Ahmed alias Shahzad alias Sheeri and others v. The State" (2012 YLR 2481).
Referring to the evidence of identification parade, it was rightly pointed out by the learned Counsel for the appellants that since it was joint identification test though separate identification parade should have been held, therefore, it will not advance plea of prosecution as ruled in the dictum laid down in "Hakeem and others v. The State (2017 SCMR 1546) relied upon by the learned Counsel for the appellants.
Perusal of the statement of Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) clearly reveals that the witnesses did not disclose the role of each appellant causing serious blow to the case of prosecution as held in Siraj-ul-Haq and another v. The State (2008 SCMR 302).
In view of the infirmities pointed out, no implicit reliance can be placed upon the identification parade. I am fortified in my view by law laid down in "Ghulam Rasool and 3 others v. The State" (1998 SCMR 557), "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127), Solat Ali Khan v. The State" (2002 SCMR 820), Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and Mansoor Ahmed alias Shahzad alias Sheeri and others v. The State (2012 YLR 2481).
Same rule of law was expounded in "Lal Pasand v. The State (PLD 1981 SC 142) relied upon by learned counsel for the appellants.
Even if this aspect is ignored, it would not be sufficient to bank upon the said mashirnama (Ex.13-B) in view of discussion made earlier.
Perusal of the replies given in the cross-examination by Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) clearly reveals that Bashir Ahmed and Feroz Ahmed (appellants Nos.1 and 2) are residents of Chuhar Jamali and the complainant (P.W.1), as well as witnesses (P.W.2-P.W.3) are their village fellows. In the circumstances, when the occurrence took place in a daylight and according to the version of Muhammad Amin (P.W.2) the culprits with open face entered in his house, then how it can be said that the witnesses (P.W.2-P.W.3) were unable to identify the appellants as accused, particularly when the FIR was lodged with the delay of 101/2 hours. It is further to be noted that Muhammad Amin (P.W.2) in cross-examination maintained that inter-se distance between his house and house of Ghulam Ali (appellant No.3) is 70/80 paces. In the circumstances, how one can believe and act upon the version of the complainant as well as the witnesses that the culprits were unknown and stranger.
Viewed from whichever angle, no reliance can be placed upon the evidence led by prosecution including the process of identification test.
According to mashirnama (Exh.15-A), Bashir Ahmed (appellant No.1) got recovered one gold Jhoomak with colour ful pearls and one dagger having two edges, while Feroz Ahmed (appellant No.2) recovered one golden arm belt and one dagger. Through mashirnama (Ex.15-C) Ghulam Ali (appellant No.3) on pointation got recovered one gold jhoomak with colourful pearls and one dagger.
There is no need to deal with the evidence of Mir Muhammad (P.W.6) who is the mashir of all the mashirnamas and Ghulam Nabi-Insecptor/I.O. (P.W.8). The recovery would not advance the plea of prosecution in order to prove the culpability of appellants for two-fold reasons. According to the prosecution version all the three appellants recovered gold arm belt and two gold jhoomaks but admittedly there is nothing on record to suggest that said articles were ever identified either by the complainant (P.W.1) or by his son (P.W.2) or any other person claiming ownership.
Recovery of dagger, even if taken as gospel truth, would not be sufficient to advance the plea of prosecution to prove the guilt of appellants as the factum of recovery of weapon of offence is a corroborative piece of evidence and cannot be basis for recording conviction. Reliance is placed upon the Ratio enunciated in "Noor Muhammad v. The State and another" (2010 SCMR 97) and "Riaz Ahmed v. The State" (2010 SCMR 846).
Non-production of wife of the complainant is another fact, causing adverse effect to the case of prosecution particularly, when as per complainant (P.W.1) she sustained injuries and also identified Ghulam Ali, one of the appellant in view of Article 129(g) of The Qanun-e-Shahadat, 1984 (President Order No.10 of 1984).
Viewed from whichever angle, the prosecution miserably failed to prove the charge against the appellants beyond shadow of doubt.
Suspicion, however, strong cannot take the place of proof.
The learned law Officer as well as learned Counsel for the complainant while making reference to the statements of the appellants under section 342 of Act V of 1898 and evidence of defence witnesses (D.W.1 to D.W.3) and documents produced contended that the said evidence is sketchy and does not inspire confidence which was rightly brushed aside by the learned Trial Court.
Since the prosecution failed to prove its case against the appellants beyond shadow of doubt as discussed, therefore, the defence version regarding false implication, even if not trustworthy, would not be sufficient to grant any premium to the prosecution.
In view of discussion made in preceding paragraphs, there can be no two opinions that prosecution failed to prove its case against the appellants beyond shadow of doubt and as such benefit of doubt has to be extended in favour of appellants as a matter of right. Reliance is placed upon "Tariq Pervez v. The State" (1995 SCMR 1345), "Allah Bachaya and another v. The State" (PLD 2008 SC 349), Wajahat Ahmed and others v. The State and others" (2016 SCMR 2073) and "Hashim Qasim and another v. The State (2017 SCMR 986).
Epitome of above discussion is that while extending benefit of doubt present appeal is allowed and while setting aside the judgment of learned Trial Court recording conviction and awarding sentence to the appellants, they are acquitted.
The appellants are on bail. They and their sureties stand discharged of their respective bonds.
JK/20/FSC Appeal allowed.
2018 Y L R 676
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ
RAHIB ALI and another---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No.26-L of 2011, decided on 31st October, 2017.
(a) Penal Code (XLV of 1860)---
----S. 380---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Theft in dwelling house, marrying again during life time of husband/or wife and zina---Appreciation of evidence---Benefit of doubt---Prosecution case was that the respondent filed a complaint against the accused along with acquitted accused persons with the allegation that they made theft of gold ornaments from his house---Co-accused and acquitted accused who made extra-judicial confession, disclosed the occurrence committed by them, had since died---Complainant revealed that complainant, his brother, and witness, (since given up) when came back at their residence, accused persons were found in a compromising position---Record showed that alleged occurrence of zina was held on 1st September, 2004 at 5.00 p.m.---Said fact was disclosed by complainant of FIR and husband of co-accused in his cross-examination---Complainant of the FIR stated that his signatures were taken by police on blank papers and facts were distorted in the FIR---Record showed that dishonest intention of the police came to the notice of the complainant on 12th September, 2004; complainant of the private complaint, on the other hand, contended that distortion of facts came into the notice of complainant of FIR when cancellation report was endorsed on 21st February, 2006 by the Judicial Magistrate---Question would be if the factum of distortion of facts came to the knowledge of complainant of FIR on 12th September, 2004, why he remained quiet---Said complainant had alleged that since SHO was in league with the accused party, therefore, he did not complain to the high-ups of the police---If the SHO was in league with the accused party, there was no restriction upon complainant to approach the higher authority for redressal of his grievance but, admittedly, no action was taken by him; in such a situation, complainant of FIR or respondent/ complainant of private complaint could have filed the complaint promptly---Complaint was filed after the delay of about 1-1/2 years---Admittedly, private complaint was filed by the respondent and not by the complainant of the FIR---Respondent/complainant of private complaint was real brother of the complainant of the FIR and as such, it would not be possible for him to state that he was unaware of the alleged foul played by the police---Respondent was eye-witness of the stated occurrence who remained associated in the investigation and both the brothers were living under one and the same roof---Since the factum of distortion of facts and collusion of police with accused was in the knowledge of both the brothers right from the very beginning, therefore, delay of about 1-1/2 years in filing complaint cast serious doubt about the veracity of version---Sanity by no stretch of imagination could expect that the accused persons would commit occurrence without bolting the doors and that too in the house where other family members were also putting up---Trial Court acquitted female accused from both the charges through impugned judgment---Respondent assailed the said findings by preferring appeal but same was dismissed as withdrawn---Accused/appellants were also acquitted of the charge under S. 380, P.P.C.---Evidence of witnesses was not acted upon by the Trial Court in its totality against acquitted female accused and was partly rejected against the accused persons---Admittedly, there was no corroboration at all to strengthen the evidence of witnesses, which even otherwise did not inspire confidence---Circumstances established that respondent failed to prove the charge beyond shadow of doubt, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Zafar and others v. Umer Hayat and others 2010 SCMR 1816; Muhammad Salim and 4 others v. Fazal Muhammad and another 2001 SCMR 1738; Muhammad Azad v. Ahmad Ali and 2 others PLD 2003 SC 14; Naeem Hussain v. The State 1968 PCr.LJ 1469; Muhammad Ashraf and another v. The State 2011 YLR 767; Qutab-ud-Din v. The State PLD 2001 SC 101; Allah Ditta v. The State PLD 2002 SC 52; Ghulam Mustafa v. The State 2009 SCMR 916 and Muhammad Asif v. The State 2017 SCMR 486 rel.
(b) Criminal trial---
----Evidence--- Standard of proof---Suspicion---Suspicion, however, strong, could not take the place of proof.
Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 rel.
(c) Criminal Procedure Code (V of 1898)---
----S.173---Investigation report of FIR---Cognizance by court---Principles---Opinion of Investigating Officer who supervised the investigation in FIR concluding falsity of allegations by no stretch of imagination could be taken into consideration.
Muhammad Ahmad (Mahmood Ahmad) v. The State 2010 SCMR 660 rel.
(d) Criminal trial---
----Benefit of doubt---Principle---Even a single reasonable doubt would be sufficient to grant premium to the accused not as a matter of grace and concession but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Allah Bachaya and another v. The State PLD 2008 SC 349 rel.
Mehram Ali Bali for Appellant.
Malik Abdul Sattar Chughtai for the Complainant.
Rai Mushtaq Ahmed, DPP for the State.
2018 Y L R 922
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ
ABDUL SAMAD and another---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No.1-Q, Jail Criminal Appeal No.4-Q and Criminal Revision No.1-Q of 2015, decided on 16th January, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 164---Confession---Voluntariness---Torture by police even on first day after his arrest casts serious doubt about voluntariness of confession.
(b) Penal Code (XLV of 1860)---
----S. 302---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), Art. 40---Offenses Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd and haraaba---Appreciation of evidence---Confessional statement, retracted---Voluntariness of statement---Determining factors---Accused persons were arrested and alleged to have pointed places of recovery of murder without recovery of any dead bodies---Accused persons were convicted for causing qatl-i-amd and sentenced to imprisonment for life---Validity---Unexplained delay in recording confession, torture upon maker of confession during course of investigation, omission to mention factum of removal of handcuffs, failure of Magistrate to mention grant of time prior to making confessional statement, note recorded by Magistrate regarding production of accused at a particular time and recording statement at same time had cast serious doubt about voluntariness of confession---Pointing of places without any recovery was of little help to prosecution to prove guilt of accused persons as same was inadmissible in evidence---Federal Shariat Court extended benefit of doubt to persons as a matter of right and set aside conviction and sentence awarded to them by Trial Court---Appeal for enhancement of sentence was dismissed in circumstances.
(c) Criminal trial---
----Defense plea---Scope---Failure of accused to prove any plea in defense, if taken, by itself is not sufficient to prove case of prosecution---Prosecution is under compulsion to prove its case against accused beyond shadow of doubt.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622; Hashim Qasim and another v. The State 2017 SCMR 986; Suleman v. The State 2006 SCMR 366; Muhammad Pervez and others v. The State 2007 SCMR 670; Naqeeb Ullah's case PLD 1978 SC 21; Khan Muhammad's case 1981 SCMR 597; Ghulam Qadir and others v. The State 2007 SCMR 782; Muhammad Ramzan v. The State PLD 1957 (W.P.) Lah. 956; Naeem Akhtar and others v. The State 1993 Pakistan Supreme Court Cases (Crl.) 845 and Zia-ul-Rehman v. The State 2000 SCMR 528 ref.
Wajahat Ahmed and others v. The State and others 2016 SCMR 2073 and
Mukhtar Ahmed v. The State PLD 2002 SC 792 rel.
Shah Muhammad Jatoi for Appellant (in Criminal Appeal No.1-Q of 2015).
Muhammad Najam-ud-Din Mengal for Appellant (in Jail Criminal Appeal No.4-Q of 2015).
Tahir Hussain Khan for Petitioner (in Criminal Revision No.1-Q of 2015).
Syed Abdul Baqir Shah Addl. P.G. for the State.
2018 Y L R 970
[Federal Shariat Court]
Before Sh. Najam ul Hasan, C.J., Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ
ZULFIQAR ALI---Appellant
Versus
SARFRAZ AHMED and another---Respondents
Criminal Appeal No.41-L of 2005, decided on 20th October, 2017.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----Ss.10 & 11---Criminal Procedure Code (V of 1898), S. 417(2-A)---Zina-bil-jabr, liable to tazir, kidnapping, abducting or inducting woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---Delay of about four days in lodging FIR---Accused was charged for the commission of zina-bil-jabr with the daughter of complainant---Accused and his co-accused persons had fled away taking the victim with them---Occurrence took place on 5th March, 2003 at 9.00 p.m.---Victim was brought to the house of complainant on 7th March, 2003---Complainant submitted application to get the FIR recorded on 8th March, 2003, upon the strength of which crime report was lodged on 9th March, 2003---Complainant justified the delay in lodging FIR by adding in report that respectables of the locality were requested for compromise but their names and other particulars were not disclosed---Said omission was significant, deliberate and thus fatal to the case of complainant.
[Case-law referred].
(b) Criminal Procedure Code (V of 1898)---
----S. 154---FIR---Delay in lodging FIR---Scope---Delay in lodging FIR could be ignored if the ocular account was found convincing and trustworthy.
[Case-law referred].
(c) Criminal Procedure Code (V of 1898)---
----S. 161---Statement of witnesses before police---Delay---Effect---Statement of complainant and victim were recorded after the delay of three days---Statements of witnesses, complainant and victim did not suggest any compulsion to justify such delay---Witnesses were nowhere suggested of any malice on the part of Investigating Officer to justify the delay---Reliance could not be placed upon the statements of the witnesses.
[Case-law referred].
(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----Ss.10 & 11---Criminal Procedure Code (V of 1898), S. 417(2-A)---Zina-bil-jabr, liable to tazir, kidnapping, abducting or inducting woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---Ocular account was furnished by the witnesses including complainant and the victim---First Information Report showed that the victim was laid to earth by the accused and his associates, when complainant and witnesses reached at the place of occurrence---Accusation did not suggest commission of zina by accused with the victim in the presence of complainant and eye-witnesses---Complainant did not state commission of zina by accused at the said place but the eye-witness deposed that they all had seen the accused committing zina with the victim under tree---Complainant and eye-witness were not in agreement with each other on that aspect---Victim did not suggest the commission of zina by accused in the presence of complainant and eye-witnesses---Statement of victim showed that the complainant and eye-witnesses attracted to the spot on raising alarm by her when the act complained of was completed---Eye-witness did not disclose factum of commission of zina by accused in their view in his statement before police, therefore his deposition as a witness on that aspect was result of dishonest improvement, which was sufficient to brush aside the deposition ---Victim had disclosed that she was subjected to zin-bil-jabr but admittedly, there was no eye-witness of the occurrence---Statement of the victim showed that accused pointed pistol on her neck and threatened to murder her if she did not act according to his command---Said fact was not disclosed by her in statement recorded by Investigating Officer---Victim had named the associates of accused in her deposition but their names were not highlighted in her statement recorded by Investigating Officer---She deposed before the court that an inhabitant provided shelter to her in his house but said fact was not disclosed by her during the course of investigation---Lady made said improvements only to justify her omission suggesting inaction and resistance, thus reliance could not be placed upon the statement of victim---Prosecution case was that accused had threatened to murder complainant and eye-witnesses in case of intervention but there was nothing on the record to substantiate the allegation that accused was armed---Victim had made improvements by deposing that accused had weapon, which demonstrated deliberate attempt to justify omission of the complainant and witnesses who did not raise noise while watching the occurrence---Statement of complainant showed that he went alone to trace the victim and he heard cry of victim from a distance of one square beneath a tree---Complainant (father) returned and called his brothers, thereafter they went to search the victim---Such conduct could not be expected from a father---Circumstances established that conclusion drawn by Trial Court recording acquittal of accused was neither perverse nor speculative and as such, appeal against acquittal was dismissed accordingly.
[Case-law referred].
(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----Ss.10 & 11---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Zina-bil-jabr, liable to tazir, kidnapping, abducting or inducting woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---Withholding of best evidence---Effect---Complainant had contended that an inhabitant along with his two sons dropped the victim at his residence---Prosecution was to produce the said inhabitants to substantiate the allegation, which was the best evidence but same was withheld---Non-production of said inhabitants was sufficient to draw adverse presumption under Art. 129(g) Qanun-e-Shahadat, 1984 against the prosecution.
[Case-law referred].
Ch. Abdul Waheed for Appellant.
Malik Asif Mehmood Nissoana for Respondents.
Rai Mushtaq Ahmad, DPP for the State.
2018 Y L R 1071
[Federal Shariat Court]
Before Sh. Najam ul Hassan, C.J., Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ
WAZIR MUHAMMAD alias LAL MUHAMMAD---Appellant
Versus
The STATE---Respondent
Jail Criminal Appeal No.39-Q and Murder Reference No.2-Q of 2001, decided on 7th February, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 376---Federal Shariat Court (Procedure) Rules, 1981, R.25---Penal Code (XLV of 1860), S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Dacoity with murder---Haraabah---Award of death sentence---Reference to High Court---Trial Court recorded conviction of accused, sentenced him to death and submitted reference to High Court for confirmation or otherwise of death sentence---Rule 25 of the Federal Shariat Court (Procedure) Rules, 1981, provided that reference submitted to High Court by lower court, would be heard as an appeal and the provisions contained in Chapter III of the said Rules, would mutatis mutandis, apply---High Court under provisions of S.376, Cr.P.C., was competent to make three types of orders, while deciding the reference under S.374, Cr.P.C. could confirm the sentence, or pass any other sentence warranted by law; could annul the conviction and convict accused of any offence of which the Sessions Court might have convicted or order fresh trial on the same or on amended charge; could acquit the accused.
(b) Penal Code (XLV of 1860)---
----S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Dacoity with murder---Haraabah---Appreciation of evidence---Accused was not named in the crime report and case was registered against unknown accused---Ocular account furnished by prosecution witnesses and medical evidence, though proved the unnatural death of the deceased, but that fact by itself would not be sufficient to prove the culpability of accused---Prosecution witnesses, did not highlight the description of accused in their respective statements recorded under S.161, Cr.P.C.---Omission to disclose descriptions of un-identified accused was significant going to the root of the case, putting a serious dent in the case of prosecution and by itself was sufficient to brush aside the proceedings of identification parade---Witnesses in their evidence, failed to describe role of accused in the occurrence---Statements of the prosecution witnesses under S.161, Cr.P.C., were recorded on the next day of the occurrence---Prosecution witnesses had made improvements in their direct statements, which raised serious question about the veracity of the witnesses---No empty was recovered from the spot---First Information Report, though was lodged with promptness, but that fact by itself was not sufficient to prove the culpability of accused when he was not named in the FIR---Recording conviction of accused under S.396, P.P.C., was also legally not sustainable as the number of accused, was less than five---Prosecution had failed to prove its case against accused beyond shadow of doubt, benefit of which was to be extended to the accused---Conviction recorded and sentence of death awarded to accused, were set aside answering murder reference in negative.
[Case law referred].
(c) Penal Code (XLV of 1860)---
----S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Dacoity with murder--- Haraabah--- Recording of conviction---Inference, by itself, would not be sufficient to prove the guilt of accused, though it could have been used as positive inference in order to support the convincing and confidence inspiring evidence, which prosecution failed to produce---Convictions could not be based on high probabilities.
[Case law referred].
(d) Penal Code (XLV of 1860)---
----S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Medical evidence---In the absence of convincing evidence, either direct or circumstantial, the medical evidence, which was confirmatory in nature, would not be sufficient to connect the convict in the commission of offence.
Nemo for Appellant.
Mehr Sardar Ahmed Abid for the State (in Murder Reference No.2-Q of 2001).
Syed Abdul Baqir Shah, Additional Prosecutor-General, Balochistan for the State.
2018 Y L R 1383
[Federal Shariat Court]
Before Syed Muhammad Farooq Shah, J
DILDAR alias GIDARI and another---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos.25-I and 26-I of 2017, decided on 8th March, 2018.
Penal Code (XLV of 1860)---
----Ss. 324, 392 & 337-F(i)(iii)---Criminal Procedure Code (V of 1898), S.342---Attempt to commit qatl-i-amd---Robbery---Appreciation of evidence---Sentence, reduction in---Offence under S.324, P.P.C., had neither been mentioned in the charge, nor such point was formulated in the impugned judgment and no specific question touching the ingredients of S.324, P.P.C., was put to accused persons by the Trial Court---Said omission had shown that accused had not been afforded opportunity to explain all incriminating circumstances bearing in evidence against them---Trial Court was bound to ask such questions to accused with detail of those pieces of evidence, which had to be made the basis of conviction---Conviction of accused could not sustain on account of omission to put such questions to accused under S.342, Cr.P.C., and such illegality/gross irregularity, could not be cured---Accused persons, without pressing appeal on merits, however, contended that they were sole bread winners of their families and were behind the bars since more than 3 years; being convict they would be satisfied, if the fine/daman amount be remitted---Counsel representing the State recorded "no objection" to such proposition---Accused persons had served the substantive sentence of 2 years, 15 days, they had earned remission of 1 year, 4 months and 27 days---Benefit of S.382-B, Cr.P.C., was extended to accused persons and as per Jail Role their under trial period calculated by Jail Authority was 1 year, 9 months and 21 days---Total period of their confinement was 5 years, 7 months and 3 days---Plea of reduction of sentence, would not constitute bar for the appellate court from interfering where findings were based on erroneous and speculative presumptions or non-reading or mis-reading of evidence---Conviction and sentence recorded by the Trial Court under S.324, P.P.C. was set aside---Accused persons having already served the conviction and sentence recorded in remaining offences, except fine and daman, which amount was remitted and accused were set free in circumstances.
Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Ilyas v. The State 1997 SCMR 25; Ghulam Qadir v. State 2008 SCMR 1221; Mehmood Raza v. The State and 3 others 2006 PCr.LJ 149; Muhammad Shah v. The State 2010 SCMR 1009; Sheral alias Sher Muhammad v. The State 1999 SCMR 697 and Qaddan and others v. The State 2017 SCMR 148 ref.
Abdul Razzaq v. The State 2002 SCMR 1239 rel.
Muhammad Sharif Janjua for Appellants.
Zafar Ahmed Khan, Additional Prosecutor General Sindh for Respondent.
2018 Y L R 1508
[Federal Shariat Court]
Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ
MANZAR ULLAH---Appellant
Versus
ASGHAR and 3 others---Respondents
Criminal Appeals Nos.27-P, 32-P of 2004 and 40-P of 2007, decided on 2nd April, 2018.
(a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---
----S. 17(4)---Qanun-e-Shahadat (10 of 1984), Arts.38, 39 & 40---Criminal Procedure Code (V of 1898), S.417---Haraabah---Appeal against acquittal---Reappraisal of evidence---Testimony of the complainant, was not only doubtful, but the very identification parade on the basis whereof, the case of prosecution rested was shettered---Complainant not only failed to furnish description of culprits, but also did not attribute any role to them---Not only there was sufficient unexplained delay in recording the alleged judicial confessional statement, but Judicial Magistrate, while recording the same had not complied with the requisite formalities---Judicial confessional statements of accused persons, were exculpatory and played no incriminating role---Numerous contradictions, existed to believe that judicial confessional statements were untrue, untrustworthy and not confidence inspiring---Same being not worthy of credence, could not be believed for holding accused persons to be guilty of the charge, especially, when such judicial confessional statements had been retracted---Pointation of the place of occurrence by accused persons in presence of prosecution witnesses, had no importance as it could not be considered as incriminating evidence in terms of Art.40 of the Qanun-e-Shahadat, 1984---Such pointation would be hit under Arts.38 & 39 of Qanun-e-Shahadat, 1984, as in consequence of such pointation, neither any recovery, nor any other new fact had been discovered---No reliance, could be placed upon such evidence---Testimony of prosecution witness, who was stated to have got recovered Kalashnikov on the pointation of an accused, was important to be examined, but confessional statement of one of the accused persons had suggested that the role of making fire from Kalashnikov upon the deceased, was attributed to another accused---Recovery of Kalashnikov, therefore, was of no corroborative value, even if, with the positive matching result---Trial Court had rightly appreciated the evidence in true perspective and impugned judgment, did not suffer from any infirmity, illegality, mis-reading and non-reading of evidence, warranting interference---Appeals, being meritless, stood dismissed, in circumstances.
Hayat Bakhsh and others v. The State PLD 1981 SC 265; Nazar Hussain v. The State 1985 SCMR 614; Ikramullah and others v. The State 2014 SCMR 1002 and Muhammad Ismail and others v. The State 2017 SCMR 898 ref.
Azhar Mehmood and others v. The State 2017 SCMR 135; Bacha Zeb v. The State 2010 SCMR 1189; Lal Pasand v. The State PLD 1981 SC 142 and Mushtaq v. The State 2012 SCMR 109 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Scope---Appeal against acquittal had limited scope, which did not allow interference; unless and until the verdict was based on speculation, capricious, contrary to the evidence on record, flimsy and whimsical.
Zaiul Rehman v. The State 2000 SCMR 528; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710; Azhar Mehmood and others v. The State 2017 SCMR 135; Hafiz Shaikh Anwar-ul-Haque through L.Rs. v. Jehan Khan and others PLD 2011 SC 540 and Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227 ref.
Nemo for Appellant.
Nemo for Respondents.
Malik Akhtar Hussain Awan, Assistant A.G., KPK for the State.
2018 Y L R 1533
[Federal Shariat Court]
Before Dr. Allama Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ
MASHOOQUE ALI---Appellant
Versus
The STATE---Respondent
Jail Criminal Appeal No. 1/I of 2018, decided on 13th April, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Qatl-i-amd, robbery, haraabah---Appreciation of evidence---Police, conducted initial investigation of the offence, three days prior to lodging the FIR---No explanation was provided for lodging the FIR after two days of the burial of the deceased---Complainant failed to furnish circumstances beyond his control or any sound justification for not lodging the FIR on the day of occurrence---Medical Officer had issued final medical certificate without going through the X-Ray or any other test report, that too after lapse of more than two years---Investigation was initiated prior to the registration of FIR; which could be presumed to be result of deliberation, consultation, and would establish ulterior motive to get the accused convicted---Material discrepancies, could be noted in the prosecution case---Mushirs, were closely related to each other---No inhabitant of the locality, was associated at the time of preparation of different memos, despite many, people of the locality were found present---Such was a clear violation of S.103, Cr.P.C. and fatal to the prosecution case---Case set up by the prosecution, appeared to be concocted and could not be considered trustworthy due to contradictions and inconsistencies in the ocular account, medical and circumstantial evidence---Prosecution, having failed to prove the case against accused beyond shadow of reasonable doubt, impugned judgment was set aside and accused was acquitted of the charge.
[Case-law referred].
(b) Criminal Procedure Code (V of 1898)---
----S. 154---Information in cognizable cases---Under S.154, Cr.P.C., any information relating to the commission of cognizable offence, would be reduced in writing.
[Case-law referred].
(c) Criminal trial---
----Benefit of doubt---If a single circumstance, would create reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace, but as a matter of right.
[Case-law referred].
Syed Muhammad Tayyab for Appellant.
Zafar Ahmed Khan, Addl. Prosecutor General of Sindh for Respondent.
2018 Y L R 1964
[Federal Shariat Court]
Before Mehmood Mqbool Bajwa, Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ
Haji ABDUL JABBAR THEBO---Appellant
Versus
IMDAD ALI and 6 others---Respondents
Criminal Appeal No.1-K of 2017, decided on 14th May, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 337(i)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah, haraabah---Appeal against acquittal---Reappraisal of evidence---Incident had occurred in the dark night in the open fields, where there was no source of any light---Report was lodged to the Police with delay of 39 hours without any plausible explanation, which had given rise to question of premeditation, consultation and deliberation---No reliance could be placed upon such evidence/afterthought, being outcome of consultation and deliberation---Source of identification narrated by the eye-witnesses, was the car head lights, which source could not be believed as a strong reason for identifying culprits in circumstances---Driver of the vehicle, who was eye-witness of the occurrence, had not been produced without any plausible and cogent reason---Non-production of such an essential witness had created doubt in the case of the prosecution---Recovery of the spoils of dacoity and weapon used in the crime, though were corroborative in nature, but would lose its worth, if the substantive evidence was found to be doubtful---Statement of recovery witness was contrary on material points, which had made the recovery proceedings doubtful---Recovery of mobile set was irrelevant to the crime as neither the call data report had been collected nor at the time of lodging FIR any details of mobile number and design and colour, were furnished---No explicit reliance could be placed on recovery as the prosecution had failed to establish said recovery through independent witness and also beyond any reasonable doubt---Medical evidence, at the best had proved the unnatural death of the deceased with fire arm, but did not connect accused persons in any manner with the murder of the deceased---Impugned judgment of the Trial Court did not suffer from any illegality, perversity, mis-reading and non-reading of evidence---Appeal against acquittal was dismissed, in circumstances.
Farman Ahmad v. Muhammad Inayat 2007 SCMR 1825; Kashif Ali v. Judge ATA PLD 2016 SC 951; Noor Muhammad v. The State 2008 SCMR 69; Lal Khan v. State 2006 SCMR 1847 and Ali Sher and others v. State 2008 SCMR 707 ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 417 & 410---"Appeal against acquittal" and "appeal against conviction"---Distinction---Scope of appeal against acquittal, had a restricted and narrow range of interference---Approach to appeal against conviction and appeal against acquittal, had wide difference---Appellant, in appeal against conviction, would assail his guilt, whereas through appeal against acquittal verdict of dual innocence was attacked---Judgment in appeal against acquittal would not be reappraised, even if, the court would come to different conclusion than that of the court acquitting accused; unless the conclusion drawn by the said court was ridiculous shocking and artificial---If, there were two different views, even then in ordinary course, no interference was to be done, unless an error of law appeared on the face of record, resulting in mis-carriage of justice.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Azhar Ali v. State PLD 2010 SC 632; Zeeshan Afzal alias Shani v. State 2013 SCMR 1602 and Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 ref.
Aijaz Shaikh for Appellant.
Saleem Akhtar Buriro, Additional Prosecutor General for the State.
2018 Y L R 2307
[Federal Shariat Court]
Before Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ
FARMAN ALI---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.15-I of 2017, decided on 11th April, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that some unknown accused persons murdered the son of complainant after snatching his motorcycle---Record showed that entire case of prosecution was based upon circumstantial evidence, as occurrence was unseen and there was no eye-witness of the alleged crime---Complainant had arrived on the crime scene earlier than the police officials, but while lodging the report, he had not nominated any one responsible for the crime and stated that he had no enmity with anybody, as such, he did not know as to who had committed the crime---Complainant, later on, got recorded statement under S. 164, Cr.P.C. and nominated the accused and co-accused to be involved in the alleged crime---Involvement of accused persons by the complainant was neither based on information of someone, who had seen the occurrence nor on any other plausible circumstantial evidence, which could be read in evidence---Statement of complainant was merely based on speculation and undisclosed information; such statement could only be treated as supplementary statement recorded after some time, which testimony was not of any worth---Evidence available on record showed that there was no nexus with one and the other and it did not complete the chain as it was broken because, it could not link the accused with the deceased without any shadow of doubt---Judicial confessional statement was neither supportive of the recovery nor any other circumstance, which could hold the accused to be felon of the crime---Circumstances established that prosecution had failed to bring home the charge against accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
2017 SCMR 898; 2016 SCMR 274; 2015 YLR 1279; 2017 SCMR 986; PLD 2006 SC 87; 2005 YLR 908; PLD 2005 SC 168 and 2007 SCMR 782 ref.
Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951; Muhammad Ismail and others v. The State 2017 SCMR 898; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Naveed Akhtar v. The State 2015 YLR 1279 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention, haraabah---Appreciation of evidence---Identification of incriminating articles---Recovery of motorcycle on the pointation of co-accused--- Reliance--- Scope--- Record showed that alleged stolen motorcycle was recovered on the pointation of co-accused, which was not worthy of credence---Complainant, neither in the FIR nor in the statement recorded under S. 164, Cr.P.C., had given the registration and chasis numbers and other details of the stolen motorcycle--- Complainant had subsequently identified the alleged stolen articles in an identification parade of articles but the same was of no worth, because while carrying out such identification, neither any other independent witness had been associated nor legal requisites had been followed---Identification of articles would be immaterial having no sanctity at all.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention, haraabah---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Recovery of crime weapon (30-bore pistol) on the pointation of the accused was not worthy of reliance because Forensic Science Laboratory showed that the empty recovered from the place of occurrence did not match with the recovered pistol; it could not be ascertained, in circumstances, that the pistol was the same, which had been used in the alleged crime.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention, haraabah---Appreciation of evidence---Retracted confession---Scope---Accused was charged for the murder of son of the complainant---Allegedly, accused and co-accused made judicial confession, which was retracted---Effect---Judicial confession revealed that two shots were fired upon the deceased against which, one hit the deceased, following his death but such stance did not corroborate from the recovery, as only one empty was secured by the police---Judicial confession of co-convict showed that the stolen motorcycle was sold out by him in a festival in the sum of Rs. 28,000/-, but the recovery of motorcycle was effected on his pointation from an abandoned and deserted house---Circumstances persuaded that the judicial confession was untrue and not confidence inspiring---Record transpired that judicial confession had been reduced into writing in English and not in the language of the maker, which was also not understandable---Judicial Magistrate, who recorded confessional statement, had not mentioned in the certificate that he understand Pushto language and that the confession was translated word-by-word from Pushto to English---Absence of such certificate at the foot of such statement would make the same worthless, which could not be relied or acted upon---Accused and co-accused were in need of the interpreter while recording statement under S.342 Cr.P.C.---Neither any interpreter was appointed to translate nor such factum was disclosed in the certificate at the foot of their statement recorded under S. 342, which further created doubt about the veracity of judicial confessions---Co-accused maintained to have merely purchased the mobile set from another co-accused, but absolved himself for having knowledge about the said mobile set being a stolen or snatched one---Said confessional statement had become exculpatory, which was not only inadmissible but of no help to the prosecution in any manner.
Hashim Qasim and another v. The State 2017 SCMR 986 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention, haraabah---Appreciation of evidence---Retracted confession---Scope---Retracted judicial confession could be made basis for convicting and awarding sentence, subject to some independent corroborative evidence.
(f) Criminal Procedure Code (V of 1898)---
----S. 164---Confessional statement, recording of---Scope---Judicial Magistrate must reduce the confessional statement in his own hand writing---If there was a genuine compelling reason for not doing so, then it must be explained through a note that it was dictated to a responsible official like Stenographer or Reader, who was also to administer oath that he would correctly type or write the version---If the confessional statement was recorded in some other language, then the same was to be read over and explained to the accused in the language, he fully understood and a certificate regarding transcribing such facts be issued.
Muhammad Ismail and others v. The State 2017 SCMR 898 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.
(g) Criminal Procedure Code (V of 1898)---
----S. 164---Confessional statement---Scope---Judicial confession must be relied upon if the same was rendered voluntarily without any duress.
Ghulam Qadir and others v. The State 2007 SCMR 782 and Abdul Sattar and another v. The State and another 2005 YLR 908 rel.
Shahid Zaman Yousafzai for Appellant.
Wilayat Khan, Assistant Advocate General KPK for Respondent No.1.
Respondent No.2 in person.
2018 Y L R 2363
[Federal Shariat Court]
Before Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ
KALEEM ULLAH---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.28-I of 2017, decided on 2nd May, 2018.
(a) Constitution of Pakistan---
----Art.203-D---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 17(4), 7, 16, 20 & 24---Penal Code (XLV of 1860), S. 302(b)---Criminal Procedure Code (V of 1898), S. 410---Jurisdiction of Federal Shariat Court---Scope---Complainant had challenged the jurisdiction of Federal Shariat Court on the ground that since conviction and sentence had not been recorded under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (the Ordinance) but under S. 302(b), P.P.C., therefore appeal was competent before the High Court---Validity---If conviction and sentence was either passed under the Ordinance or in case the same had not been proved due to non-fulfilment of requisites as contemplated under Ss. 7 & 16 of the said Ordinance, the punishment was directed to be awarded under S. 20 of the said Ordinance---Appeal against conviction and sentence rendered either under specific offences of the Ordinance or under the Penal Code, but power to impose sentence of imprisonment for a term exceeding two years, shall lie only to the Federal Shariate Court.
Muhammad Abbas and another's case 1984 SCMR 129; Ghazanfar Ali v. The State 2010 YLR 657; Ijaz and others v. The State 2016 PCr.LJ 130; Khushdil v. The State 2017 YLR 835; Muhammad Tariq's case 2009 PCr.LJ 747 and Attaullah v. Abdul Razzaq and another PLD 2002 SC 534 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, haraabah--- Appreciation of evidence---Benefit of doubt---Occurrence was an unseen incident---No direct evidence of the alleged incident was available, except circumstantial evidence---Prosecution case was that brother of the complainant had been murdered by some unknown culprits, who had also taken away his car as well---Complainant maintained that he had no enmity with anyone---Investigating Officer got arrested the accused on the basis of Phone Call Data Record---Complainant, after the arrest of accused, got recorded supplementary statement, wherein he nominated the accused as the culprit on the basis of self-intuition---Record showed that it was a case of blind murder, which had been witnessed by none---Murder of the brother of the complainant had been committed with the purpose of dacoity but as to why the dacoit would murder to take out the registration book of the car in question---Said aspect had not been explained at any stage by the prosecution---Snatched vehicle was recovered lying abandoned in the graveyard on the very next day of the occurrence---Record transpired that accused allegedly made confessional statement by stating that he stood by near the nursery bridge, aboard the car of deceased and on the way, co-accused took pistol from him, murdered the deceased and dead body was thrown outside the car---Confessional statement of the accused showed that he along with co-accused went to other city and handed over the vehicle to nephew of co-accused---Statement of said nephew of co-accused was allegedly recorded under S. 164, Cr.P.C., who belied the confessional statement of the accused with regard to car in question---Said witness had maintained that when he had seen blood stains upon the clothes of his maternal uncle/co-accused, he became suspicious on finding no wound on his person---Co-accused when stated to have snatched the said car so as to sell it, said nephew of co-accused refused to give him shelter, who left the said car at some other place---Circumstances suggested that alleged confessional statement of accused was contrary to the so-called corroboratory evidence of nephew of co-accused---Accused could not be held guilty of capital charge by relying upon the said untrue and inadmissible judicial confession of accused---Statement of nephew of the co-accused could not be read in evidence as he had not stepped into the witness box to affirm the facts narrated in his alleged confessional statement---Judicial Magistrate, who allegedly recorded statement of said witness, did not mention the appearance of said witness before him and recording his statement---Admittedly, nephew of the co-accused had not been produced by the prosecution before the court, whereof adverse inference could be drawn that in case said witness appeared, he would testify against the prosecution and in favour of the accused---Statement of said witness, in circumstances, could not be taken into account as incriminating piece of evidence, credible enough to warrant conviction---Prosecution relied upon Phone Call Data Record of the accused but there was no signature of authorised officer of the concerned company, thus it could not be safely relied upon in any manner---Investigating Officer had himself generated such CDR or the same had been issued by the company concerned was doubtful---Neither there was any transcription, pertaining to the conversation of alleged crime nor proof of issuance of the SIM number in question allegedly used either by the accused or by co-accused in their names---Recovery of stolen car was also fruitless in the present case as it was found lying abandoned in the graveyard---Prosecution had not offered any explanation as to why and who left the car over there---Neither any prosecution witness had clarified the mystery nor such explanation could be gathered or found in the alleged confessional statement of the accused or in the statement of nephew of the co-accused---No evidence was found, which could connect the accused with the alleged stolen car thus, such recovery had no nexus with the accused---Circumstances established that prosecution had failed to prove the charge against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
2018 MLD 12; 2017 YLR 515; 2015 YLR 2076; 2016 YLR 1291; 2017 SCMR 986; 2017 SCMR 898; 1987 PCr.LJ 884; 1985 PCr.LJ 829; PLD 1982 Kar. 975; 1992 PCr.LJ 2119; 2016 YLR 2212; 2016 SCMR 274; PLD 2002 SC 534; 2009 PCr.LJ 747; 1995 SCMR 1365; 2013 PLR 612; 2012 PCr.LJ 588; 2010 SCMR 55; 2004 YLR 1088; 2010 PCr.LJ 1011; PLD 2007 SC 202; 2010 PCr.LJ 192; 2014 PCr.LJ 1036; PLD 2005 SC 168; PLD 2006 SC 219 and 2010 SCMR 1090 ref.
(c) Criminal Procedure Code (V of 1898)---
----S. 161---Supplementary statement---Scope---Supplementary statement was always considered to be an afterthought and of no credence, particularly in the case of capital charge.
Kashif Ali v. The Judge ATC and another PLD 2016 SC 951 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 164---Judicial confession---Retraction---Scope---Retracted judicial confession could be made basis for awarding conviction and sentence---If the case was merely based on circumstantial evidence, the judicial confession must be corroborated with some un-impeachable, independent corroborative evidence, particularly, in a case where the accused had to be responsible for the capital charge.
(e) Penal Code (XLV of 1860)---
----S.302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, haraabah---Appreciation of evidence---Judicial confession---Scope---Accused person had allegedly made judicial confession, recorded by Judicial Magistrate---Judicial Magistrate had committed fatal irregularities, which had rendered the confessional statement inadmissible, as such no explicit reliance could be placed on such evidence, particularly, when a judicial confession was retracted one---Questions put to the accused before recording confessional statement had not been reduced into writing by the Judicial Magistrate in his own handwriting, which he was obliged to do so---Judicial Magistrate had not given sufficient time of reflection before recording statement under S. 164, Cr.P.C. as it was incumbent upon him to have had given sufficient time of reflection with three intervals, thus, Judicial Magistrate failed to observe the pre-cautions held to be necessary before recording a confessional statement---Certificate issued by Judicial Magistrate as envisaged under S. 364(2), Cr.P.C. lacked the time of reflection, recording confessional statement of the accused in his language (pushto), warning that if he recorded or not recorded the judicial confession, he would not be handed over to police again and that he himself was acquainted with pushto language---After recording of the alleged confessional statement of the accused, he was handed over to the Naib Court for remanding him to judicial lockup---Such confessional statement could neither be considered as voluntary nor admissible in evidence.
Hashim Qasim and another v. The State 2017 SCMR 986; Noor Ahmad and others v. The State 2017 YLR 515; Kabir Shah v. The State 2016 YLR 1291; Qaisar Ali v. The State 2016 YLR 1903 and Asif Mehmood v. The State 2005 SCMR 515 rel.
(f) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Medical evidence--- Evidentiary value--- Medical evidence could not be used as corroborative piece of evidence---Medical evidence could affirm kind of weapon used type and duration of injury sustained---Such evidence could be used as a confirmatory evidence and for contradicting the ocular evidence but for no other purpose.
Hashim Qasim and another v. The State 2017 SCMR 986 rel.
(g) Qanun-e-Shahadat (10 of 1984)---
----Arts. 38, 39 & 40---Extra judicial confession/disclosure of accused---Scope---Accused made extra judicial confession in the presence of complainant, while making pointation of the place of alleged occurrence---Same was inconsequential for not being admissible and worthy of credence---Pointation of the place of occurrence could not be considered as discovery of new and fresh fact as contemplated under Art. 40 of Qanun-e-Shahadat, 1984---Said pointation was hit under Arts. 38 & 39 of Qanun-e-Shahadat, 1984 because the place of occurrence was already known and inspected by Investigating Officer and other officials in the presence of complainant while preparing sketch plan---Pointation of the place of occurrence at a subsequent stage by the accused in no terms could be believed to be discovery of new facts.
Zia ur Rehman v. The State 2000 SCMR 528 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.
(h) Criminal Procedure Code (V of 1898)---
----Ss. 164 & 364--- Extra judicial confession--- Scope--- Extra judicial confession was a weak type of evidence requiring strong and independent corroboration to prove factum.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.
Sher Afzal Khan Marwat and Shahidullah for Appellant.
Akhtar Hussain Awan, Assistant Advocate General, KPK for Respondent No.1.
Muhammad Ashraf Khan for Respondent No.2.
2018 Y L R 1393
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J
ABAIDULLAH BAIG---Petitioner
Versus
PRINCE SALEEM KHAN---Respondent
Petition No.176 and S.M.C. No.13 of 2017, decided on 9th April, 2018.
Representation of the People Act (LXXXV of 1976)---
----S. 12(2)--- Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 22---Election for Gilgit Baltistan Legislative Assembly---Nomination papers, rejection of---Judgment debtor/defaulter---Banking Court had passed a judgment/decree against the returned candidate before he submitted his nomination papers for contesting election---Appeal against such judgment/decree had to be filed in the Chief Court within 30 days, however the same was filed after a lapse of 2 years, 6 months and 5 days, without filing any application for condonation of delay---Such time-barred appeal was incorrectly entertained by the Chief Court without any objection---Even otherwise, Chief Court gave directions to maintain the status quo and never suspended the operation of the impugned judgment/decree of the Banking Court, which meant that returned candidate remained a judgment debtor---At the time returned candidate was (incorrectly) declared to be qualified to contest the election, he was admittedly a judgment debtor/defaulter and could not contest the election---Supreme Appellate Court set-aside the election of the returned candidate and declared the election as void ab initio, illegal and held without lawful authority, and directed the office of the Chief Election Commissioner to de-notify the returned candidate as member Gilgit-Baltistan Legislative Assembly forthwith, and announce the "election schedule" of bye-election within two weeks for holding the same within prescribed time in accordance with law.
Manzoor Ahmed Advocate for Prince Saleem Khan Member Gilgit-Baltistan Legislative Assembly.
Abaidullah Baig, Conteseting Candidate GBLA-6 Hunza-III.
Munir Ahmed Advocate along with Abid Raza Election Commissioner Gilgit-Baltistan for Chief Election Commissioner Gilgit-Baltistan.
Sher Madad, Advocate General Gilgit-Baltistan for the Provincial Government.
The Javiad Akhtar, Deputy Attorney General for Pakistan at Gilgit.
2018 Y L R 1547
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J
NASIR IQBAL---Petitioner
Versus
The STATE---Respondent
Criminal Appeal No.12 of 2017 in Criminal P.L.A. Nos.13-14 of 2017, decided on 26th January, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Unseen occurrence---Complainant/father of the deceased, had not nominated any accused---After registration of FIR and post-mortem of the deceased, Superintendent of Police, disclosed the name of accused who had allegedly committed the murder---Eye-witness, who deposed about place of occurrence, had not seen the accused while firing at the deceased---Prosecution witness, who claimed to have identified accused in Police Station, admitted that he was detained in Police Station for one or two days for interrogation/inquiry and he was not produced in any court of law---Said witness stated that the identification memo, did not contain his signature, date and the signature of other private witnesses of the identification proceedings and admitted that during the identification parade, he was in Police custody---Credibility of the witnesses and their presence at the crime scene, seemed doubtful---Statements of both the said witnesses were contradictory in nature---No corroborative piece of evidence, was available on record, which could connect accused with the commission of the alleged crime---Judgments of both the courts below were the result of non-reading and mis-reading of the prosecution evidence and material on record---Petition for leave to appeal, was converted into appeal and was allowed, conviction and sentence awarded to accused, were set aside---Accused, was acquitted from all the charges by giving him the benefit of doubt.
2010 GBLR 249; 2016 MLD 01; 2016 MLD 1107; PLD 1960 Pesh. 74; 2016 PCr.LJ Note 17 and PLD 2004 Quetta 118 ref.
(b) Administration of justice---
----Principle---Courts of law were bound to administer justice according to law and not according to their moral conviction, however, strong that could be---Crime was to be proved through cogent, tangible and strong evidence.
(c) Criminal trial---
----Benefit of doubt---Principle---Concept of benefit of doubt, was deep rooted---For giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts---If a slightest doubt would arise, the benefit of such doubt, must be given to accused.
Jahanzaib Khan along with Ali Nazar Khan, Advocate-on-Record for Petitioner.
Amjad Hussain for the Complainant.
Advocate General along with Saeed Iqbal, Deputy Advocate General for Respondents/State.
2018 Y L R 1579
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J
MUHAMMAD HANIF---Petitioner
Versus
SHAH ALAM and 2 others---Respondents
Cr. Appeal No.6 in Cr. PLA No.9 of 2016, decided on 26th January, 2018.
Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Police did not recover dead body of deceased in presence of prosecution witnesses--- Prosecution witness deposed that, he did not see the dead body recovered by the Police; that Police had shown a bag to the prosecution witnesses claiming that the dead body of the deceased was in the said bag---Dead body was neither identified by the prosecution witnesses nor by the legal heirs of the deceased---Recovery of the dead body of the deceased on the pointation of accused, was doubtful---Material contradictions were in the statements of prosecution witnesses---Ocular testimony, was not corroborated by medical evidence---Prosecution, had failed to prove its case against accused persons, beyond reasonable doubt---Counsel for the complainant also could not point out any infirmity or illegality in the impugned judgment---Impugned judgment being well reasoned and well founded, no interference was warranted by Supreme Appellate Court---Appeal was dismissed, judgment by Chief Court was affirmed, in circumstances.
Amjad Hussain and Ali Nazar Khan Advocate-on-Record for Petitioner.
Advocate General, Gilgit-Baltistan along with Saeed Iqbal, Deputy Advocate General for pro forma Respondent.
Jahanzaib Khan and Johar Ali Khan Advocate-on-Record for Respondent.
2018 Y L R 1635
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim C.J. and Javed Iqbal, J
The STATE through National Accountability Bureau---Appellant
Versus
PERVAIZ IQBAL---Respondent
Cr. Appeal No.2 of 2016 in Crl. P.L.A. No. 8 of 2012, decided on 30th January, 2018.
National Accountability Ordinance (XVIII of 1999)---
----Ss. 9 & 10---Corruption and corrupt practices---Reappraisal of evidence---Trial Court convicted accused and sentenced him to 14 years' R.I. with fine of Rs.27,32,09,052---On filing appeal Chief Court reduced/modified the imprisonment of accused from 14 to 4 years, while fine was also reduced to Rs.500,000---No appellate forum being available in Gilgit-Baltistan at the relevant time accused filed appeal before Lahore High Court against the judgment of the Trial Court---High Court, dismissed his appeal for lack of jurisdiction---When appellate forum was established in Gligit Baltistan complainant, State and accused filed appeals before the said forum---Appeal of the petitioner/State was dismissed being barred by time and case of accused was remanded to the Trial Court for hearing afresh---Trial Court, on remand, acquitted accused from the charges---State being aggrieved, filed appeal before the Chief Court, which was dismissed---Validity---National Accountability Bureau could not point out any infirmity and illegality in the impugned order by the Chief Court---Order of the Chief Court being well reasoned and well founded, interference by Supreme Appellate Court, was not warranted---Appeal was dismissed and order passed of the Chief Court, was affirmed.
Additional Prosecutor General NAB along with Ali Nazar Khan Advocate-on-Record for Appellant.
Manzoor Ahmed for Respondent.
2018 Y L R 1845
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J
BULBUL AMAN SHAH---Petitioner
Versus
The STATE---Respondent
Cr. Appeal No. 23 of 2017 in Cr.P.L.A. No.16 of 2017, decided on 26th January, 2018.
Penal Code (XLV of 1860)---
----S. 302---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed arms---Reappraisal of evidence---Accused acquitted by the Trial Court was awarded death penalty by the Chief Court in appeal---Prosecution witnesses had directly charged accused for committing murder of the deceased---Widow of the deceased, who was eye-witness of the occurrence, had identified the accused by removing the veil by un-muffling him---Wife of deceased was also injured on resistance---Statement of the lady who was eye-witness, was also supported by the prosecution witnesses and defence, could not shatter her statement during cross-examination---Statements of other prosecution witnesses also corroborated the statement of widow---Medical evidence, the un-explained absconsion of accused for two years, recovery of the crime weapon on the pointation of accused in the presence of the witnesses and positive report of Ballistic Expert, were enough to connect accused with the commission of offence of the murder of the deceased---Accused had a long criminal history and there were 8 various FIRs registered against him---Accused, remained absonder for a period of two years, while using the CNIC of his real brother---Counsel for accused, could not point out any infirmity and illegality in the impugned judgment---Prosecution, had succeeded in proving its case against accused beyond any shadow of doubt---Chief Court, had rightly appreciated the prosecution evidence and material on record---Petition for leave to appeal, was converted into appeal, and was dismissed---Judgment of the Chief Court was affirmed and conviction recorded and sentences awarded to accused, were maintained.
2017 SCMR 486 and 2008 SCMR 6 distinguished.
Jahanzaib Khan, Advocate and Muhammad Abbas Khan Advocate-on-Record for Petitioner.
Amjad Husain, Advocate and Ali Nazar Khan Advocate-on-Record for the Complainant.
Advocate General along with Saeed Iqbal, Deputy Advocate General for Respondent.
2018 Y L R 1888
[Supreme Appellate Court Gilgit-Baltistan]
Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J
The STATE through Police Station City Gilgit---Petitioner
Versus
MUHAMMAD NADEEM---Respondent
Civil Appeal No.2 of 2018 in Cr.P.L.A. No.34 of 2017, heard on 4th April, 2018.
Penal Code (XLV of 1860)---
----Ss. 302, 324, 34 & 109---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, act of terrorism---Appeal against acquittal---Reappraisal of evidence---No evidence was available on record against respondent/ accused, except his absconsion, which could not be proved by the prosecution as intentional and deliberate---Name and address of accused was also wrongly mentioned in the warrants etc., due to which accused was not aware about the trial of the case and consequent sentence for imprisonment was awarded by the Trial Court---No charge was framed by the Trial Court after the arrest of accused---Judgment of the Trial Court was passed in absentia, which was violative of Fundamental Rights of accused---Chief Court had rightly set aside the judgment of the Trial Court---No indulgence was warranted by the Supreme Appellate Court---Petition for leave to appeal was converted into appeal and was dismissed---Impugned judgment passed by Chief Court was maintained, in circumstances.
The Advocate General for Petitioner.
Jahanzaib Advocate for Respondent.
2018 Y L R 117
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
MEHBOOB ALAM---Petitioner
Versus
The STATE---Respondent
Cr. Misc. 212 of 2016, decided on 3rd January, 2017.
(a) Criminal Procedure Code (V of 1898)--
----S. 498---Penal Code (XLV of 1860), Ss. 353, 506(ii) & 186---Assault or criminal force to deter public servant from discharge of his duty, criminal intimidation, obstructing public servant in discharge of public functions---Ad-interim pre-arrest bail, confirmation of---Allegation against the accused petitioner was that he entered into the office of complainant, used filthy language and extended threats of dire consequences---All the sections imposed in the FIR were bail-able except S.506(ii), P.P.C., which required further inquiry---Contents of FIR did not disclose an offence under S. 506(ii), P.P.C. and insertion, of said section seemed to be mala fide on the part of police just to make the offence heinous---Pre-arrest bail granted to the accused earlier was confirmed in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail, grant of---Pre-requisites---Pre-arrest bail was an extraordinary concession, which could only be extended in very genuine and extraordinary circumstances---Pre-arrest bail could be granted if element of mala fide on the part of complainant was apparent on record; allegations levelled in the FIR did not appeal to a prudent mind and there had been some exaggeration of facts existed---No universal rule existed which could be followed blindly and each and every criminal case was to be decided according to its own peculiar circumstances and merits.
Muzaffar ud Din for Petitioner.
Raja Shakeel Ahmad and Attaullah for the Complainant.
Assistant. A.G. for the State.
2018 Y L R 146
[Gilgit-Baltistan Chief Court]
Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ
MUHAMMAD ISSA---Petitioner
Versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU NAB and another---Respondents
W.P. No.67 of 2016, decided on 6th December, 2016.
National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(i), (ii), (iv), (vi), (vii) & (xii)---Corruption and corrupt practices---Bail, refusal of---Accused was Cashier at a Bank and was responsible to collect cash from customers---Without the connivance of the accused it was not possible for superior officers to commit a crime, wherein a loss of about Rs.2.2 billion was caused to the government exchequer---Such was a big financial scam foundation of which was laid by the accused---Accused was, prima facie, linked with the offence and extraordinary relief of bail could not be granted to him which was otherwise barred by S. 9(b) of National Accountability Ordinance, 1999---Petition for bail was dismissed being meritless.
Muhammad Saleem Khan for Petitioner.
Muhammad Amin, Special Prosecutor for NAB.
2018 Y L R 201
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam, J
ISFANDIYAR---Petitioner
Versus
The STATE---Respondent
Cr. Revision No.13 of 2015, decided on 22nd December, 2016.
Criminal Procedure Code (V of 1898)---
----Ss. 561-A & 439---Penal Code (XLV of 1860), Ss. 406, 409, 420 & 427---Criminal breach of trust, criminal breach of trust by public servant, or by banker, cheating and dishonestly inducing delivery of property, mischief---Setting aside the order for grant of bail by the Trial Court---Revision before Chief Court---Scope---Accused-petitioner was charged for the offences under Ss. 406, 409, 420 & 427 Penal Code, 1860---Admittedly, soon after chalking of FIR, police concerned initiated investigation proceedings---Accused-petitioner moved a petition for bail before arrest, which was allowed and later on confirmed; in the meantime, police submitted challan of the case before (the then) committal Magistrate, who sent the same to the Trial Court---Trial Court issued non-bailable warrants of arrest for production of the accused-petitioner after cancellation of pre-arrest bail facility granted to him---Admittedly bail before arrest was granted to an accused only enabling him to appear before the Trial Court as and when required---Trial Court had every power to cancel bail facility to the accused-petitioner as and when felt need of the same---Record showed that accused-petitioner had successfully attempted to complex the situation and had delayed the trial proceedings of the case, as admittedly he never appeared in the Trial Court after grant of bail before arrest or after cancellation of the same---Said circumstances showed mala fides on the part of the accused-petitioner as he could conveniently approach the Trial Court with a fresh bail petition even after his arrest but he opted to move the Chief Court---Circumstances established that revision petition was baseless, groundless and based on mala fides on the part of the accused-petitioner, thus dismissed accordingly.
Johar Ali Khan for Petitioner.
2018 Y L R 321
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
ANWAR KHAN and 3 others---Petitioners
Versus
The STATE---Respondent
Cr. Misc. 113 of 2016, decided on 29th August, 2016.
Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), Ss. 489-B & 489-C---Using as genuine, forged and counterfeit currency notes and possession of forged and counterfeit currency notes---Bail, refusal of---Prosecution story was that the accused persons were arrested with a huge quantity of forged currency notes---Accused were named in the FIR---Forged and counterfeit currency notes were recovered from possession of accused persons---Said forged currency notes were sent to the Bank for expert opinion and same were certified as "forged"---Accused were involved in an offence of heinous nature, which was hit by the prohibitory clause of S. 497, Cr.P.C.---Act of accused related to an offence against society---Grant or refusal of bail was a discretion but in such like offences, which effected the society, the discretion would be exercised with an extra care and caution and with some restraint---In the presence of available material, like statement of prosecution witnesses recorded under S. 161 Cr.P.C., recovery of forged currency notes and expert opinion of the Bank, there existed a prima facie case against the accused persons---Bail was refused in circumstances.
PLD 1995 SC 34; 2000 MLD 1056; Rashid v. The State 2000 PCr.LJ 594; Mumtaz Hussain v. The State 2000 PCr.LJ 834 and Zafar Iqbal v. State PLD 1993 Pesh. 104 ref.
Zia-ur-Rehman and Arif Nazir for Petitioners.
Malik Sher Baz, Dy. A.G. for the State.
2018 Y L R 442
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam, J
HAZRAT KHAN---Appellant
Versus
MOHAMMAD GHULAM ABBAS---Respondent
Civil First Appeal No.50 of 2014, decided on 30th September, 2015.
Civil Procedure Code (V of 1908)---
----O. XX, R. 5---Decision on each issue---Scope---Plaintiff had disclosed cause of action for the suit---Failure of plaintiff for not disclosing the cause of action would entail rejection of plaint and not dismissal of suit---Trial Court was bound to record its findings on all the issues instead of basing on any one of the issues---Impugned order was bad in the eye of law---Impugned judgment and decree were set aside---Case was remanded to the Trial Court with the direction to resume the trial from the stage where it was given up---Appeal was allowed in circumstances.
Mohammad Hussain Shehzad and Latif Shah for Appellant.
2018 Y L R 733
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
Mst. KAUSAR---Petitioner
Versus
The STATE---Respondent
Cr. Misc. No.151 of 2016, decided on 24th October, 2016.
Criminal Procedure Code (V of 1898)---
----Ss.497 & 498---Penal Code (XLV of 1860), Ss. 468, 471, 496-A & 496-B---Forgery for purpose of cheating, using as genuine a forged document, enticing or taking away or detaining with criminal intent a woman, fornication---Bail, grant of--All the accused booked in the case were admitted to bail but present petitioner was not released from custody due to condition that surety must be her husband, father, mother, brother or sister---Held, that such condition was harsh and not justified which deprived the lady to get her release---Condition was not workable as none of the above mentioned persons came forward for her release---Case for removal of condition or modification was made out---Petition for bail was allowed accordingly.
Petitioner in custody present.
Dy.A.G. for the State.
Ghulam Nabi SHO/IO also present.
2018 Y L R 752
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
ISSA KHAN---Petitioner
Versus
The STATE---Respondent
Cr. Misc. No.136 of 2016, decided on 27th October, 2016.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Allegation against the accused was that he committed murder of real brother of complainant---Challan of the case had been submitted in the court---Charge against the accused had been framed but prosecution witnesses had not appeared since last two years---Record had showed that case was fixed for evidence over more than thirty dates of hearing but on consecutive twenty four dates of hearing, prosecution witnesses were absent and did not attend the court despite the process of attachment of their properties---Court had failed to follow the procedure for execution of summonses/warrants, which had been provided in Chapter VI (sections 68 to 93-c) Cr.P.C---Long detention of the accused was due to fault of prosecution for not producing the witnesses in the court for the disposal of case---Accused was therefore, allowed bail in circumstances.
Nadeen Ahmed for Petitioner
Malik Sher Baz, Dy. A.G. for the State.
2018 Y L R 889
[Gilgit-Baltistan Chief Court]
Before Wazir Shakeel Ahmad, C.J. and Malik Haq Nawaz, J
GHULAM HAIDER---Appellant
Versus
The STATE---Respondent
Cr. Appeal No.30 of 2013, decided on 25th October, 2016.
Arms Ordinance (XX of 1965) ---
---S. 13---Anti-Terrorism Act (XXVII of 1997), S. 25---Possession of arm without license---Rifle was recovered from accused which was owned by an absconding accused---Accused was booked for offence under S. 13 of Arms Ordinance, 1965 and convicted by Anti-Terrorism Court---Validity---Proceedings undertaken by Anti-Terrorism Court under S. 13 of Arms Ordinance, 1965 were unwarranted and conviction was also illegally awarded to accused---Case was remanded to the court of competent jurisdiction (Judicial Magistrate) for trial.
Amjad Hussain for Appellant.
Dy. A.G. for the State.
2018 Y L R 919
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam, J
SHAMREZ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.39 of 2015, decided on 1st April, 2016.
Penal Code (XLV of 1860)---
----S. 381-A---Theft of a motorcycle---Appreciation of evidence---Benefit of doubt---Registration number and chasis number of the motorcycle in question, were different from the numbers written in the recovery memo---Real owner of stolen motorcycle, having not been established, Police was bound to correct its direction of investigation---Case against accused being full of doubt, its benefit was given to accused---Accused was acquitted of the charges levelled against him, in circumstances.
Johar Ali for Appellant.
Deputy Advocate-General for the Respondent/State.
2018 Y L R 995
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
MUHAMMAD SHAFI---Appellant
Versus
ANIMULLAH and 5 others---Respondents
Criminal Appeal No.36 of 2016, decided on 5th October, 2016.
(a) Penal Code (XLV of 1860)---
----Ss. 500, 506, 147, 427 & 337-A---Defamation, criminal intimidation, rioting, mischief, causing hurt---Appreciation of evidence---Contradictions and improvements had been made by prosecution witnesses at trial---Allegations against accused was that he had trespassed the land owned by the complainant, damaged the structure thereon and extended threats of dire consequences to the complainant--- Validity--- Material contradictions in the statements of the prosecution witnesses were found and their statements were not only at variance but also mutually destructive---Prosecution witnesses in order to bring their case in line with the prosecution story, had tried to make improvements, which had shattered their veracity---Once the court come to the conclusion that some prosecution witnesses had made deliberate and dishonest improvements, evidence of said witnesses was not liable to be relied upon except for exceptional reasons---Such circumstances created inherent doubts, benefit of which was to be resolved in favour of accused---Appeal was dismissed.
(b) Criminal trial---
----Benefit of doubt---Scope---If a single circumstance was available, which created doubt and touched the very root of the case same would be sufficient to extend benefit of doubt to the accused, as the accused was always presumed to be innocent till proved guilty by the court of competent jurisdiction, after trial.
(c) Criminal trial---
---Findings of Trial Court---Scope---Findings of the court were always given due weight, until and unless, gross mis-reading or non-reading of evidence were found on the part of Trial Court.
(d) Criminal trial---
----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any reasonable doubt---Concession of doubt if any, was sole right of accused, which was to be extended in favour of accused not as a matter of grace, rather as a matter of right.
Abdul Karim for Appellant.
Sherbaz Ali for Respondents.
Malik Sherbaz Khan Dy.A.G. for the State.
2018 Y L R 1229
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
DIRECTOR GENERAL GILGIT-BALTISTAN SCOUT through S.D.O. Gilgit-Balistan---Appellant
Versus
ALIF KHAN and another---Respondents
Cr. Appeal No.47 of 2016, decided on 8th November, 2016.
(a) Criminal Procedure Code (V of 1898)---
----S. 249-A---Power of Magistrate to acquit accused at any stage---Scope---Record showed that accused had submitted application for his acquittal under S.249-A, Cr.P.C, which was disposed of without affording an opportunity of hearing to the opposite side---Effect---Trial Court was vested with power under S.249-A, Cr.P.C. to acquit accused at any stage of proceedings even without recording any evidence if the charge against the accused was found groundless and there existed no probability of accused being convicted after full-fledged trial---Opportunity of hearing, in circumstances, was to be provided to the opposite side---Order passed without giving opportunity of hearing to the opposite party was void ab-intio---Such order could not be blessed under any law---Appeal was allowed in circumstances and case was remanded to the Trial Court for further proceedings.
(b) Void Order---
----Limitation--- Principle--- No limitation was fixed for filing an appeal/revision against a void order.
Abdul Khaliq for Appellant.
Malik Sher Baz, Dy. A.G. for the State.
2018 Y L R 1412
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz and Muhammad Umer, JJ
ADNAN HUSSAIN and another---Appellants
Versus
The STATE---Respondent
Cr. Appeal No.23 of 2016, decided on 27th September, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Accused were charged for the murder of the deceased---Ocular account was furnished by the complainant---Presence of complainant at the place of occurrence was not disputed but it was evident that he lodged FIR of the occurrence but did not either named the accused or even their features---No identification parade was held to identify the culprits after their arrest, which was mandatory requirement of law---Direct evidence of complainant, in circumstances, was of no avail to the prosecution---Circumstances established that prosecution had failed to establish its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
[Case law referred].
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--- Pakistan Arms Ordinance (XX of 1965), S. 13-D---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon---Appreciation of evidence---Circumstantial evidence---Accused were charged for the murder of the deceased---Circumstantial evidence was furnished by the brother of the deceased---Statement of said witness was recorded by the police under S.161, Cr.P.C. after three days of the occurrence---Statement of said witness could not be used as a circumstantial evidence as no recovery of motorbike of the accused or its further identification had been conducted through said witness.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--- Pakistan Arms Ordinance (XX of 1965), S. 13-D---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon---Appreciation of evidence---Confessional statement---Reliance---Accused were charged for the murder of the deceased---Record showed that confessional statement of the accused was recorded by the Police Officer on 4.2.2014, while the statement of co-accused was recorded by another Police Officer on 23.1.2015 and after recording of conditional confessional statements, they were committed to judicial custody---Confessional statements recorded by Police Officer would not be admissible in evidence---Statements of Investigating Officer and two Senior Police Officers were on record and completely silent to the effect that there existed some extra ordinary or compelling circumstances for non-production of the accused before a Judicial Magistrate---Such statements could not be termed as confessional statement of the accused.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 39---Confession of accused while in custody of police---Admissibility---Any statement made by accused while in police custody was not admissible in evidence
(e) Criminal trial---
----Abscondence of accused---Effect---Mere abscondence of the accused would not improve the prosecution case, if from other independent evidence, the prosecution case was not proved.
(f) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---30-bore pistol was allegedly recovered from accused on his pointation on 28.1.2014, while he was arrested on 10.1.2014---Investigating Officer submitted application to Judicial Magistrate to depute a Magistrate as the accused was willing to get the weapon of offence recovered---On the same day, Naib Tehsildar was deputed but recovery was effected on 28.1.2014 and no reasons had been shown for said delay---Recovery of crime weapon after eighteen days of arrest of accused raised a question mark regarding its genuineness---Five crime empties were recovered on 9.1.2014, the day of occurrence---Record showed that crime weapon was recovered on 28.1.2014 but the same were received in the office of Forensic Expert on 10.4,2014 and report was issued on 5.5.2014---Crime articles were sent to expert after inordinate delay of about three months twelve days and that too together, which created doubts about the authenticity of the report.
(g) Criminal trial---
----Recovery of different crime articles on different dates but sent together to expert---Scope---If the crime empties and weapon of offence were recovered on different dates but sent together to the expert---Positive reports of said articles would be seen with suspicion.
[Case law referred].
(h) Criminal trial---
----Evidence---Tainted evidence---Scope---One tainted piece of evidence could not corroborate another tainted piece of evidence.
(i) Criminal trial---
----Benefit of doubt---Principle---Single circumstance which created a reasonable doubt in a prudent mind, would be sufficient to bless accused with the benefit of doubt.
[Case law referred].
Munir Ahmed, Amjad Hussain and Imtiaz Hussain for Appellants.
Malik Sher Baz, Dy.A.G. for the State.
Jahanzeb Khan for the Complainant.
2018 Y L R 1531
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam, J
ALL RESIDENTS OF MOUZA SIKSA, CHORBAT, TEHSIL KHAPLU, DISTRICT GHANCHE through Syed Mohammad Kazim and others---Petitioners
Versus
ALL RESIDENTS OF MOUZA PION, CHORBAT, TEHSIL KHAPLU, DISTRICT GHANCHE through Mohammad Ali and 2 others---Respondents
Civil Revision No.5 of 2008, decided on 5th October, 2015.
Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Scope---Disputed water channel was meant for a new village which could only be developed by the government---New village could be developed through a proper scheme and that also after determining the rights of the people of the contesting parties to such lands---Water channel being natural resource was state property and both the parties had limited rights of watering their lands from the said channel---Impugned judgments and decrees passed by the courts below were result of mis-reading of evidence---Revision was disposed of according.
Mohammad Issa for Petitioner No.1.
Deputy Advocate General for Petitioner No.II (1 to 7).
2018 Y L R 1662
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
WASEEM ABBAS---Petitioner
Versus
The STATE---Respondent
Cr.Misc. No. 189 of 2016, decided on 8th August, 2016.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Bail, refusal of---First Information Report, in the present case, prima facie laid the foundation of a cold blooded callous murder against accused, which bereaved his sister of her shelter, robbed his nephews of all their innocent dreams---Motive of the occurrence was, that about nine years ago the nikah of deceased was performed with the sister of accused, but Rukhsati did not take place---Deceased, brought his wife to his house without consent of her parents, which was a cause of annoyance in the minds of his in-laws and accused and his father were extending threats of killing the deceased---Such could be a strong motive behind, but even then accused could not win any favour from the court---Motive of the case, was not a reason rather a mockery of sanctity of human life and relations---Judicial discretion, would run counter to the relief of bail in such like cases---Bail application of accused, was dismissed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Bail---Further inquiry---Principles---Accused, desirous of getting himself enlarged on bail, should, in all possibility draw his case within the ambit of S.497(2), Cr.P.C.; in such a way, which could drop an inkling that the correction of the offence and offender was one which required "further inquiry" and it was only after that when discretion of court would come into play---Even a matter of pure discretion was to be resolved in such a manner which should depict the drift of discretion in a judicious manner, strengthened by the mortar of good conscience and fair play---Discretion although seemed unfettered, but it was not unbridled at all since the same could not be exercised in oblivion to the nature, intensity, impact and the possible after-shocks of the offence.
Amjad Hussain for Petitioner.
Malik Sherbaz, Dy. A.G. for the State.
2018 Y L R 1692
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam, J
ALI SHAH and 2 others---Petitioners
Versus
REHBAR HASSAN---Respondent
Civil Revision No.68 of 2015, decided on 30th September, 2016.
Qanun-e-Shahadat (10 of 1984)---
----Arts. 17, 71, 79 & 100---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and possession---Claim of share of common landed property of mothers of contesting parties devolved from their maternal grandfather---Defendants claimed right over suit property on the basis of gift deed,an old document---Proof of private (old) document---Scope---Petitioners/defendants contended that mother of plaintiff/ respondent in her lifetime gave her share to her sister/mother of the defendant through gift deed which document was not challenged in any court---Plaintiff/ respondent contended that alleged gift deed was never a gift deed even in its form and that after demise of his mother, defendant took possession of whole of suit property---Validity---Suit property was undisputedly in ownership of real mother of plaintiff, once it was admitted, the petitioners/ defendants were duty bound to prove that the same came in their possession as a result of a valid gift as averred in their written statement---Burden of proof shifted to petitioners/defendants in the light of averments of parawise written statement---Counsel for petitioners/defendants had conceded that burden of proof was shifted to the defendants, so, the sole question for determination was whether there was sufficient evidence in proof of the alleged transfer of suit property to the petitioner through a valid gift---Perusal of gift deed exhibited by defendants showed that word hibbah had not been used therein---Exhibited document was written in Persian and was a private document---Petitioners/defendants were legally bound to prove the said document in strict accordance with the relevant provisions of Qanun-e-Shahadat, 1984 governing proof of private document---Exhibited document contained names of the marginal witnesses thereto as well as the name of scribe of the same, but neither contained any signature of the marginal witnesses thereto nor the signature of the scribe---Article 79 read with Art. 17(2) of Qanun-e-Shahadat, 1984, governed the procedure of proof of a document similar to that of exhibited document---In case of non-availability of witnesses to a document, proviso to Art. 71 of Qanun-e-Shahadat, 1984 was attracted---Petitioners/defendants did not adduce any evidence in the light of said provisions of law, therefore, failed to prove the exhibited document---Petitioners had produced two witnesses who had stated with reference to what they had heard from a person who was not a marginal witness, such witness was not convincing---Impugned judgment of first Appellate Court was not result of any misreading of evidence, nor that court committed any other material irregularity in coming to the conclusion reflected in the impugned judgment---Revision was dismissed accordingly.
Haji Mirza Ali for Petitioners.
2018 Y L R 1916
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
ZAMEER KHAN---Petitioner
Versus
The STATE---Respondent
Criminal Appeal No.47 of 2010, decided on 4th November, 2016.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 427 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, mischief, common intention, possessing unlicensed arms---Bail, refusal of---Prosecution story was that accused committed murder of two persons by opening fire shots with lethal arms---Accused was directly charged in the FIR for opening fire shots on both the deceased---Presence of accused had been shown in the site plan---Eye-witnesses had fully implicated the accused for commission of offence---Weapon of offence had been recovered from the possession of accused---Prima facie case was made out against the accused and he was not entitled for concession of bail---Accused was refused bail accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principle---Court, at bail stage, could not travel beyond the scope of tentative assessment of evidence available with the prosecution.
Abdul Khaliq for Petitioner.
Malik Sher Baz, Dy. A.-G. for the State.
2018 Y L R 1948
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam and Yar Muhammad, JJ
PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 4 others---Appellants
Versus
KAMOUS KHAN and 57 others---Respondents
C.F.A. No.32 of 2015, decided on 9th June, 2016.
Civil Procedure Code (V of 1908)---
----O. VIII, R. 10---Written statement, filing of---Scope---Defendants (Government department) failed to submit written statement and their defense was struck off---Contention of defendants was that delay in filing the written statement was due to official procedure---Validity---Defendants appeared before the Trial Court on 07-04-2015 and Trial Court gave adjournments for filing written statement till 26-06-2015---Defendants obtained more than two months period which was ample to file written statement---Such kind of attitude was against the mandatory provision of Civil Procedure Code, 1908---Trial Court had rightly taken the impugned proceedings---Defendants were afforded another chance for filing of written statement by the Chief Court subject to prior deposit of Rs. 10,000/- as costs before the Trial Court---Chief Court observed that if the defendants again failed to deposit the costs, Trial Court should assume trial of the case in the light of impugned order---Appeal was allowed accordingly.
Assistant Advocate General for Appellants.
Abdul Khaliq for Respondents.
2018 Y L R 2034
[Gilgit-Baltistan Chief Court]
Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ
SANAULLAH---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.46 of 2014, decided on 18th April, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 337, 341 & 34---Qatl-i-amd, hurt, wrongful restraint, common intention---Appreciation of evidence---Eye-witnesses remained consistent almost on all the vital points of occurrence and not a single suggestion had been put to these prosecution witnesses regarding their presence at the place of occurrence or the manner of occurrence---Mere relationship of witnesses was no ground to discard their evidence, however, court could ask for corroboration if there were lacunae in prosecution evidence---No previous enmity existed between the parties and the occurrence was a sudden affair in which deceased lost his life---Narration contained in FIR had corroborated the statements of eye-witnesses---Cause of death had not been disputed by the defence---Investigating Officer had exhibited the injury sheet and deposed in court accordingly; even otherwise medical evidence was only an expert opinion which could not always be accepted with mathematical precision and alternatively its absence would not affect the merits of the case if the evidence was straight-forward and reliable---Accused was also directly charged in the FIR---Proclamation under S.204, Cr.P.C. was issued against accused and his co-accused but they went underground and were arrested after one and a half year and such long abscondance remained unexplained---Abscondance of an accused could not remedy the defects in the prosecution case neither it was necessarily indicative of guilt, however, but long and unjustified abscondance without any explanation could be taken as a corroboratory evidence---Accused had rightly been convicted by the Trial Court---Appeal was dismissed being meritless.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art.17---Testimony of related witness---Scope---Mere relationship of witness was no ground to discard his evidence, however, court could ask for corroboration if there were lacunae in prosecution evidence.
(c) Criminal trial---
----Medical Evidence---Scope---Medical evidence was only an expert opinion which could not always be accepted with mathematical precision and alternatively its absence would not affect the merits of the case if the evidence was straight-forward and reliable.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 87---Abscondance of accused---Effect---Abscondance of accused could never remedy the defects of prosecution case neither it was necessarily indicative of guilt, however, long and unjustified abscondance without any explanation could be taken as a corroboratory evidence.
Ali Khan v. The State 1980 SCMR 474 rel.
Jehanzeb Khan for Appellant.
Malik Sherbaz, Dy. Advocate General for the State.
Malik Kifayat-ur-Rehman for the Complainant.
2018 Y L R 2072
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz, J
Mst. EZAT SULTANA---Petitioner
Versus
The STATE---Respondents
Criminal Miscellaneous No.52 of 2018, decided on 12th April, 2018.
Criminal Procedure Code (V of 1898)---
----Ss. 497(1), 157 & 164--- Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention ---Post arrest bail, refusal of---Accused, a female---Concession of bail to a female---Scope---Confessional statement of accused---Effect---First Information Report was lodged with the delay of 6 days and there was no eye witness of the occurrence ---Petitioner contended that being female she was entitled to concession of bail under S.497(1), Cr.P.C.---Prosecution contended that death of deceased lady was earlier considered accidental and FIR was not lodged but later on police started proceedings under S.157, Cr.P.C., on getting information regarding suspicious death of deceased---Postmortem conducted after exhumation divulged that the death was caused due to violence---Confessional statements of petitioner and her co-accused recorded under S. 164, Cr.P.C, were inculpatory and weapon of offence was also recovered on her pointation in presence of witnesses---Petitioner though a female, but the discretion in such like cases could not be exercised in favour of female, who had so actively participated in the crime and had taken the life of an innocent person just to save herself from exposure to public about her illicit relation with co-accused---Sufficient incriminating material was available on record, which did not entitle her to concession of bail---Bail was refused to the petitioner, in circumstances.
Islam-ud-Din for Petitioner.
Deputy Advocate General for the State.
Mrs. Afsana Jabeen, IO/SHO Women Police Station Hunza in person.
2018 Y L R 2304
[Gilgit-Baltistan Chief Court]
Before Muhammad Alam and Malik Haq Nawaz, JJ
SHARIF AHMAD---Appellant
Versus
MUHAMMAD BASHIR and 4 others---Respondents
C.F.A. No.14 of 2016, decided on 27th February, 2017.
Islamic law---
----Pre-emption, right of---Prior right---Scope---Trial Court did not refer to any evidence of the parties while recording the findings---Land in question was adjacent to the lands of plaintiff, and was path way to his land---Plaintiff had a prior right of purchase of the land as compared to any other---Findings recorded by the Trial Court were based on mere conjectures---Plaintiff had established his case and was entitled to the decree for pre-emption---Impugned findings recorded by the Trial Court were set aside and suit was decreed throughout---Appeal was allowed in circumstances.
Sharif Ahmad in person along with Amjad Hussain for Appellants.
Manzoor Ahmad for Respondent No.1.
2018 Y L R 2317
[Gilgit-Baltistan Chief Court]
Before Muhammad Umer and Ali Baig, JJ
ZAMEER ABBAS---Petitioner
Versus
The STATE through Prosecutor General NAB and 2 others---Respondents
W.P. No.87 of 2018, decided on 7th June, 2018.
National Accountability Ordinance (XVIII of 1999)---
----Ss. 9(a)(iv)(vi) & (b) & 16(a)---Writ petition---Bail, grant of---Second application for bail---Fresh ground, absence of---Effect---Petitioner was government servant and was arrested by National Accountability Bureau on allegations of embezzling huge funds causing loss to the national exchequer---Petitioner was allowed bail by the Chief Court but same was cancelled by the Supreme Appellate Court---Petitioner filed second bail application on ground of delay in conclusion of case within thirty days---Validity---Ground of delay in conclusion of trial within thirty days was already taken in the previous petition and petitioner could not repeat the same in fresh bail petition---Writ petition was dismissed in circumstances.
Shoukat Ali for Petitioner.
Amin Khan Special Prosecutor NAB for Respondents.
2018 Y L R 2379
[Gilgit-Baltistan Chief Court]
Before Ali Baig, J
SHAH ALAM---Petitioner
Versus
SHUKOOR KHAN and 3 others---Respondents
Civil Revisions Nos. 51 and 59 of 2012, decided on 10th July, 2018.
Civil Procedure Code (V of 1908)---
----Ss. 115, 151 & 153 & O. XLI, R. 20---Revision without impleading necessary party--- Maintainability--- Limitation---Seeking impleadment of legal representative in the revision petition---Scope---Suit was decreed against which appeal was filed---Appellant during pendency of appeal died but his legal heir was not impleaded as appellant---Plea of petitioner was that he moved application for inserting name of legal representative of appellant but Appellate Court failed to insert his name---Revision had been filed by a dead person without impleadment of his legal representative--- Validity---Petitioner had been participating in the proceedings before Appellate Court as well as before High Court---Application for impleadment of legal representative had been filed after the lapse of three years and six months of filing of revision petition---No application for condonation of delay for impleading the legal representative of appellant had been moved---Omission to implead such necessary party had rendered the revision petition incompetent---Revision petition had been filed on behalf of dead person which was not maintainable---Revision was dismissed in circumstances. [pp. 2382, 2383] A, B & C
2011 GBLR 299; 2001 MLD 1964; PLD 1982 SC 46 and 1990 MLD 1874 ref.
Malik Shafqat Wali for Petitioner (in C. Rev. No.51 of 2012).
Johar Ali for Respondents (in C. Rev. No.51 of 2012).
Johar Ali for Petitioners (in C.Rev. No.59 of 2012).
Malik Shafqat Wali for Respondents (in C.Rev. No.59 of 2012).
2018 Y L R 2417
[Gilgit-Baltistan Chief Court]
Before Ali Baig, J
PROVINCIAL GOVERNMENT through Chief Secretary Gilgit Baltistan and 18 others---Petitioners
Versus
MUHAMMAD JAMIL and 3 others---Respondents
Civil Revision No.24 of 2018, decided on 19th July, 2018.
Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Interim injunction, grant of---Land allotted to plaintiff/respondent was again allotted to Government Departments---Plaintiff/respondent had filed certified copy of allotment order; copy of delivery receipt; Sajara Khasra and order of Tehsildar along with plaint---Disputed land was prima facie allotted in favour of plaintiff/respondent by the competent authority and revenue field staff had also handed over the possession of the suit land---Plaintiff/respondent succeeded to make out a prima facie arguable case and balance of convenience was in his favour---If temporary injunction was not granted to the plaintiff/respondent, he would suffer irreparable loss and injury---Revision petition against the interim relief was dismissed in circumstances.
Mir Muhammad Addl. Advocate General for Petitioners.
Mir Zeeshan Akhlaq for Respondent No.1.
Malik Shafqat Wali for Respondents Nos.2.
Ali Khan for Respondents Nos. 3 and 4.
2018 Y L R 2501
[Gilgit-Baltistan Chief Court]
Before Ali Baig, J
TAHIR IQBAL and 6 others---Petitioners
Versus
The STATE---Respondent
Cr. Misc. No.3 of 2018, decided on 2nd February, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 365, 368, 341 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Kidnapping and abducting with intent to secretly and wrongfully confine person, wrongfully concealing or keeping in confinement kidnapped or abducted person, wrongful restraint, common intention, act of terrorism---Bail, grant of---Compromise---Prosecution case was that the accused and co-accused persons kidnapped the complainant and his daughter---Motive behind the occurrence was stated to be that Nikah of daughter of complainant was performed with the accused but later on, due to some difference between the couple, the relationship was broken---Complainant/ abductee appeared before the court and got recorded his statement to the effect that on the intervention of Jirga members, he and his wife did not want to proceed with the case against the accused persons and they had no objection if the accused persons were released on bail---Admittedly, offences under Ss. 365-B & 368, P.P.C. and under Ss. 6 & 7 Anti-Terrorism Act, 1997 were not compoundable, however, fact remained that parties had voluntarily compounded the matter and the complainant party had forgiven the accused persons and they had no objection if the accused/petitioners were released on bail---Compromise was a good ground for release of the accused/petitioners on bail---Where the complainant party was no longer willing to prosecute the matter any further, Court could not compel it to do so---Accused were admitted to bail in circumstances.
2004 PCr.LJ 490; 1995 MLD 1826; 1997 PCr.LJ 193; 1997 SCMR 1411 and 1999 PCr.LJ 1107 rel.
Burhan Wali for Petitioners.
Dy. Advocate General for the State.
2018 Y L R 2552
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz and Ali Baig, JJ
MUHAMMAD ALI---Appellant
Versus
MUHAMMAD YAQOOB and another---Respondents
C.F.A. No.3 of 2015, decided on 2nd July, 2018.
Islamic law---
----Pre-emption suit---Shia fiqah---Shia fiqah does not recognize the pre-emption right on the ground of vicinage or participation in the appendages of suit land.
Kamal Hussain for Appellant.
Naseem Akhatar Mian for Respondents.
2018 Y L R 2565
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz and Ali Baig, JJ
AHLIYAN-E-DODISHAL through Representatives---Petitioners
Versus
The COLLECTOR LAND ACQUISITION and 9 others---Respondents
Civil Revision No.39 of 2018, decided on 10th July, 2018.
Civil Procedure Code (V of 1908)---
----O.I, R.10(4)---Amendment in plaint pursuant to permission to add parties as respondents---Scope---Court could allow only such amendments as were necessitated by the addition or striking out of parties could not permit amendments which would add or alter the nature of suit.
1989 SCMR 476 ref.
Muhammad Hussain Shehzad and Johar Ali for Petitioners.
Munir Ahmed and Akhtar Ali for Respondents Nos. 4 to 8.
Addl. Advocate General for Respondents Nos. 1 and 9.
2018 Y L R 2583
[Gilgit-Baltistan Chief Court]
Before Ali Baig, J
RESIDENTS OF MAUZA MAKHOR through Representatives---Petitioners
Versus
RESIDENTS OF MOUZA BIAMA KHOR and 6 others---Respondents
Civil Revision No.139 of 2017, decided on 29th March, 2018.
Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42, 54 & 56 (d)---Construction of Power-House by the Government---Suit for declaration and permanent injunction--- Temporary injunction, grant of---Requirements---Plaintiff to succeed in obtaining order of injunction was required to demonstrate a good prima facie case, balance of convenience and irreparable loss and injury if injunction was not granted---Injunction could not be granted unless all the said three conditions for grant of injunction existed---Defendants had assured/undertaken in their written statement that they would not violate the water rights of the plaintiffs---Plaintiffs, in circumstances, had no prima facie arguable case and balance of convenience in their favour---Plaintiffs, in circumstances, would not suffer irreparable loss if temporary injunction was not granted in their favour---Injunction could not be granted on presumptions / apprehensions--- Even otherwise temporary injunction could not be granted to interfere with the public duties of Federal or Provincial Government---Defendants were not supposed to disturb/violate the water rights of plaintiffs after completion of construction of Power-House project---Chief Court observed that if defendants violated/interfered in the established water rights of plaintiffs after construction of Power-House, they would be at liberty to file a fresh application for grant of temporary injunction or suit against the defendants---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Revision was dismissed in circumstances.
Shafqat Wali for Petitioners.
Additional Advocate General for Respondents Nos. 2 to 6.
Johar Ali for Respondents Nos. 1 and 6.
2018 Y L R 2695
[Gilgit-Baltistan Chief Court]
Before Malik Haq Nawaz and Muhammad Umar, JJ
The STATE through ANF Gilgit---Appellant
Versus
NAZIR REHMAT and another---Respondents
Criminal Appeal No. 24 of 2017, decided on 30th August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 265-E---Plea of guilt---Sentence---Scope---Court under S. 265-E, Cr.P.C. was required to explain the charge against the accused---If the accused pleaded guilty, the court was to record the plea and could convict the accused.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Petition for enhancement of sentence---One kilograms charas was recovered from the possession of each of the accused---Accused persons pleaded guilty to the charge---Trial Court accepted their plea of guilt and convicted them and awarded the punishment of the period already undergone with a fine of Rs. 30,000/----Prosecution had alleged that a lenient view had been taken, which would encourage the likeminded criminals---Validity---Record showed that accused persons pleaded guilty at the time of framing of charge---Courts had always taken a lenient view in such like cases, harsh view would not advance the cause of justice---Appeal was dismissed in circumstances.
Manzoor Hussain Special Prosecutor for ANF Gilgit-Baltistan for Appellant.
Imtiaz Hussain for Respondents/ Convicts.
2018 Y L R 78
[High Court (AJ&K)]
Before M. Tabassum Aftab Alvi, C J
MUHAMMAD AYYAZ and 5 others---Petitioners
Versus
STATION HOUSE OFFICER, POLICE STATION TRARKHAL and 2 others---Respondents
Writ Petition No.1089 of 2012, decided on 12th September, 2017.
Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Writ petition for quashing of FIR against petitioners---Contention of petitioners was that FIR was lodged after delay of seven months---Validity---Facts incorporated in the FIR needed detailed investigation---Ordinarily FIR could not be quashed in exercise of writ jurisdiction as after registration of a cognizable case, the police had to collect the material, start investigation and submit report to the Magistrate as to whether an offence had been committed or not---If the police reached to the conclusion that from the material collected, the accused was connected with the crime then challan was to be submitted before the competent court of law---If the police had found that there was no evidence, police was to make request in its report under S. 173, Cr.P.C. to the Magistrate for cancellation of the case---FIR, in the present case, showed that petitioners had assured to respondent that her photograph was deleted from their mobile phone, however, after her marriage by blackmailing, said photograph was sent to her husband, consequently she was divorced---FIR was thereafter registered, hence, delay was properly explained---Writ petition seeking quashment of FIR was dismissed, in circumstances.
Khadam Hussain v. Abdul Basit and 6 others 2002 MLD 1250 and Shan Muhammad v. Mohammad Younis and 4 others 2014 SCR 183 rel.
Ahmed Saeed v. The State and another 1996 SCMR 186; Raza Ali Mustafa v. Deputy Inspector General Police, Hazara Division, Abbottabad and 7 others 2001 YLR 531 and Muhammad Afzal and others v. Haji Ahmed and others 2005 PCr.LJ 979 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Quashing of FIR---Writ jurisdiction of the High Court---Scope---Ordinarily, FIR could not be quashed in exercise of writ jurisdiction.
Ashgar Ali Malik for Petitioners.
Nemo for Respondents Nos. 1 and 3.
2018 Y L R 952
[High Court (AJ&K)]
Before Azhar Saleem Babar, J
Mst. MUKAMAL JAN---Appellant
Versus
ALI ASGHAR and 9 others---Respondents
Civil Appeal No.141 of 2014, decided on 11th January, 2018.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 12---Suit for declaration on the basis of agreement to sell---Nature---Unregistered document--- Scope---Contention of plaintiff was that he was owner in possession of suit land and defendants even after execution of agreement to sell refused to execute sale deed---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff had prayed for a declaratory decree with regard to ownership of land on the basis of agreement to sell---Plaintiff at the same time had requested for a decree for specific performance of contract---Agreement to sell was not a title document---Suit could be filed on the basis of oral sale---Agreement whether oral or written could be validly executed---Unregistered document could be executed between the parties and implemented by the Court---Executor of agreement to sell had already received consideration amount---Agreement to sell had been proved as per law---Executor of agreement to sell was bound to register sale deed in favour of plaintiff to the extent of his share---Impugned decree was modified to the extent that executor would execute sale deed in favour of plaintiff to the extent of his share failing which sale deed be registered through Nazir of the Court---Judgment and decree of the appellate court was modified in circumstances.
2007 SCR 310; 1994 CLC 1811; 1999 MLD 824 and 2007 PCr.LJ 246 ref.
2007 MLD 1722 rel.
Mir Gohar Rehman for Appellant.
2018 Y L R 1151
[High Court (AJ&K)]
Before Azhar Saleem Babar, J
SHOUKAT KHAN & COMPANY through Managing Director---Petitioner
Versus
CHIEF ENGINEER (RECONSTRUCTION) EEAP AJK and 4 others---Respondents
Writ Petition No.301 of 2017, decided on 9th January, 2018.
(a) Arbitration Act (X of 1940)---
----S. 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Maintainability---Contract for construction of road contractor---Contractor seeking direction for release of security amount---Contractual liability---Effect---Contention of petitioner was that he had completed construction work but security amount had not been released to him---Validity---Dispute between the parties had already been referred to the arbitrator---Petitioner could not claim that he had completed construction of work to the satisfaction of the authorities---Release of security amount was not a part of claim before the arbitrator but encashment of same would depend upon resolution of dispute between the parties---Contractual liability could not be resolved through writ jurisdiction--- Release of security amount would depend on completion of work---Petitioner filed application under S. 14 of Arbitration Act, 1940 which was dismissed by the Trial Court and appeal was still sub-judice before the High Court---Dispute with regard to completion of work had not yet been finalized---Petitioner could not claim that he had successfully completed the work assigned to him---Security amount could not be released in favour of petitioner until resolution of dispute indicated in the arbitrator's award---Writ petition was dismissed in circumstances.
PLD 1998 SC (AJ&K) 7; PLD 1979 (AJ&K) 61; PLD 2004 SC (AJ&K) 30; 1999 MLD 33; PLD 2003 SC 191 and 2003 CLD 1 ref.
PLD 2012 Lah. 52 and Shaukat Ali's case 2001 CLC 694 and 2001 YLR 734 rel.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Contractual liability---Writ petition--- Maintainability--- Contractual liability could not be resolved through writ jurisdiction.
Barrister Humayun Nawaz Khan for Petitioner.
2018 Y L R 1276
[High Court (AJ&K)]
Before M. Tabassum Aftab Alvi, C.J.
ABDULLAH---Petitioner
Versus
BOARD OF REVENUE, AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR and 15 others---Respondents
Writ Petition No.186 of 2008, decided on 18th January, 2018.
(a) Azad Jammu and Kashmir Board of Revenue Act, 1993---
----S. 7---Mutation, attestation of---Revision before Board of Revenue---Limitation---Second revision before Full Board of Revenue---Competency---Delay in seeking remedy before wrong forum, condonation of---Assistant Collector sanctioned inheritance mutation against which revision was filed before Settlement Commissioner---Settlement Commissioner set aside the order of Assistant Collector with the direction to sanction fresh mutation---Appeal was filed before Board of Revenue against fresh mutation sanctioned by the Assistant Collector which was treated as revision---Board of Revenue dismissed the said revision and petitioner instituted civil suit which was also dismissed---Petitioner, after dismissal of suit filed second revision before Full Board of Revenue which was dismissed being time-barred---Validity---Ninety days period had been provided for filing revision petition before Board of Revenue---Petitioner chose wrong forum and after dismissal of suit filed second revision petition before Board of Revenue---If litigant spent time in pursuing a remedy under a mistaken advice, period spent by him would go waste and no consideration could be shown in such a situation---Any person aggrieved by an order made or a decree passed by Member Board of Revenue could apply to the Full Board of Revenue for revision of such order or decree---If Full Board of Revenue considered that there were sufficient reasons then said order or decree could be revised---Second revision before Board of Revenue was not competent---Revision was rightly dismissed by the Full Board of Revenue being time-barred---No illegality or irregularity had been committed by the Board of Revenue dismissing revision petition of the petitioner---Writ petition was dismissed in circumstances.
Muhammad Abdul Rehman Abbasi v. Azad Government and 7 others 2015 SCR 1083; AJ&K Govt. and 4 others v. Dr. Muhammad Amin 2014 SCR 258 and Chairman Development Authority, Muzaffarabad and another v. Sajjad Ahmed Sheikh and 2 others 2004 PLC (C.S.) 1095 distinguished.
Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Masud Ahmad and others v. United Bank Limited 1992 SCR 98 and Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others 1998 MLD 416 rel.
(b) Azad Jammu and Kashmir Board of Revenue Act, 1993---
----S. 7(3)---Revision before Board of Revenue---Limitation---Ninety days period had been provided for filing revision petition before Board of Revenue.
Muzaffar Hussain Mughal for Petitioner.
Nemo for Respondents Nos. 1 to 4 and 10 to 16.
2018 Y L R 1404
[High Court (AJ&K)]
Before Muhammad Sheraz Kayani, J
Engineer IMRAN YASIN SHEIKH---Petitioner
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Azad Government, Civil Secretariat, Muzaffarabad and 14 others---Respondents
Writ Petition No.2599 of 2016, decided on 15th February, 2018.
Pakistan Engineering Council Act (V of 1976)---
----S. 20---Pakistan Engineering Council Conduct and Practice of Consulting Engineers, Bye-laws, 1986, R. 8(3)---Consultant engineer---Allegation of misconduct---Blacklisting of firm---Opportunity of hearing---Scope---Audi alteram partem, principle of---Applicability---Petitioner being consultant engineer was blacklisted on the allegation of mismanagement and violation of prevailing rules and procedure during execution of the project---Contention of petitioner was that no opportunity of hearing was afforded before passing of impugned order---Validity---Petitioner was not liable to be blacklisted without referring the matter to the Pakistan Engineering Council and penalty of removal from the list---Basic right for earning livelihood could not be snatched without adopting the legal course---Nobody could be condemned unheard---Presence of Project Director of the project did not mean that the petitioner had been afforded opportunity of defense and proving his innocence---Petitioner must have been heard prior to passing the adverse order---Impugned order being hit by the principle of audi alteram partem was not sustainable---Authorities would be at liberty to proceed against the petitioner after affording reasonable opportunity of hearing to him---Impugned notification was declared as null and void and non-existing---Writ petition was allowed in circumstances.
Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others 2005 PLC (C.S.) 1074 and Taskeen Naz v. Fehmida Begum and 11 others 2016 SCR 1436 rel.
Abdul Rashid Abbasi for Petitioner.
Shaikh Mushtaq Ahmed and Ch. Muhammad Ismail for Respondents.
2018 Y L R 1717
[High Court (AJ&K)]
Before Sadaqat Hussain Raja, J
Syed AGHA HUSSAIN SHAH---Petitioner
Versus
REGISTRAR/DISTRICT JUDGE, MUZAFFARABAD and 3 others---Respondents
Writ Petition No.1262 of 2013, decided on 13th March, 2018.
Registration Act (XVI of 1908)---
----S. 68---Registration of document by Sub-Registrar---Cancellation---Scope---Assistant Commissioner (Sub-Registrar) entered gift deed in the relevant Register---Petitioner moved application before Registrar/District Judge for cancellation of the same but same was dismissed---Validity---Gift deed had been entered in the relevant Register---Petitioner had approached the Civil Court for cancellation of said gift deed---Sub-Registrar had registered the gift deed after detailed inquiry---Complaint filed by the petitioner in this regard before Anti-corruption Police, had been consigned to record being frivolous one---Registrar, after registration of document had no authority to cancel the same---Registrar had only powers to issue directions to the Sub-Registrar with regard to his ministerial functions and duties---No illegality had been committed while passing the impugned order---Proper forum for cancellation of gift deed was Civil Court---Writ petition being not maintainable was dismissed in circumstances.
AIR 1933 Lahore 786 and AIR 1955 Madhya Bharat 205 rel.
Syed Asim Masood Gillani for Petitioner.
Nemo for Respondent No.1.
2018 Y L R 2047
[High Court (AJ&K)]
Before Mohammad Sheraz Kiani, J
JAVAID IQBAL---Appellant
Versus
COLLECTOR LAND ACQUISITION, MIRPUR and 2 others---Respondents
Civil Appeal No.65 of 2011, decided on 16th February, 2018.
Land Acquisition Act (I of 1894)---
----Ss. 18 & 4---Reference to court---Market value---Determination of---Procedure---Referee Judge reduced compensation amount from Rs. 2,75,000/- to Rs. 1,25,000/- per kanal---Validity---Land under reference was situated alongside the road and shops were constructed thereupon---When the land was being used for commercial or residential purpose then its price would be determined on the basis of its potential use on the principle of demand and supply---Referee Judge could have determined the compensation amount of such land on the basis of sale deed of land in the area executed after one year from issuance of notification under S.4 of Land Acquisition Act, 1894---Land measuring one kanal situated in the same village was sold for Rs.10,40,000/- after issuance of notification under S.4 of Land Acquisition Act, 1894---General trend of escalation of prices of landed property was to be kept in view---Referee Judge had discarded the said sale deed on flimsy ground which was an un-rebutted document---Respondents could not bring anything on record which might strengthen the fact that land sold through said sale deed was superior to the land under reference---Any evidence which remained un-rebutted should be deemed as admitted one---If twenty percent i.e. Rs. 20,8000/- was deducted from Rs. 10,40,000/- per kanal then market price of land in question would be not less than 8,00,000/- per kanal which was just and fair compensation for the landowner---When land owner had proved his case by producing all the oral and documentary evidence, Referee Judge was not justified to reduce the compensation amount---Compensation amount of land under reference was enhanced of Rs. 8,00,000/- per kanal along with 15% compulsory acquisition charges irrespective of kind of the land---Impugned judgment and decree passed by the Trial Court was set aside---Authorities were directed to make payment to the landowner within a reasonable time---Appeal was allowed accordingly.
2009 CLC 1378; 2009 CLC 741 and 2014 MLD 179 ref.
PLD 2010 SC (AJ&K) 37; 2013 SCR 1224; PLD 2002 SC 25 and Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 rel.
Mohammad Farooq Minhas for Appellant.
2018 Y L R 2507
[High Court (AJ&K)]
Before Muhammad Sheraz Kayani, J
FAIZ ALAM and 10 others---Appellants
Versus
MOHAMMAD NASEER and 3 others---Respondents
Civil Appeal No.4 of 2013, decided on 12th April, 2018.
(a) Specific Relief Act (I of 1877)---
----S. 12---Registration Act (XVI of 1908), S. 17---Suit for specific performance of contract---Agreement to sell in favour of defendant was also executed on the basis of which decree was passed by the civil Court---Contention of plaintiff was that said sale agreement was a forged document---Suit was dismissed concurrently--- Validity--- Factum of execution of agreement to sell in favour of defendant had been established---Agreement to sell was not required to be registered---Even an oral contract could be made and enforced---Decree for specific performance had been passed by the Court of competent jurisdiction in favour of defendant---Suit land was in the possession of defendant---No mis-reading or non-reading of evidence had been pointed out in the findings recorded by the Courts below---Appeal was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S. 100---Second appeal---Scope---Concurrent findings recorded by the Courts below could not be interfered with until and unless some mis-reading or non-reading of record or some departure from law was established.
Akhtar Hussain and others v. Raja Mohammad Zarin Khan 1993 SCR 114 and Adalat Khan v. Fazal Hussain and another 1995 SCR 151 rel.
Sardar Shamshad Hussain for Appellants.
2018 Y L R 29
[Islamabad]
Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ
Ch. NASEER AHMED and another---Appellants
Versus
RENT CONTROLLER and others---Respondents
I.C.A. No.171 of 2017, decided on 24th July, 2017.
Islamabad Rent Restriction Ordinance (IV of 2001)---
----S.17---Arbitration Act (X of 1940), S.34---Ejectment of tenant---Arbitration clause in the lease agreement---Effect---Tenants filed application for stay of proceedings on the ground that tenancy agreement contained arbitration clause in it---Validity---Rent Controller alone had jurisdiction with regard to eviction of tenant from rented premises to which provisions of Islamabad Rent Restriction Ordinance, 2001 were applicable---Question of eviction could not be gone into in arbitration proceedings---Even if there was an arbitration clause in lease agreement, petition seeking eviction of tenant from rented premises was maintainable---Clause in lease agreement providing for a reference of disputes between landlord and tenant to be referred to arbitration, was not valid insofar as the question of eviction was concerned and to that extent agreement was not valid---Proceedings before Rent Controller were special proceedings, whereas arbitration proceedings were termed as general proceedings and in such circumstances, special proceedings would prevail over the general proceedings---Rent Controller had correctly exercised his jurisdiction by holding in effect that jurisdiction of Rent Controller was not ousted due to presence of arbitration clause in lease agreement between the parties---Landlord could not invoke jurisdiction of any other forum other than that of Rent Controller for filing an eviction petition against tenants---High Court upheld concurrent orders passed by Single Judge of High Court and Rent Controller---Intra-court appeal was dismissed in circumstances.
Case-law referred.
Shehryar Tariq for Appellants.
Shahzada Naeem Bokhari and Ijaz Janjua for Respondents Nos.2 to 5.
2018 Y L R 104
[Islamabad]
Before Aamer Farooq, J
Mrs. SUMAIRA MALIK and another---Petitioners
Versus
ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and others---Respondents
W.P. No.4815 of 2016, decided on 7th July, 2017.
Punjab Local Government Act (XVIII of 2013)---
----Ss. 38, 55 & 57---Punjab Local Government (Conduct of Elections) Rules, 2013, Rr. 36 & 78---Election Commission, jurisdiction of---Disputed question of fact--- Determination--- Petitioners were elected Chairman and Vice-Chairman of District Council but their election was declared void by Election Commission---Validity---Controversy raised in the petition by respondents before Election Commission, was such which could not have been resolved without recording of evidence---Election Commission had no jurisdiction / power to enter in any detailed inquiry and to record evidence, where there were disputed questions of facts---Nature of power which Election Commission had under R. 78 of Punjab Local Government (Conduct of Elections) Rules, 2013, was executive in nature and was granted by legislature to ensure that elections were conducted in just, fair and free manner in accordance with provision of Punjab Local Government Act, 2013 and Punjab Local Government (Conduct of Elections) Rules, 2013---Legislature had given power to adjudicate election disputes to Election Tribunal only---Such intention of the Legislature was stated in S.38 of Punjab Local Government Act, 2013, and provided that election to the office of Local Government could only be called in question by an election petition---Election Commission, in elections held under Punjab Local Government Act, 2013 and Punjab Local Government (Conduct of Elections) Rules, 2013, had no adjudication power even of summary nature in-as-much as no provision similar to S.103AA of Representation of People Act, 1976, existed in either of the two enactments---High Court set aside the order passed by Election Commission whereby election of petitioners was declared void---Constitutional petition was allowed in circumstances.
Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others 1999 SCMR 1123; Chaudhry Perwaiz Akhtar and another v. District Returning Officer, Layyah and 5 others PLD 2006 Lah. 29; Muhammad Arif Muhammad Hassani v. Amanullah and others 2016 SCMR 1332; Syed Hafeez-ud-Din v. Abdul Razzaq and others PLD 2016 Supreme Court 79; Abdul Rasheed and another v. Election Appellate Authority and others 2016 SCMR 1215; Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge, Tehsil Liaquatpur District Rahim Yar Khan and others 2016 SCMR 893; Muhammad Mamoon Tarar v. Election Commission of Pakistan and others 2016 CLC 1708 and The Province of Sindh through Chief Secretary and others v. Muttahida Qaumi Movement (MQM) and others Civil Appeals Nos.760 to 765 of 2016 ref.
Syed Pervaiz Zahoor, Mubeen-ud-Din Qazi and Jameel Hussain Qureshi for Petitioners.
Kh. Haris Ahmad and Taimoor Aslam Khan for Respondents.
Afnan Karim Kundi, Additional Attorney General.
Malik Mujtaba Ahmad, ADG (Legal), ECP.
2018 Y L R 164
[Islamabad]
Before Aamer Farooq, J
Messrs AIR CIRO through Senior Partner---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary Aviation Division, Islamabad and 5 others---Respondents
Writ Petition No.1853 of 2017, decided on 19th May, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Territorial jurisdiction---Scope---Contract, assailing of---Dispute was with regard to awarding of contract to respondent for handling outbound excess, unaccompanied baggage and establishing baggage wrapping facility at the Airport---Validity---Dominant object of the petition was to have the letter in question set aside issued by the Airport Manager---Civil Aviation Authority was under the control of Federal Government and High Court could exercise jurisdiction pertaining to the matters and affairs of that Authority as the letter intended to be set aside was issued by the Airport Manager at Lahore therefore, Islamabad High Court lacked territorial jurisdiction in the matter---Constitutional petition was dismissed in circumstances.
Fast Developers International (Pvt.) Limited v. Pakistan Telecommuni-cation Authority (Civil Petitions Nos.1071 and 1072 of 2016); Khalid Habib v. Pakistan Telecommunication Corporation Ltd. and others 2014 PLC (C.S.) 203; Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary, Interior and 3 others 2016 CLC 1534; Gen. (Rtd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; PLD 1997 SC 334, 1998 SCMR 2389 and Messrs Sethi and Sethi Sons v. Federation of Pakistan through Secretary Finance and others 2012 PTD 1869 ref.
Mohammad Shoaib Shaheen for Petitioner.
2018 Y L R 222
[Islamabad]
Before Mohsin Akhtar Kayani, J
MOAZZAM HABIB and others---Petitioners
Versus
FEDERATION OF PAKISTAN and others---Respondents
Writ Petition No.2535 of 2016, decided on 12th July, 2017.
(a) Constitution of Pakistan---
----Art. 199---Judicial review---Scope---High Court has jurisdiction under Art. 199 of the Constitution to examine validity of any Act of Parliament or delegated legislation including notifications---If any law, act or notification violates any provision of the Constitution, including Fundamental Rights, same can be struck down---Law must not be declared unconstitutional unless statute is placed next to the Constitution and no way can be found in reconciling the two there is presumption in favour of constitutionality---If there are two interpretations, one in favour of constitutionality must be adopted.
Case law referred.
(b) Constitution of Pakistan---
----Art.199---Mandamus, writ of---Scope---If there is any illegality or error on the part of any public office in relation to affairs of the State, writ of Mandamus can be issued to the concerned office.
Case law referred.
(c) General Clauses Act (X of 1897)---
----S. 21---Statutory Regulatory Order (S.R.O.), amendment of---Power of amendment in SRO is available to Federal Government in terms of S. 21 of General Clauses Act, 1897.
Case law referred.
(d) Constitution of Pakistan---
----Art. 25---Equal protection of law, right of---Reasonable classification---Principle of intelligible differentia---Scope---Equal protection of law as envisaged under Art. 25 of the Constitution does not imply that every citizen is treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed are to be treated alike---Such reasonable classification is permitted and was to be on intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out---Differentia must have a rational nexus to objects sought to be achieved by such classification.
(e) Islamabad Rent Restriction Ordinance (IV of 2001)---
----S. 1(2)---Islamabad Capital Territory (Zoning) Regulations, 1992, Cl. 5(H)---Capital Development Authority Ordinance (XXIII of 1960), Ss. 11 & 51---Notification SRO No. 83(k)/2002, dated 01-08-2002---Notification, vires of---Petitioners were advocates and assailed Notification S.R.O. No. 83(k)/2002 dated 01-08-2002 not including Zone-V of Islamabad Capital Territory into urban area---Plea raised by petitioners was that excluding Zone-V of Islamabad Capital Territory had made Islamabad Rent Restriction Ordinance, 2001 inapplicable---Validity---Federal Government had issued Notification SRO No. 83(k)/2002 dated 01-08-2002 wherein urban areas of Islamabad were notified for purpose of Islamabad Rent Restriction Ordinance, 2001---Notification in question was neither issued on justified reasons nor structured on intelligible differentia and same was discriminatory as it had excluded urban areas of Islamabad in violation of rights of citizens of Islamabad Capital Territory---High Court directed the Federal Government to amend Notification SRO No. 83(k)/2002, dated 01-08-2002 for inclusion of areas specified in Zone-V of Islamabad Capital Territory (Zoning) Regulations, 1992 for purpose of application of Islamabad Rent Restriction Ordinance, 2001---High Court further directed to declare areas in question as urban areas by Capital Development Authority with approval of Federal Government in terms of Ss. 11 & 51 of Capital Development Authority Ordinance, 1960---Constitutional petition was allowed in circumstances.
Case law referred.
Moazzam Habib Petitioner No.1 in person.
Muhammad Ilyas Sheikh and Ms. Robina Shaheen for Petitioner No.3.
Saleem Ullah Khan for Applicant (in C.M. No.659 of 2017).
Noubahar Ali for Respondent No.3.
Ch. Muhammad Haseeb, DAG.
2018 Y L R 363
[Islamabad]
Before Aamer Farooq, J
BBC PAKISTAN (PVT.) LTD. and another---Petitioners
Versus
MASUD ALAM (deceased) through Legal Heirs and others---Respondents
Civil Revision No.400 of 2015, decided on 4th April, 2016.
Civil Procedure Code (V of 1908)---
----O.XXVI, R.1---Appointment of local commission to record evidence---Scope---Petitioner contended that for security concerns local commission be appointed to record evidence at the expense of the petitioner---Respondent contended that there was no justification for recording of evidence through local commission---Validity---Trial Court dismissed application for appointment of local commission for recording of evidence on the basis that it was important that the demeanour of the witness should be seen and his precise answer to the question put to him should be heard by the court and opposing party should have fullest opportunity of cross-examining him---Appointment of local commission was to be allowed when witness was suffering from sickness or infirmity unable to attend the court---In order to expedite the matter for an early disposal of the suit, local commissioner may be appointed to save the time---Appointment of local commission was not likely to cause any prejudice to opposing party in any way---If a witness is resident of foreign country, or, even a distant place in Pakistan, the normal mode of examination would be by commission, unless the Court came to conclusion that the objects of justice could not be satisfied by examination on commission---Reasoning that prevailed with Trial Court in dismissing the application for recording of evidence through local commission was not valid, therefore, the jurisdiction had been exercised with material irregularity---Recording of evidence through commission was a practice which was in vogue and was not alien to dispensation of justice---Revision was allowed accordingly.
Iqbal M. Hamzah v. Gillette Pakistan Ltd. 2011 YLR 277; Khawaja Feroz v. Muhammad Dawood and others PLD 2008 Kar. 239 and Black Sea Shipping Company and another v. Polskie Linie Oceaniczne (Polish Ocean Lines) Gdynia and 2 others 1987 CLC 2314 ref.
Archibald Campbell Mackillop v. Tobacco Manufacturers (India) Ltd. and another PLD 1951 Sindh 22 distinguished.
Syed Hassan Ali Raza for Petitioners.
2018 Y L R 412
[Islamabad]
Before Athar Minallah, J
HAKAS (PVT.) LTD. through Managing Director---Petitioner
Versus
PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman and 2 others---Respondents
Writ Petition No.1379 of 2016, heard on 16th November, 2016.
(a) Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Tender for construction work---Petitioner had participated in the bidding process in response to bids invited through advertisements published in newspapers---Technical bid of petitioner had been rejected and it was no more entitled to participate in the remaining process---Disputed question of fact could not be resolved while exercising constitutional jurisdiction---Contract had been awarded to the successful bidder---No legal infirmity had been pointed out in the impugned order---Constitutional petition was not maintainable which was dismissed in circumstances.
[Case-law referred].
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact could not be resolved while exercising constitutional jurisdiction.
[Case-law referred].
Babar Ali Khan for Petitioner.
Barrister Suleman Khan for Respondents.
2018 Y L R 621
[Islamabd]
Before Athar Minallah and Mohsin Akhtar Kayani, JJ
MEHMOOD AZAM and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos.127, 133 and Criminal Revision No.75 of 2016, decided on 29th May, 2017.
(a) Criminal trial---
----Evidence---Last seen evidence---Evidentiary value---Evidence of last seen has a corroborative value if other evidence connected the accused with the commission of offence---Evidence of last seen could only be considered to the extent of last seen evidence and not beyond.
[Case-law referred].
(b) Penal Code (XLV of 1860)---
----Ss. 302, 365, 377, 511, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, un-natural offence, attempting to commit offences punishable with imprisonment for life or a shorter term, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the son of complainant was gone with the accused persons but did not turn up---Accused persons wanted to commit sodomy with the son of complainant and on his refusal, they murdered his son through firing and dead body was wrapped in a bedding and had thrown the body in jungle---Incident was confirmed through one of the nominated accused in the present case, who narrated the entire story in his own complaint, so another FIR was registered---Witness, who claimed to be the eye-witness of the alleged incident of murder, had appeared before the Trial Court and got recorded his statement---Statement of said witness showed that three accused persons had pointed their pistol at him and deceased, whereas two accused persons had clutched them for the purpose of sodomy and meanwhile, two accused persons had fired at him and deceased, as a result of said firing, one fire hit on the chest of deceased and he fell down---Later on, accused persons took him in a vehicle at about 11.30 p.m. to the jungle area, where, two accused started firing at him, three bullets hit him, due to which, he fell down on the ground, and accused persons fled away---Testimony of the said witness was silent about the injury details through Medico Legal Report, nor the prosecution ever produced such Medico Legal Report on record through which one could assume that said witness was injured with three firearm injuries---Statement of said witness showed that he was injured at two different occasions, firstly at the time of murder of the deceased and secondly when accused persons fired at him in jungle---Statement of eye-witness implied that he received four firearm injuries on his body but no such evidence was available on record to prove the same---Eye-witness stated that deceased had received two firearm injuries upon his body whereas the medical evidence as well as statement of Medical Officer had contradicted that very fact, as report clearly revealed only one firearm injury on the deceased---Contradiction existed in medical and ocular account, therefore, statement of eye-witness was not believable---Said witness had not referred his own FIR in his statement, therefore, the testimony of said witness required corroboration from an independent source---Sodomy was alleged motive for the offence, but there was no evidence in the entire case regarding any attempt to commit sodomy with deceased or eye-witness, except his own statement, which had not been corroborated through independent source---No evidence was available on record which confirmed that deceased had ever been abducted by force or there was any element of secret confinement of deceased as the dead body of deceased was recovered from open place---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(c) Criminal Procedure Code (V of 1898)---
----S. 154---First Information Report---Evidentiary value---First Information Report was not a substantive piece of evidence and same could be used to set law in motion---First Information Report constituted corroborative evidence and its corroborative value was attached with the probative value of its maker.
[Case-law referred].
(d) Criminal Procedure Code (V of 1898)---
----S. 154---First information report---Scope---Mere production of a copy of FIR could not properly fall within the definition of "first information report" without criminal complaint; therefore it was to be excluded from consideration by the court.
[Case-law referred].
(e) Criminal Procedure Code (V of 1898)---
----S. 154---First information report---Counter FIR---Scope---When accused had made a counter FIR and admitted his presence at the scene of occurrence, the same could be used against him but not against the co-accused---Recording of another FIR in respect of same occurrence was not contemplated by law when the occurrence was based upon one transaction.
[Case-law referred].
(f) Penal Code (XLV of 1860)---
----Ss. 302, 365, 377, 511, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, un-natural offence, attempting to commit offences punishable with imprisonment for life or a shorter terms, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Weapon of offence, (pistol) was recovered at the instance of accused but had not been matched with the fire empties of 30-bore pistol---Recovery, in circumstances, had no significance in the present case.
(g) Criminal trial---
----Benefit of doubt---Principle---If any doubt emerged on record same would be sufficient to extend the benefit to the accused.
[Case-law referred].
Raja Ikram Ameen Minhas and Muhammad Javaid Malik for Appellants (in Criminal Appeals Nos.127 and 133 of 2016).
Qamar Inayat Raja for the Complainant (in Criminal Appeals Nos.127 and 133 of 2016).
Yasir Barkat Ch. for the State Counsel (in Criminal Appeals Nos.127 and 133 of 2016).
Qamar Inayat Raja for Petitioner (in Criminal Revision No.75 of 2016).
Raja Ikram Ameen Minhas and Muhammad Javaid Malik for Respondents Nos.1 to 3 (in Criminal Revision No.75 of 2016).
Yasir Barkat Ch. for the State Counsel (in Criminal Revision No.75 of 2016).
2018 Y L R 703
[Islamabad]
Before Miangul Hassan Aurangzeb, J
Malik MUHAMMAD RAMZAN SABIR---Petitioner
Versus
Mst. SHAHINA AKHTAR and 2 others---Respondents
W.P. No.1273 of 2017, decided on 11th December, 2017.
Islamabad Rent Restriction Ordinance, (IV of 2001)---
----Ss. 10 & 17---Eviction petition---Default in monthly rent---Statutory increase in monthly rent---Scope---Expiry of the tenancy agreement---Scope---Non-mentioning of annual increase in rent in the tenancy agreement---Effect---Petitioner/tenant contended that Rent Controller had rightly dismissed eviction petition of the landlady as he had paid monthly rent regularly----Respondent/ landlady contended that Appellate Court had rightly allowed eviction of the tenant as tenant had failed to pay rent as per statutory provision of increase in rent annually---Validity---Record revealed that there was no provision in the lease agreement for such increase in the rent---Said lease agreement expired in June 2008 but tenant continued to occupy the rented premises and then after three months of date of expiry started sending monthly rent through cheques through the attorney of the landlady---Nothing was on record to show that the tenant had paid the rent of the said intervening period of three months---Tenant, since expiry of the tenancy period, was under obligation to increase the rent by 25% after every three years---Admittedly, tenant did not pay the rent along with the statutory increase of 25% in terms of S. 10 of the Islamabad Rent Restrictions Ordinance, 2001---Land lady, at no material stage, gave her consent to the tenant not to pay the rent with a statutory increase---Appellate Court had aptly relied on the tenant's testimony that he was not even aware that he was supposed to pay rent with a statutory increase of 25% after every three years---Appellate Court was also correct in holding the arrears of the rent becoming due as a result of the increase of rent under S. 10 of the Islamabad Rent Restriction Ordinance, 2001 was deemed to be rent due under S. 17(2)(i) of the Islamabad Rent Restrictions Ordinance, 2001---Appellate Court had rightly allowed eviction on the ground that the tenant had not paid rent with statutory increase----No illegality or infirmity having been noticed, constitutional petition was dismissed accordingly.
Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207; Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others 2012 SCMR 91; Pakistan Bait-ul-Mal v. Umar Mahmood Kasuri PLD 2008 Lah. 250 and Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19 ref.
Ch. Muhammad Tahir Mehmood for Petitioner.
Ms. Rakhshanda Yunus for Respondent No.1.
2018 Y L R 913
[Islamabad]
Before Mohsin Akhtar Kayani, J
Miss ROBINA TABUSAM---Petitioner
Versus
The STATE---Respondent
Crl. Misc. No.709/B of 2017, decided on 15th November, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 302 & 365---Qatl-i-amd after abduction---Bail, grant of---Delay in trial---Principle---Petitioner had been behind bars for 3 ½ years and delay was not occasioned due to act or omission of petitioner or any other person acting on her behalf---Accused was not directly nominated in FIR except she led recovery of dead body of deceased which was already in knowledge of investigating officer---Bail was allowed in circumstances.
Mehtab Ahmed v. The State and others 2015 YLR 1132; Zarina Bibi v. The State and another 2013 PCr.LJ 1031; Khalida Akram v. The State 2007 PCr.LJ 875; Mst. Zainab v. The State 1999 PCr.LJ 238; Razia Bibi v. The State and others 2011 YLR 1008; Niaz Ahmed Khan v. The State 2017 MLD 1013; Muhammad Umer v. The State 2016 YLR Note 88; Muhammad Ijaz Khan v. The State and another 2017 MLD 1357 and Muhammad Riaz and another v. The State 2016 PCr.LJ 1206 rel.
Muhammad Aslam Chaudhry for Petitioner.
Ch. Manzoor Ahmed Kamboh for Respondent No.2.
Sarfraz Ali Khan, State Counsel.
Ms. Saima Naqvi, State Counsel.
2018 Y L R 1002
[Islamabad]
Before Athar Minallah and Mohsin Akhtar Kayani, JJ
MUHAMMAD ARSHAD KIANI and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeal No.286, Jail Appeal No.47 and Murder Reference No.50-RWP of 2009, decided on 19th June, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused were charged for the murder of nephew of complainant---Prosecution had produced the last seen witnesses, a driver, uncle of the deceased/complainant and father of the deceased/witness---Prosecution witness, who was a taxi driver had stated that on 10.5.2008, at about 8/8.15 p.m., he along with deceased (taxi driver) and other drivers were standing in the market---Two men, a woman along with a minor girl aged 3/4 years, came there and had conversation with deceased, whereafter, deceased along with passengers proceeded to Chungi after informing the witness---Accused did not come back and on the next day, father of deceased inquired about his son and said witness told him that deceased left with passengers for Chungi---Said witness was also a witness of identification parade and joined the identification proceedings on 19.6.2008 in the jail premises where he identified the accused persons---Father of the deceased/witness had not stated the exact details, which were given by other witnesses---Complainant being uncle of the deceased had claimed to be a last seen witness but his entire testimony was silent about the evidence of last seen, so he did not fall within the category of last seen witness---Said witness had just identified the dead body of the deceased and nothing else---Record showed that said witnesses had never stated anything against the accused persons nor even justified the requirement of the last seen, therefore, their testimonies were not plausible to award capital punishment to the accused persons---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Criminal trial---
----Evidence---Last seen evidence---Evidentiary value---Evidence of last seen could only be considered to the extent of last seen evidence and not beyond.
Kaleem Ullah alias Bhola v. State 2017 PCr.LJ 586; Kabir Shah v. The State 2016 YLR 1291; Asif Shah v. State 2016 PCr.LJ Note 126; Abdul Ghafoor v. State 2016 PCr.LJ 1754; Imran Ishaque and others v. The State 2017 PCr.LJ 400 and Zafar Abbas v. The State 2010 SCMR 939 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Recovery of different articles from accused--- Reliance--- Scope---Allegedly, a mobile phone was recovered on the disclosure of accused---Recovery witness stated that he had associated the recovery proceedings of the mobile, however, he admitted that accused in his presence, never disclosed the recovery of mobile phone, which was allegedly snatched by him from the accused---Said witness stated that accused led them to the office situated at 1st floor of the building whereupon accused opened the door of the room, where an almirah was lying, which was unbolted by him and got recovered a bag, whereupon he opened up the bag and got recovered the mobile---Said witness had admitted during the course of cross-examination that he did not remember the total number of floors of the building from where the alleged recovery was effected---Witness admitted that the door of the room was not locked and no one was present in the room at the time of recovery and the almirah, from where mobile was recovered was not locked---Recovery witness had denied the specific disclosure and details in his examination-in-chief---Police official being recovery witness stated that he joined the investigation of the case at the time of arrest of the accused persons---During the personal search, different articles were recovered from accused, however nothing was recovered to connect the accused persons with the alleged crime---Weapon of offence (Churri) was recovered on the disclosure of female accused---Said witness stated that accused made disclosure and led police party to the building, from where he got recovered the mobile from the almirah, which was taken into possession by the Investigating Officer---Acquitted accused, during interrogation made disclosure that he purchased the car of deceased from accused persons---Investigating Officer had admitted that the date of recovery of the Churri was based upon clerical error---Investigating Officer had stated that on the disclosure of co-accused, weapon of offence (Churri) was recovered, which was wrapped in a polythene paper and recovered underneath two stones---Vehicle was recovered on the disclosure of acquitted accused, which was allegedly snatched from the deceased and claimed to be sold by the accused persons---Investigating Officer admitted that there were two persons present in the place, where accused met with only one and he admitted that both these persons were not the recovery witnesses of the mobile---No receipt of purchase of the mobile was produced by the complainant to establish the ownership of deceased with the said mobile---Investigating Officer neither mentioned the name of owner of the place of recovery, who was doing business of car dealing, in the column of witnesses nor even recorded his statement under S. 161, Cr.P.C.---Record transpired that recovery witnesses made serious discrepancies in the entire proceedings of the recovery and there were material contradictions in the name and place of the recovery, hence the entire recovery proceedings seemed to be artificial and unpersuasive---Investigating Officer took no pains to identify the International Mobile Equipment Identity (IEMI) number of the recovered mobile in order to connect it with deceased, hence it could be concluded that the recovered mobile was of an ordinary nature, which was easily available in the market and the same was not identified with reference to its International Mobile Equipment Identity (IEMI) number---Investigating Officer in such situation had withheld the best available evidence---Circumstances established that prosecution had failed to prove its case against the accused persons---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 392, 411 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Identification parade---Scope---Prosecution witness, who was also witness of last seen had appeared to verify the proceedings of the identification parade of the accused persons---Said witness had stated that he identified the lady passenger/accused before the Judicial Magistrate and also identified the male accused persons but gave no description of the lady---Record showed that witness had identified all the three accused but facts remained that witness never revealed the features of identity, age, heights, colour complexion, nature and dialect of their language---Judicial Magistrate, who supervised the identification parade, had not prepared any list of dummies with their parentage and occupation etc---Circumstances established that the entire proceedings of identification parade were just an exercise in futility.
Muhammad Ayaz and others v. The State 2011 SCMR 769; Khadim Hussain v. The State 1985 SCMR 721 and Ghulam Rasul and 3 others v. The State 1988 SCMR 557 rel.
(e) Criminal trial---
----Evidence---Corroboration---Principle---If one tainted piece of evidence was not connected with other piece of tainted evidence, the same could not be used to convict the accused, especially in the case pertaining to murder and dacoity.
Haider Mehmood Mirza, Ch. Muhammad Junaid Akhtar and Ms. Saira Khalid Rajput for Appellants.
Hafiz Kousar Hussain Gondal for the Complainant.
Yasir Barkat Ch. for the State.
2018 Y L R 1115
[Islamabad]
Before Athar Minallah and Mohsin Akhtar Kayani, JJ
MUHAMMAD SAEED and another---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No.154 of 2015, Jail Appeal No.153 of 2015, Criminal Revision No.23 of 2016 and Murder Reference No.14 of 2015, decided on 19th June, 2017.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 161 & 540---Examination of witness by police---Scope---Witness, whose statement had not been recorded by the Investigating Officer, would not be considered as worthy of credence, but the court was empowered to record the testimony of any person, whether his statement under S. 161, Cr.P.C. or 164, Cr.P.C. was recorded or not.
[Case-law referred].
(b) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence--- Recovery of weapon of offence--- Reliance--- Scope--- Record showed that on the disclosure of accused, Churri, weapon of offence, was recovered---Place of recovery was an open place and hundreds of people passed through the same---Official witness of recovery admitted that, weapon of offence was not mentioned as bloodstained in the memo of recovery---Investigating Officer had not asked anyone to be a witness in the recovery proceedings---Admittedly, witness had not mentioned the alleged churri as bloodstained in his statement under S. 161, Cr.P.C.---Recovery was disbelieved in circumstances.
[Case-law referred].
(c) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Mother of the deceased stated the motive to be that accused wanted to marry the deceased while she got married to the witness, but the alleged motive had not been proved independently by the witness---Husband of deceased though had stated that deceased told him that accused wanted to marry her but her brother and mother refused the said proposal---Said facts did not constitute a valid motive in such a manner, especially when it could not be corroborated through independent source that accused had approached the deceased for marriage---Sole statement of mother of deceased in that regard without independent corroboration could not be of any help to the prosecution case---Motive in the circumstances had not been proved by the prosecution.
(d) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account supported by medical evidence---Accused was charged for the murder of sister of complainant through Churri blows---No motive had been mentioned by the complainant against the accused in the FIR---Ocular account was furnished by complainant and the mother of the deceased---Facts remained that there was inconsistency between the FIR and statement of complainant---Complaint showed that the mother and sister of deceased came out after the complainant, but as per statement of mother of deceased, complainant emerged on the scene after the mother---Said inconsistency showed that the complainant had improved his statement from FIR, whereas he had only seen the accused in the street from his back, therefore, his statement to the extent of being wajtakar could be given consideration at that stage---Ocular account given by the mother of the deceased had gone un-rebutted---Accused had himself asked a specific question regarding the alleged occurrence from the mother of the deceased and in response to said question she narrated the actual event---Record showed that accused was nominated at the very first instance, even the FIR was promptly lodged---Statements of complainant and mother of the deceased proved to be consistent in that regard that deceased stated that accused had stabbed her---Statements of said witnesses were further confirmed through independent---Evidence of taxi driver, who had brought the injured lady in his taxi to the hospital---Circumstances and facts of the case had proved that the dying declaration of deceased with regards to details of injury, name and description of the accused had not been denied rather the entire cumulative facts demonstrated that the last words of deceased were based upon truth and nothing was concealed thereon---Statement of mother of deceased, who had seen the actual occurrence with her own eyes, corroborated the occurrence---Testimony of Medical Officer, who at first instance medically examined the deceased, showed that the time of death was 5.15 a.m. which occurred in Operation Theater during her treatment---Said facts had proved that deceased was brought to the hospital alive and it could safely be concluded that, approximately two hours of time was passed from incident till death, therefore, it could firmly be concluded that deceased had stated some facts about the alleged occurrence to her mother and brother in presence of witness/taxi driver, who were natural witnesses of the alleged crime---Prosecution, had not been able to prove motive and recovery of the crime weapon, which were mitigating circumstances for reduction of sentence---Sentence was reduced from death to imprisonment for life in circumstances.
[Case-law referred].
(e) Criminal trial---
----Witness---Minor contradictions in the statements of witnesses---Effect---Some discrepancies had been observed from the statement of witnesses, even otherwise all prosecution witnesses were admittedly uneducated, who were not aware of technical details of the case and minor contradictions were natural in their evidence, which stood ignored.
[Case-law referred].
(f) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Testimony of closely related witnesses---Reliance---Record showed that mother and brother of the deceased had given evidence against the accused---Effect---Mother and brother had blood relation with deceased, as such, they could be termed as interested witnesses---Fact remained that said witnesses had not given any inimical statement against the accused nor referred any enmity with the accused---Status of being interested witnesses or inimical witnesses in such a situation was proved and for that reason, their statements could be taken as credible as the same were duly corroborated through independent witness/taxi driver.
(g) Qanun-e-Shahadat (10 of 1984)---
----Arts.132 & 133---Cross-examination---Scope---Facts, which had not been cross-examined, would be considered to have been admitted.
(h) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence--- Substitution--- Principle---Substitution of single accused was a rare phenomenon, when the FIR had promptly been lodged and the statement of complainant had been considered to the extent that he had seen the accused from back in the street light, while running from the place of scene---Accused, in circumstances, was the one who committed the alleged crime.
Sabah Moh-ud-Din Khan for Appellants.
Talat Mahmood Zaidi for the Complainant.
Yasir Barkat Ch. for the State.
2018 Y L R 1450
[Islamabad]
Before Aamer Farooq, J
TUFAIL AHMED KHAN and others---Petitioners
Versus
The STATE and another---Respondents
Crl. Misc. No.109-B of 2018, decided on 22nd February, 2018.
Criminal Procedure Code (V of 1898)---
----Ss. 498 & 499---Pre-arrest bail, petition for---Accused were granted ad interim bail, subject to furnishing bail bonds in the sum of Rs.20,000 each with one surety each in the like amount---Accused persons despite lapse of almost two weeks, failed to comply with the said order of the court---Bail, would become operative when the surety would undertake to produce accused before the court or Police authorities at given time and place---Bail granting order would not become operative inasmuch as it was subject to furnishing of bail bonds and surety---No Robkar/certificate was issued by the court viz bail of accused persons---Police authorities arrested accused persons formally---Present petition was in the nature of bail before arrest and since accused persons had been arrested, though were produced in the court on the order of the court, had to apply for bail after arrest---Present petition had become infructuous and was accordingly disposed off.
Hakim Ali Zardari v. The State and another PLD 1998 SC 1; Khalil Ahmed Soomro and others v. The State PLD 2017 SC 730; Farhat Hussain Shah and another v. The State and others 2010 SCMR 1986; Muhammad Aslam v. State 2002 YLR 1341; Umar Hayat v. The State 1995 SCMR 1005; Muhammad Rafique v. The State 2007 YLR 985; Muhammad Amir v. The State 2007 MLD 1276; Gen. (R) Pervez Musharraf v. The State and another PLD 2013 Isl. 66 and Hakim Ali Zardari v. The State and another PLD 1998 SC 1 ref.
Sardar Muhammad Latif Khan Khosa and Malik Javed Iqbal Wains for Petitioners.
Syed Muhammad Ali Bukhari for Respondent No.2.
2018 Y L R 1785
[Islamabad]
Before Miangul Hassan Aurangzeb, J
SUNBIZ PRIVATE LIMITED (7 NEWS TV PAKISTAN) through Abbas Ali Khan---Appellant
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Information and 3 others---Respondents
F.A.O. No.146 of 2017, decided on 24th April, 2018.
(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---
----Ss. 20(c), 29(6), 30(1)(b) & 30-A--- Pakistan Electronic Media Regulatory Authority (Television Broadcast Stations Operations) Regulations, 2012, Regln. 18(c)--- Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010, R. 8(5)--- Imposition of penalty (fine)---Suspension of license---Recommendations of Council of Complaints--- Appellant was a licensed broadcasting Media house and Pakistan Electronic Media Regulatory Authority suspended its license for seven days--- Plea raised by appellant was that the penalty imposed was without giving any opportunity of hearing to it--- Contention of authorities was that PEMRA was empowered under law to suspend a license--- Validity--- Independent of any recommendations of Council of Complaints, Pakistan Electronic Media Regulatory Authority had the power under S.29(6) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, to impose fine of up to one million on a licencee who had contravened any of the provisions of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 or the Rules or Regulations made there-under---Fine under such provisions of law could not be imposed unless the licensee had been given a reasonable opportunity to show cause---No opportunity to show cause was given by Pakistan Electronic Media Regulatory Authority at no material stage, to appellant before imposing of fine---High Court declared that imposition of fine in question on appellant by the Authority was not pursuant to S.29(6) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Essential pre-requisite for exercise of powers conferred under S.30(1)(b) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, were not satisfied---High Court declared recommendations of Council of Complaints to suspend broadcast or CTV station without lawful authority, as the Council was not empowered by S.26(5) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---High Court set aside penalty imposed by the Authority to suspend appellant's license--- Appeal was allowed in circumstances.
Qaiser Javed Malik v. Pervaiz Hameed 2009 SCMR 846 ref.
(b) Interpretation of statutes---
---Redundancy--Applicability--Redundancy must not be unnecessarily attributed to Legislature---Provision of law is not to be interpreted in a manner which may render another provision as superfluous, redundant or nugatory.
(c) Interpretation of statutes---
----Subordinate and delegated legislation---Scope--- Rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of parent statute---Rules framed under statute cannot override provision of the statute under which they were framed and on which their very existence was dependent---Power to make subordinate legislation/rules/regulations is derived from enabling statute and the delegatee on whom such power is conferred has to act within the limits of authority conferred by the statute---Rules cannot be made to supplant the provisions of enabling statute but to supplement the same---Delegatee is not authorized to make a provision beyond the policy of the statute---Delegatee cannot override the statute either by exceeding the authority or by making provisions inconsistent with the statute---Rules made under a statute are treated for the purpose of construction as if they were in the enabling statute and are to be of the same effect as if contained in the statute--- Rules are to be consistent with the provisions of the statute and if a rule goes beyond what the statute contemplates, the rule must yield to the statute--- General power to make rules or regulations for carrying out or giving effect to the statue is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the statute--- Rule making authority cannot widen the purpose of statute or to add new and different means to carrying them out or to depart from or vary its terms.
National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Ltd. 2016 SCMR 550; Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); Suo Motu Case No.11 of 2011 (PLD 2014 SC 389); Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370; Mian Ziauddin v. Punjab Local Government 1985 SCMR 365; Professor Kazim Hussain v. Government of Pakistan PLD 2013 FSC 18; Independent Newspapers Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 2017 Lahore 289 and Malik Muhammad Din v. Trustees of the Port of Karachi PLD 1967 Kar. 191 rel.
Aasim Shafi for Appellant.
Ali Shah Gillani for Respondents Nos.2 and 4.
Mushtaq Ahmad Malik for Respondent No.3.
2018 Y L R 1891
[Islamabad]
Before Athar Minallah, J
Mst. FATIMA ALI and another---Petitioners
Versus
Mst. RUBINA EHTESHAM and 4 others---Respondents
W.P. No.2821 of 2017, decided on 18th December, 2017.
Guardians and Wards Act (VIII of 1890)---
----Ss. 25 & 12---Custody of minor---Visitation rights---Court premises as visitation place--- Scope--- Petitioner/ mother of the minor contended that there was apprehension that the minor would be taken out of the jurisdiction of Guardian Court as respondent/grandmother of minor resided abroad and respondent should be given opportunity of visitation within the court premises---Grandmother contended that she resided within territorial jurisdiction of the Guardian Court---Validity---Respondent was the paternal grandmother of minor while both father and grandfather of the minor had passed away---Depriving the grandmother from spending some time with her grandchild was not fair, while the custody remained with the mother---Grandmother resided within territorial jurisdiction of the court, so apprehension of the mother was misplaced---Guardian Court while taking welfare of the minor into consideration had rightly declined the suggestion of mother to allow visitation within the court premises---Court premises was neither an appropriate place for visitation nor it was appropriate to expose the child to its environment---No illegality or infirmity having been noticed in the impugned order, constitutional petition was dismissed accordingly.
Muhammad Waqas Malik for Petitioners.
Barrister Afzal Hussain and Arslan Binyamin Bhatti for Respondents.
2018 Y L R 2199
[Islamabad]
Before Miangul Hassan Aurangzeb, J
MUHAMMAD MOHSIN FAWAD---Petitioner
Versus
HINA TAYYABA KHALIL and another---Respondents
C.R. No.254 of 2016, decided on 16th April, 2018.
Family Courts Act (XXXV of 1964)---
----S. 13---Civil Procedure Code (V of 1908 ),O. XXI, Rr. 12 & 13---Maintenance allowance---Execution proceedings---Unpaid decree---Attachment of property to satisfy the decree---Scope---Objection raised by the surety regarding his liability---Scope---Terms of power of attorney----Scope--- Defendant / judgment-debtor lived abroad---Petitioner was brother of the judgment-debtor who being his special attorney, kept on appearing in the Courts and also presented his property as his surety in the proceedings before the Appellate Court---Respondents contended that Executing Court had rightly ordered to attach the property of the petitioner to satisfy the decree on their application under O. XXI, R. 12, C.P.C.---Petitioner contended that his objection petition was wrongly dismissed as he was already absolved of his surety bond furnished before Appellate Court as the same was in connection with decree passed by the Family Court in the year 2010 whereas Appellate Court had remanded the matter to the Family Court---Validity---Property sought to be attached by the respondents was, admittedly, owned by the petitioner, and not by the judgment-debtor---Application under O. XXI, R. 12, C.P.C., showed that property in question was in the name of the petitioner---Under O. XXI, R. 12, C.P.C., only moveable property belonging to the judgment debtor could be attached---Judgment-debtor being not the owner of the said property, Executing Court could not attach the same---No statement or undertaking, in the present case, had been given by the petitioner that decree passed against the judgment-debtor would be satisfied by the petitioner from his own personal property---Surety bond furnished by the petitioner before Appellate Court was only with respect to the pre-remand decree whereas said decree was set aside by the Appellate Court---With the setting aside of the said decree, the liability of the petitioner under the said surety bond came to an end---Said surety bond could not be stretched to bound the petitioner for any decree that could be passed against the defendant/judgment-debtor in the post-remand proceedings---Fact that property in-question was owned by the petitioner and not by the judgment debtor was not disputed, therefore, decree passed in post-remand proceedings, could not be satisfied by attaching or selling the property which belonged to the petitioner---Terms and conditions of the special power of attorney executed by defendant/judgment-debtor in favour of the petitioner had only authorized the petitioner to deposit money for the purposes of any proceedings on behalf of defendant/judgment debtor and not to pay decretal amount from his own pocket---Concurrent findings of both the Courts below suffered from jurisdictional irregularity by the misconception of the terms of the said power of attorney---Respondents were at liberty to adopt alternate ways to satisfy the decree, either by enforcing decree abroad or by applying Executing Court to issue warrant of arrest against judgment-debtor---Revision petition was allowed accordingly.
Ibrar Meran v. Judge Family Court, District Gujrat 2011 YLR 206; Muhammad Aslam v. Ayyan Ghazanffar PLD 2012 Lah. 392 and Muhammad Jameel v. Mst. Tahira Bibi 2013 CLC 1529 ref.
Muhammad Pervez v. Mst. Nabila Yasmeen 2004 SCMR 1352 distinguished.
Barrister Farooq Iqbal Khan for Petitioner.
Muhammad Afzal Ansari and Ch. Sheraz Sohail for Respondents.
2018 Y L R 2219
[Islamabad]
Before Athar Minallah and Miangul Hassan Aurangzeb, JJ
KARTAR LAL PIRWANI---Appellant
Versus
MUHAMMAD WAQAR AZEEM and 3 others---Respondents
R.F.A. No.155 of 2017, decided on 4th June, 2018.
(a) Civil Procedure Code (V of 1908)---
----O. XXIII, R. 1, O. VII, Rr. 11, 7 & S. 11---Specific Relief Act (I of 1877), Ss. 12 & 19---Suit for specific performance of agreement to sell---Suit earlier filed was dismissed as withdrawn---Res judicata, principle of---Applicability--- Plaint, rejection of---Breach of contract---Award of compensation---Privity of contract---Scope---Suit earlier filed was dismissed and thereafter another suit was instituted in which plaint was rejected on the ground of res judicata---Plaintiff who was not party in the earlier suits filed suit for enforcement of another agreement to sell for the same suit land but plaint was again rejected on the principle of res judicata---Validity---When subject-matter of the previously instituted suit was not the same and parties were also not the same then principle of res judicata was not applicable---Plaintiff was neither party to the earlier suits nor specific performance of alleged agreement to sell had been prayed---Present suit was not hit by the principle of res judicata---Bar of res judicata would be applicable where issue was raised, determined and decided in the former proceedings between the parties---Earlier suits were not decided on merits in the present case---Principle of res judicata was not applicable in circumstances---Rejection of plaint did not operate as res judicata against the plaintiff in a subsequent suit---Where earlier suit was dismissed as withdrawn then there was no adjudication or determination of the dispute on merits---Principle of res judicata was not applicable where earlier suit was dismissed as withdrawn---Title of suit land did not vest with the defendants in the present case---Plaintiff could not have expected the defendants to transfer rights or title in the suit land which they did not possess---Agreement to sell could only be specifically enforced against a party/vendor who was owner of the property at the time of execution of agreement to sell---Plaintiff had paid earnest money to the defendants and they should not enjoy earnest money and the suit property---Vendor on breach of contract for sale of immovable property was bound to refund the amount of earnest money to the vendee and pay damages for the loss of bargain by paying market value of the property minus the contract price---Plaintiff, in the present case, had not prayed for the award of damages against the defendants---Court had discretion in the matter of granting appropriate relief and grant damages in lieu of specific performance even if plaintiff had not prayed for the same---Plaintiff had no privity of contract with the defendants in the present case---Plaint could only be rejected if all the reliefs claimed were barred by law---Impugned order passed by the Trial Court was set aside---Matter was remanded to the Trial Court to decide the same afresh after having written statement of defendants---Appeal was allowed in circumstances.
Mustafa Kamal v. Daud Khan 2009 SCMR 221; Hafiz Noor Muhammad v. Ghulam Rasul 1999 SCMR 705; Muhammad Akram v. Member Board of Revenue 2007 SCMR 289; Muhammad Saleem Ullah v. Additional District Judge, Gujranwala PLD 2005 SC 511; Hafiz Noor Muhammad v. Ghulam Rasul 1999 SCMR 705; Mian Khan v. Aurangzeb and others 1989 SCMR 58; Abdul Ghafoor v. Chief Settlement Commissioner 1985 SCMR 464; Mst. Kaniz Fatima v. Member (Revenue), Board of Revenue, Punjab Lahore PLD 1973 Lah. 495; Irum Cheema v. Auqaf Department 1999 SCMR 2289; Province of Punjab v. Ghazanfar Ali Shah 2017 SCMR 172; Abdul Hamid v. Dilawar Hussain alias Bhalli 2007 SCMR 945; Managing Director, Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 890; Gulistan Textile Mills Ltd. v. Soneri Bank Ltd. PLD 2018 SC 322 = 2018 CLD 203; Ghulam Nabi v. Seth Muhammad Yaqub PLD 1983 SC 344; Muhammad Akram v. Member, Board of Revenue 2007 SCMR 289; Khairat Masih v. Aziz Sadiq 2004 MLD 943; Ghulam Qadir v. Ahmad Ali 2002 MLD 632; Ghulam Sughran v. Sahibzada Ijaz Hussain PLD 1986 Lah. 194; Haji Muhammad Boota v. Member (Revenue), Board of Revenue, Punjab PLD 2003 SC 979; Nigar Pictures, Karachi v. United Brothers, Lahore PLD 1970 Kar. 770; Muhammad Sharif v. National Motors 1989 CLC 916; Shushilendra Pal Singh v. Kailash Chand Bhargava AIR 1945 Allahabad 395; Callianji Harjivan v. Narsi Tricum ((1895) 19 Bombay 764; Pratapchand v. Raghunath Rao AIR 1937 Nagpur 243; Natu Ram Barman v. Ulluk Chand Barman AIR 1926 Calcutta 1041; K.H. Skinner v. Rosy Skinner AIR 1925 Lahore 132; Arya Pradishak Pratinidhi Sabha through Lala Hans Raj v. Chaudhri Ram Chand AIR 1924 Lahore 713; Punjab Board of Revenue v. Additional District Judge 2003 SCMR 1284; Mrs. Shakila Zaidi v. Hammad Asif Dosslani 2011 CLC 1011; Talaat Inayatullah Khan v. Dr. Anis Ahmad PLD 2015 Kar. 134 and Khursheed Jehan v. Aziz Ahmed Naqvi 1990 CLC 1132 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 11---Res judicata---Scope---Decision once rendered by a competent Court on a matter in issue between the parties after a full inquiry was not to be agitated over and again---Principle of res judicata was based on public policy and necessity to ensure an end to litigation.
Province of Punjab v. Malik Ibrahim and Sons 2000 SCMR 1172 rel.
Rana Shahid Hussain Khan for Appellant.
Mohammad Amin for Respondent No.3.
Usman Rasool, for C.D.A.
2018 Y L R 2350
[Islamabad]
Before Shaukat Aziz Siddiqui, J
Messrs LABBAIK (PVT.) LTD. through Authorised Officer---Appellant
Versus
PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and 2 others---Respondents
F.A.O. No.68 of 2017, heard on 10th May, 2018.
(a) Discretion---
----Order passed by Authority in its discretion---Interference---Principle---When Legislature entrusts to an authority any power to pass order in its discretion, such order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by appellate Court, unless it can be shown to have been based on some mistake of facts or misapprehension of principles applicable thereto.
Corporation of Calcutta v. Mulchand Agarwala PLD 1956 SC Ind. 231 rel.
(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---
----Ss. 20, 27 & 30 (A)---Electronic Media (Programs and Advertisements) Code of Conduct, 2015, Para. 23---Hate speech---Appreciation of evidence---Appellant, an electronic media house, was aggrieved of order passed by Pakistan Electronic Media Regulatory Authority on complaints received for broadcasting hate speech---Validity---Process which was adopted and the way proceedings before passing order in question were carried out was well within the spheres drawn by relevant rules and regulations---Council of Complaints Sindh and Lahore in their joint meeting held at Pakistan Electronic Media Regulatory Authority Headquarters thoroughly analyzed complaints including those complaints which were received through complaint and Call Center of Pakistan Electronic Media Regulatory Authority, reviewed clips/episodes of program in question, heard authorized representatives of appellant as well as host of the program in person and made its recommendations to Pakistan Electronic Media Regulatory Authority which in its meeting determined that contents aired on appellant's channel during program in question were in violation of S. 20 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 read with R. 15 of Pakistan Electronic Media Regulatory Authority Rules, 2009, amounted to hate speech within the meaning of clause 23 of Electronic Media (Programs and Advertisements) Code of Conduct, 2015 and passed order in question---High Court declined to interfere in order in question as same did not suffer from any illegality, unfairness or arbitrariness----Appeal was dismissed in circumstances.
Pakcom Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.
Raja Rizwan Abbasi and Sohail Akhtar for Petitioners.
Ali Shah Gillani and Ali Zeeshan Haider Gondal for Respondents.
2018 Y L R 2452
[Islamabad]
Before Athar Minallah and Miangul Hassan Aurangzeb, JJ
Mst. SUMERA---Appellant
Versus
Mst. ZAITOON JAN and 3 others---Respondents
R.F.A. No.104 of 2015, decided on 14th May, 2018.
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 39---Suit for declaration and cancellation of document---Sale---Proof---Requirements---Contention of plaintiff was that suit property had been transferred without her knowledge and through fraud---Suit was decreed by the Trial Court---Validity---Factum of payment of sale consideration had not been proved through confidence inspiring evidence by the defendant---Any sale without consideration would be void---Burden to prove the contents of a document in addition to proving execution thereof was on its beneficiary who was required to provide reliable, cogent and confidence inspiring evidence to prove its contents even though execution of document might not be in dispute---Execution of document and its contents were distinct items---Neither payment of consideration nor contents of transfer letter were proved in the present case---Alleged sale of suit property and its subsequent transfer stood vitiated in circumstances---Appeal was dismissed in circumstances.
Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Sahdeo Mauar v. Pulesar Nonia AIR 1930 Patna 598; Suresh Chandra Dam v. Sm. Marani Dassi AIR 1936 Calcutta 378; Ramchandra Rambux v. Cham-Pabai and others AIR 1965 SC 354; Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Tariq Mahmood v. Muhammad Asghar 1990 CLC 1214; Mst. Zaiton Begum v. Nazar Hussain and another 2014 SCMR 1469 and Feroze Din v. Abdul Sattar and 4 others PLD 2003 Lah. 204 ref.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633; Mst. Jannat Bibi v. Faqir Muhammad 1998 MLD 837; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 and Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81 rel.
(b) Administration of justice---
----When basic order was without lawful authority the superstructure built thereon would fall to the ground automatically.
Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Muhammad Nadeem Arif and others v. Inspector-General of Police Punjab, Lahore and others 2011 SCMR 408; Executive District Officer (Edu), Rawalpindi v. Mst. Rizwana Kausar and 4 others 2011 SCMR 1581; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.
Sh. Khizar Ur Rashid, Advocate Supreme Court for Appellants.
Ch. Muhammad Jehangir, AHC, Mosin Khan Abbasi, AHC and Jam Khursheed Ahmed AHC for Respondents.
2018 Y L R 3
[Sindh]
Before Khadim Hussain Tunio, J
OSMAN YASIN---Plaintiff
Versus
DEFENCE HOUSING AUTHORITY through Administrator and 7 others---Defendants
Suit No.328 of 2001, decided on 27th February, 2017.
Qanun-e-Shahadat (10 of 1984)---
----Arts. 123 & 124---Specific Relief Act (I of 1877), Ss. 42, 54 & 39---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration, permanent injunction, cancellation, possession and damages---Change of title of suit property on the basis of death of owner---Requirements---Void contract---Good faith---Contention of plaintiff was that he was declared dead by the defendants and suit property owned by him was transferred---Validity---Initial burden was on the Authority and beneficiary to establish that transfer of suit property was valid---Custodian of record of rights should prove to have acted bona fide, fairly and judiciously---Whenever custodian of record-of-rights was to entertain an application for change of title on account of death of recorded owner he should verify the death of owner and status of legal heirs seeking transfer of title in their names/favour and if mechanism/procedure did not provide a satisfactory answer then procedure having binding effect should be asked i.e. a verified declaration to the effect of death and verified status of legal heirs by competent forum preferably a decree to such effect---Persons asserting for change had to prove the death of the person---Constitution guaranteed protection to property right---Plaintiff being alive, transfer of his property in favour of defendants was illegal---Any superstructure raised on such foundation could not stand---Where one was not entitled for a thing directly yet got it indirectly, same would be nothing but an outcome of fraudulent means---Basic transfer of suit property from the name of plaintiff in favour of defendants depended upon the alleged death of plaintiff who was present before the Court---Foundation of defense had been shattered and all the subsequent events were illegal, without lawful authority and were liable to be set aside---Suit property was transferred in the name of defendants without observing legal formalities---No rights and liabilities could be attached to or arise out of a void contract---Superstructure built on such transfer would have no foundation---One would have to establish that he acted vigilantly and in good faith---Beneficiary had to establish that he had probed the entire chain to see that there was no missing link nor there were doubtful circumstances---Defendants could not establish that they acted in good faith and had probed into legality of title---Omission to cross-examine a witness on a material part of his evidence would give rise to inference that truth of his statement had been accepted---Such unchallenged statement of witness should be given full credit and accepted as true unless disproved by reliable and clear evidence---Suit was decreed in circumstances.
Case-law referred.
Muhammad Irfan for Plaintiff.
Nazar Hussain Dhoon for Defendant No.1.
Ms. Shamsha for Defendant No.5.
2018 Y L R 41
[Sindh]
Before Nazar Akbar, J
ALEEMUDDIN---Applicant
Versus
BALBAN HAMEED and 2 others---Respondents
Criminal Revision Application No.67 of 2016, decided on 18th April, 2017.
Illegal Dispossession Act (XI of 2005)---
----Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---Complainant had alleged that he was absolute and exclusive owner of the suit property being purchaser of the same---Proposed accused persons/respondents had encroached upon the same without any lawful authority---Record showed that complaint was filed along with the report of police inquiry---Documents annexed with the criminal revision against the proposed accused persons/respondents were copies of documents from an earlier complaint, which was dismissed---Basic ingredients of a complaint in terms of S. 3 of the Act were missing---Allegation of use of force for dispossession of the appellant/ complainant from the premises in question was not mentioned anywhere in the complaint---Even date of dispossession was not given in the memo---Allegedly, plot was purchased by complainant from attorney of the original owner but power of attorney was not on the record---Complainant was not in possession of suit plot for over twenty years as the plot was not demarcated---Earlier complaint of complainant/appellant was dismissed and if he was aggrieved by the disposal of his earlier complaint, he should have filed appeal/revision---Filing a fresh complaint on the same facts was not permissible---Circumstances established that dispute, in the present case, of civil nature and could only be resolved in civil court---Application was, therefore dismissed in circumstances.
Sami Ahsan for Applicant.
Present in person.
Nemo for Respondent No.2.
Ms. Rahat Ahsan, D.P.G. for the State.
2018 Y L R 53
[Sindh]
Before Aqeel Ahmed Abbasi and Nazar Akbar, JJ
HAROON---Appellant
Versus
ABDUL AZIZ---Respondent
High Court Appeal Nos.8 and 11 of 2016, decided on 29th April, 2017.
Civil Procedure Code (V of 1908)---
----O. XX, R. 18, O.XXIII, R.3 & S. 47---Suit for partition---"Consent decree"---"Preliminary decree"---Execution petition--Objection petition---Scope---Suit was fixed for final argument but parties compromised and consent decree was passed---Contention of judgment-debtor was that order was in the nature of preliminary decree which could not be executed---Validity---"Consent decree" could never be treated as "preliminary" decree---Consent decree was never an order of the Court but was an endorsement of the Court on whatever was liked by the parties to settle their dispute---Parties, in the present case, had agreed to seek partition of suit property through official of the Court in case suit property was found divisible---Once parties had agreed to such proposition that would mean that they had dropped any other possible dispute---Impugned order being a consent order was passed after exhausting all the procedural requirements for delivery of a final judgment on the dispute between the parties---Execution petition was maintainable in circumstances---Executing Court was bound to hear the parties' objection on execution petition if any and execute the decree if it was executable---Tenants, in a civil suit between the owners of the properties were not supposed to have their civil rights as tenant on the ground of being a lawful or otherwise as occupier of the premises---Status of tenant could not be better than the status of their landlord---Execution of a judgment and decree against the judgment-debtor was equally binding on the person claiming possession through judgment-debtor---Appeal was dismissed in circumstances.
Case-law referred.
Mushtaq A. Memon for Appellant (in H.C.A. No.8 of 2016).
Naraindas C. Motiani for Respondent (in H.C.A. No.8 of 2016).
K.A. Wahab and Khilji Fahad Arif for Appellant (in H.C.A. No.11 of 2016).
Naraindas C. Motiani for Respondent No.1 (in H.C.A. No.11 of 2016).
Nemo for Respondent No.2 (in H.C.A. No.11 of 2016).
2018 Y L R 86
[Sindh (Hyderabad Bench)]
Before Niamatullah Phulpoto and Rasheed Ahmed Soomro, JJ
SADAM HUSSAIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.D-17, Criminal Jail Appeal No.D-18 and Confirmation Case No.4 of 2013, decided on 30th March, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused had refused to allow his wife to go with her parents but they took their daughter without permission of accused, which caused annoyance and he murdered parents of his wife---Ocular account was furnished by witnesses/real sons of deceased persons---Said witnesses implicated the accused-appellant in the commission of offence---Evidence of said witnesses reflected that occurrence had taken place during day time and both parties being closely related to each other, there was no possibility of mis-identification of accused-appellant---Said witnesses had no enmity with the accused to falsely involve him in the case---Witnesses had plausibly explained their presence at the time of incident and given consistent account of the occurrence and had corroborated each other in respect of date, place and time of incident---Witnesses were subjected to lengthy cross-examination but the intrinsic value of their evidence could not be shaken---Record showed that FIR was promptly lodged within two hours of the occurrence, which excluded the chance of false implication of accused---Ocular version was fully corroborated by the medical evidence, as both the deceased lost their lives due to firearm injuries---Circumstances established that prosecution had successfully proved its case against the accused-appellant through direct evidence corroborated by medical evidence---Appeal against conviction and sentence was dismissed in circumstances.
Iqbal alias Ladla and another v. The State 2000 PCr.LJ 1607; Hidayatullah and 3 others v. The State 1983 PCr.LJ 447; Sajid Ali Shah v. The State 2010 PCr.LJ 211; Pir Jan and another v. The State 1997 PCr.LJ 1646; Sobho and 2 others v. The State PLD 2004 Kar. 8; Lal Bux v. The State 1988 MLD 174; Riaz v. The State PLD 2007 Lah. 606; Ghafoor Khan v. Mst. Gulab Zari and another PLD 2006 Pesh. 102; Muhammad and another v. The State 1991 PCr.LJ 761 and Dadullah and another v. The State 2015 SCMR 856 ref.
Sharafat Ali v. The State 2016 SCMR 28 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Minor contradictions in statements of prosecution witnesses---Effect---Contradictions in the statements of prosecution witnesses pointed out by defence were not only minor in nature but were immaterial as well; such contradictions naturally could crop up when the evidence was recorded after lapse of considerable time.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Interested witness---Scope---Testimony of closely related witness--- Reliance--- Scope---Prosecution case was that accused refused to allow his wife to go with her parents but parents took their daughter without the permission of accused, which caused annoyance to accused and he murdered the parents of his wife---Defence had alleged that both the eye-witnesses were sons of deceased persons, therefore, reliance could not be placed on their testimony---Validity---Mere relationship or close association of prosecution witnesses with the deceased in the absence of established hostility, animosity or any other motive to depose falsely would not be sufficient to hold them to be "interested witnesses"---Evidence of closely related persons could not be discarded on the ground of relationship.
Munawar Ali v. The State 2001 SCMR 614 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Substitution of accused---Eye-witnesses being real sons of deceased persons could not allow the real murderer to go scot-free and falsely implicate their brother-in-law in place of real culprit---Substitution was a rare phenomenon.
Muhammad Iqbal v. The State PLD 2001 SC 222 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Recovery of weapon of offence from accused---Effect---Weapon of offence, 12-bore double barrel gun, used in the commission of offence had been produced by the accused during investigation---Two empties were recovered, which were sent to the Ballistic Expert---Positive report of Ballistic Expert, wherein Expert had opined that 12-bore crime empties were fired from right and left barrels of 12-bore double barrel short gun produced by accused---Recovery, effected thus provided full corroboration to the ocular account---Appeal against conviction and sentence was dismissed in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 506(2)---Qatl-i-amd, threat to cause death or grievous hurt---Appreciation of evidence---Motive, proof of---Motive for the occurrence as alleged by the prosecution, was that accused had refused to allow his wife to go with her parents but her parents took their daughter without the permission of accused, which caused annoyance and he murdered parents of his wife---Prosecution had proved the motive part of the occurrence by producing witnesses of ocular account---Said witnesses had stated about the motive in their evidence before the Trial Court---Circumstances established that prosecution had proved motive.
(g) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Death sentence, award of---Principle---Death sentence in a murder case was a normal penalty and the court was to give reasons for lesser sentence.
Dadullah and another v. The State 2015 SCMR 856 rel.
Ms. Nasira Shaikh for Appellant.
Syed Meeral Shah Bukhari, Deputy Prosecutor General for the State.
2018 Y L R 120
[Sindh (Hyderabad Bench)]
Before Mohammed Karim Khan Agha, J
ARBELO alias PAPOO---Appellant
Versus
The STATE---Respondent
Cr. Jail Appeal No.S-135 of 2011, decided on 21st April, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account not supported by medical evidence---Prosecution case was that the accused-appellant used to maltreat his wife and committed her murder by hanging her with cloth in the girder---FIR was lodged on the statement of father of the deceased---Ocular account was furnished by sole eye-witness, who stated that deceased was his niece and he went to the house of accused-appellant and had seen the accused maltreating the deceased and hanging her with a cloth in the girder and she died; did not intervene to stop the accused from hanging his niece--Testimony of said witness was not confidence inspiring for the reason that deceased being his niece he would not want her death to be classified as suicide---Witness had stated that he heard commotion and went to the house of accused; record showed that accused-appellant's house was at a distance of 455 feet from the noisy brick kiln, as such it was not believable that eye-witness had heard any commotion which made him go to the house of accused---Said factors showed that evidence of eye-witness was not confidence inspiring and unimpeachable and highly doubtful---Medical report of the deceased showed that death was caused by hanging which was suicidal in nature---Witness had deposed that accused took off the deceased's dupetta and used the same to hang her over the girder; in such a situation, deceased would have resisted and would have had fresh bruises on some parts of her body---Medical evidence had not revealed any fresh or old injuries/bruises or any recent acts of violence had been carried out against the deceased, even her hyoid bone in her neck was intact---Evidence of said witness had largely been corroborated by prosecution witnesses including complainant but they were not eye-witnesses and were informed about the incident by the sole eye-witness---Admittedly, such was hearsay evidence---Attending circumstances suggested that testimony of sole eye-witness could not be considered to be trustworthy, reliable or confidence inspiring---No other independent corroborative evidence was available on the basis of which, it could be said that accused had murdered the deceased---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt against the accused, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.
Noor Muhammad v. The State and another 2010 SCMR 97; Wali Muhammad and others v. The State and another 2015 YLR 2622; Qadeer Hussain v. The State 2017 PCr.LJ Note 18; Habib Ur Rehman v. The State and others 2017 YLR 32; Abid and others v. The State 2017 YLR 267; Arshad Khan v. The State 2017 SCMR 564; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Khan Zaman v. The State 2000 PCr.LJ 447; Chakar Jaffari and 2 others v. The State 2011 MLD 524; Muhammad Yaqoob v. Allah Rakha and 4 others 2012 PCr.LJ 1942 and Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 ref.
Muhammad Asif v. The State 2017 SCMR 486 rel.
(b) Criminal trial---
----Sole eye-witness---Evidentiary value---Scope---Conviction could be imposed on the evidence of sole eye-witness, provided that eye-witness account was unimpeachable and confidence inspiring---Such evidence must be corroborated by medical evidence.
Muhammad Ehsan v. The State 2006 SCMR 1857 rel.
(c) Criminal trial---
----Benefit of doubt---Scope---Prosecution was bound to prove its case against the accused beyond shadow of a doubt---If there was any doubt in the prosecution's case, benefit of such doubt would be extended to the accused as of right.
Tariq Pervez v. The State 1995 SCMR 1345; Faheem Ahmed Farooqui v. State 2008 SCMR 1572 and Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 rel.
Ashfaque Ahmed Lanjar for Appellant.
Shahid Ahmed Shaikh, A.P.G. for Respondent.
Hussain Bux Solangi for the Complainant.
2018 Y L R 134
[Sindh (Hyderabad Bench)]
Before Aqeel Ahmed Abbasi and Yousuf Ali Sayeed, JJ
Qazi MUSHTAQ AHMED---Petitioner
Versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through NAB(K) Sindh ---Respondent
Constitutional Petition No.D-3529 of 2016, decided on 20th July, 2017.
National Accountability Ordinance (XVIII of 1999)---
----S. 9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Delay in trial---Medical ground---Hardship case---Petitioner was accused facing trial under National Accountability Ordinance, 1999, who was a patient of Hepatitis "C" and had been in custody for more than two years---Validity---Petitioner was an ailing person who was suffering from various ailments including diabetes, hepatitis "C" and liver cirrhosis---Main accused persons had already been released either on bail or on their having entered into plea bargain / voluntary return---Material witnesses were yet to be examined by prosecution and there was no possibility that trial could be concluded at an early date---Prosecution witnesses so far examined did not directly implicate petitioner with commission of alleged offence and the same required further evidence to prove guilt of petitioner after conclusion of trial---Petitioner had made out a case of further inquiry and he was no more required for further investigation, as prosecution had already obtained evidence / material in respect of reference in question---Challan was submitted and trial was proceeding before Accountability Court and there was no possibility that petitioner, if released on bail would tamper with the evidence---Bail could not be withheld as punishment, particularly when matter required further inquiry---Petitioner had already faced agony of prolonged inquiry, investigation and he was confined in jail during trial for a period of almost more than two years---Case of petitioner was one of further inquiry as well as hardship in view of his serious ailments and inordinate delay in conclusion of trial, which could not be attributed to petitioner, whereas prosecution story could not be considered as free from doubt---Bail was allowed in circumstances.
Shoaib Warsi and others v. Federation of Pakistan and others PLD 2017 Sindh 243; Atta Abbas Zaidi v. Chairman NAB and others PLD 2017 Sindh 120; Muhammad Jahangir Baqar v. The State and others PLD 2003 SC 525; Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645; Muhammad Anwar Brohi v. Chairman NAB Islamabad Civil Petition No.11 of 2016 and Abdul Aziz Qazi v. National Accountability Bureau and 2 others 2012 MLD 777 ref.
Sarmad Sattar Laghari for Petitioner.
Jangoo Khan, Senior Special Prosecutor NAB for Respondent.
2018 Y L R 158
[Sindh (Sukkur Bench)]
Before Khadim Hussain M. Shaikh, J
SHEHZADO---Petitioner
Versus
Mst. BASHIRA---Respondent
Constitutional Petition No.S-722 of 2016, decided on 15th June, 2017.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for maintenance allowance for minors---Defendant/father had contracted second marriage---Family Court as well as appellate court decreed suit for maintenance allowance for minors--Delaying tactics applied by the father to avoid satisfaction of the decree---Effect---Responsibility of the father of the minors---Scope---Petitioner/father contended that as two courts below had not evaluated the evidence so the case be remanded to the Trial Court to decide afresh---Respondent/mother contended that the petitioner had deserted minors since his second marriage and had been applying delaying tactics to avoid satisfaction of the decree---Validity---Trial Court, after considering evidence on record and the admission by the father/petitioner passed decree of maintenance allowance of the minors for the period of admitted default and appellate Court, taking lenient view, had reduced the rate of maintenance allowance---Petitioner/father had not paid any amount towards maintenance of five children since May, 2013 and dragged the matter here and there with intent to increase the miseries and agonies of the respondent/wife and put his children in hardship and sufferings despite being duty bound to provide proper maintenance to them---Such conduct of the father, was deprecated---Father by filing constitutional petition had attempted to delay the satisfaction of the decree passed by the competent courts against him, and to deprive his children of the fruits of the decree, infringing their right of maintenance---No illegality or infirmity having been noticed in the judgments and decrees of the two courts below, constitutional petition was dismissed accordingly.
Asif Rafique v. Mst. Quratullain and 3 others 2016 MLD 425 and Mst. Amreen v. Muhammad Kabir 2015 YLR 170 distinguished.
Shakeel Ahmed Kalwar for Petitioner.
Agha Athar Hussain Pathan, A.A.G. for Respondent.
2018 Y L R 176
[Sindh (Hyderabad Bench)]
Before Aqeel Ahmed Abbasi and Yousuf Ali Sayeed, JJ
SHOAIB AHMED and others---Petitioners
Versus
The STATE and others---Respondents
Constitutional Petitions Nos. D-3132, D-3134 to 3136 of 2016, decided on 13th July, 2017.
National Accountability Ordinance (XVIII of 1999)---
----S.9 (a) (b)---Constitution of Pakistan, Art. 199---Bail, grant of---Rule of consistency---Delay in conclusion of trial---Petitioners were accused facing trial before Accountability Court---Plea raised by petitioners was that delay in conclusion of trial was not attributed to them---Validity---Petitioners had been behind the bars since their arrest and delay in conclusion of trial was not attributable to them---Witnesses produced and examined by NAB authorities did not directly implicate petitioners in alleged crime---No possibility existed of early conclusion of trial as according to prosecution, a number of witnesses were yet to be examined by NAB authorities to establish allegations of corruption and corrupt practice---Co-accused persons with similar allegations were enjoying concession of pre-arrest bail and no efforts were made by NAB authorities for cancellation of their bail---Withholding of bail to petitioners, who were implicated in Reference on similar set of allegations as against co-accused persons, would amount to punishment to petitioners, who were no more required for further investigation---No possibility existed that petitioners, if released on bail, could tamper with evidence, which according to prosecution had already been collected and produced before the Accountability Court---Petitioners had made out a case of further inquiry and prosecution case could not be considered to be free from doubt---Inordinate delay in completion of inquiry, investigation and conclusion of trial were not explained properly by NAB authorities---Bail was allowed in circumstances.
Abdul Aziz Qazi v. National Accountability Bureau 2012 MLD 777; Muhammad Anwar Brohi v. Chairman NAB, Islamabad Civil Petition No.11 of 2016 and Shoaib Waris and another v. Federation of Pakistan and others PLD 2017 Sindh 243 rel.
Sardar Amin Farooqui v. Chaiman NAB and another 2014 PCr.LJ 186 and Abdul Jabbar v. State (NAB) 2015 YLR 108 ref.
Irfan Ahmed Qureshi for Petitioners (in C.P. No.D-3132 of 2016), Ishrat Ali Lohar for Petitioners (in C.P. No.3134 of 2016), Shahab Sarki for Petitioners (in C.P. No.D-3135 of 2016) and Aijaz Shaikh for Petitioners (in C.P. No.D-3136 of 2016).
Zulfiqar Ali Rajput and Aurangzeb Talpu, Assistant Attorney General for the Federation.
Jangoo Khan, Senior Special Prosecutor NAB for Respondents Nos. 2 and 4.
2018 Y L R 190
[Sindh (Hyderabad Bench)]
Before Mohammad Karim Khan Agha, J
JAN MUHAMMAD alias JANU---Applicant
Versus
The STATE---Respondent
Cr. Bail A. No.S-1079 of 2016, decided on 6th April, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic drugs---Bail, refusal of---Accused belonged to place "A" while the arresting police was from place "B" and as such had no animus or nexus with the accused to involve him in a false case---Prima facie 4.5 kilogram charas (narcotic) was recovered from the accused and chemical report was positive, therefore, S. 9(c) of Control of Narcotic Substances Act, 1997 would be attracted putting the case within prohibitory clause of S. 497, Cr.P.C.---Absence of independent mushirs (recovery witnesses) was not helpful to the accused---Bail, in such like cases, would be granted very cautiously and sparingly especially where massive recoveries had been made and prima facie there appeared sufficient material to connect the accused with the offence for which he was charged---Bail was refused accordingly.
Dolat Khan v. The State 2016 SCMR 1447 and Socha Gul v. The State 2015 SCMR 1077 rel.
Ghulam Murtaza v. State PLD 2009 Lah. 362 distinguished.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Scope---While hearing a petition for grant of bail the court would not keep in view the maximum sentence provided by the statute for the charged offence but the one which was likely to be entailed.
Main Taj Muhammad Keerio for Applicant.
Shahid A. Shaikh, A.P.G. for the State.
2018 Y L R 204
[Sindh]
Before Abdul Rasool Memon, J
SULTAN and 6 others---Applicants
Versus
The STATE---Respondent
Criminal Bail Application No.551 of 2016, decided on 27th February, 2017.
Criminal Procedure Code (V of 1898)---
---S. 498---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(ii), 337-F(vi), 337-L(2), 506(2), 147, 148, 149, 114, 504 & 452---Attempt to commit qatl-i-amd, hurt, rioting, unlawful assembly, abettor present when offence committed, criminal intimidation, intentional insult with intent to provoke breach of peace, house trespass after preparation for hurt, assault or wrongful restraint---Bail, grant of---Further inquiry---Complainant party alleged that accused persons attacked upon them with hatchet, when they were sitting in the house of complainant---Motive was property dispute---Injuries sustained by injured persons were opined by the Medical Officer as falling under Ss.337-F(vi) & 337-L(2), P.P.C.---FIR was lodged with a delay of thirty six days---Accused had also got registered FIR by alleging therein that complainant party had attacked upon them while armed with deadly weapons---Medico-legal Certificates were placed on record and Medical Officer in his final report had declared said injuries falling under Ss.337-F(vi) & 337-L(2), P.P.C.---Alleged offences did not fall within prohibitory clause of S.497, Cr.P.C.---Both the parties had already given their version in a manner in which the incident took place; suppression of real facts by both the parties could not be ruled out---Involvement of accused in commission of alleged offence required further inquiry---Bail was granted accordingly.
Jamil Ahmed Shah for Applicant.
2018 Y L R 209
[Sindh]
Before Fahim Ahmed Siddiqui, J
Mst. REHANA alias MUNI---Applicant
Versus
The STATE---Respondent
Criminal Bail Applications Nos.851 and 245 of 2017, decided on 25th July, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 201, 406, 420, 468, 471, 506 & 34---Causing disappearance of evidence, criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal intimidation, common intention---Bail, refusal of---Accused allegedly in collusion of other co-accused got transferred, leased out and disposed of the house of complainant by managing false and fabricated document---Accused (sister-in-law of complainant) imposed herself as the original owner of house before the authorities and she managed to issue a fake Computerized National Identity Card as such she got the said house mutated and sold out to co-accused who further sold out said property to another co-accused---Delay in lodging the FIR was quite rational as the complainant was residing abroad---No doubt case of accused fell under First Proviso to S. 497, Cr.P.C., but a strong documentary evidence was available against the accused that she acted in a duplicitous manner for getting Computerized National Identity Card---Co-accused subsequently purchased the house of complainant and just after purchasing the same, he managed to get finance from the Bank and thereafter he purposely avoided to pay loan---Fraud of accused persons was very much clear from the fact that although all the documents were managed by accused persons yet they were not in possession of the property and same was still in possession of complainant---Bail was refused accordingly.
Ahmed Nawaz for Applicant (in B.A. No.851 of 2017).
Kausar Ali Shar for Applicant (in B.A. No.245 of 2017).
Muhammad Farooq for the Complainant.
Zafar Ahmed Khan, Addl. P.G. for the State.
2018 Y L R 216
[Sindh]
Before Muhammad Iqbal Kalhoro, J
LAL DINO alias LALOO---Appellant
Versus
The STATE---Respondent
Cr. Appeal No.198 of 2013, decided on 25th August, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account was not corroborated by medical evidence---Prosecution case was that accused duly armed with a gun along with ten other co-accused armed with different weapons including rifles, hatchets etc. assaulted on complainant party, made firing, as a result of which, son of complainant was hit by the fire of accused and died---Motive behind the occurrence was enmity of the parties over a plot---First Information Report stated that accused was armed with a gun, two co-accused were armed with rifles, whereas the remaining co-accused persons were armed with lathis and hatchets---Statement that co-accused armed with firearms fired at the complainant party did not appear to be supported by any evidence---Memo of place of incident indicated that only one crime empty was recovered from there, which suggested that only one fire was shot---Witness, real brother of the deceased, had not supported the factum of firing upon them by the accused persons having fire arms---Said witness deposed that the accused caused fire arm injury to the deceased, whereas the remaining co-accused persons fired in the air---Said assertion of witness that co-accused persons made firing in the air contradicted the FIR and was not corroborated by any other evidence---Witness/real brother of the deceased in his cross-examination had disclosed that he did not receive any injury in the incident because he saved himself by running from there---Other witness stated that he and the brother of deceased had not run---Such discrepancies suggested that two witnesses were not present at the spot at the time of incident---Tapedar, who prepared the sketch of place of incident to show exact location of the accused, the witnesses and the deceased, was given up by the prosecution, which showed that he did not support the case in the manner as presented by the prosecution in the trial---Location of the incident and positions of the accused, eye-witnesses and the deceased at the time of incident had remained shrouded in mystery due to absence of sketch and evidence of the Tapedar---Injured witness was a natural witness to support the prosecution case in the manner as described in the FIR but his evidence was withheld---Postmortem of the deceased showed that besides a firearm injury, he sustained three incised wounds caused by sharp edged weapon---Witnesses who claimed to have seen the incident had not attributed specifically those wounds to any of the accused in their deposition, which further strengthened the impression that they were not present at the time of incident---Co-accused persons on the basis of same set of evidence had been acquitted by the Trial Court---Acquittal of co-accused persons had not been challenged by the complainant party, although prosecution case was that all the accused persons with their common object committed murder of the deceased---Such situation indicated that the Trial Court was not sure about worthiness of evidence of the witnesses in respect of them---Circumstances established that prosecution had not been able to prove the case against the accused beyond a reasonable doubt---Accused was acquitted in circumstances by setting aside the convictions and sentences recorded by the Trial Court.
1999 SCMR 697; 2010 SCMR 1009; 2004 PCr.LJ 42; 2001 SCMR 56 and PLD 1978 SC 1 ref.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Motive not proved---Effect---Motive behind the incident stated to be enmity on a plot of land had not travelled beyond a bald statement and no proof thereof had been brought on record---Circumstances established that prosecution failed to prove the alleged motive.
(c) Criminal Procedure Code (V of 1898)---
----S. 161---Statement of witness before police--- Delay--- Effect--- Delay in recording the statement of the witnesses who were either family members or close relatives of the deceased would be inexplicable.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Recovery of weapon of offence from accused---Reliance---Scope---Gun used in the offence was recovered from the accused at the time of his arrest---Alleged recovered gun was never sent for examination along with the crime empty to Forensic Science Laboratory to find out as to whether the empty was fired from the same gun or not---Gun allegedly recovered from the accused in absence of Forensic Report in that regard could not be opined to be the crime weapon and thus could not be considered as supporting evidence against accused.
(e) Criminal Procedure Code (V of 1898)---
----S. 342---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Statement of accused was recorded under S. 342 Cr.P.C. in the stereotype manner and all the incriminating pieces of evidence were not put to the accused---Effect---Record showed that neither the medical evidence, nor the recovery of crime empty from the incident or confession of accused or even the motive part of the case had been put to accused while recording his statement under S. 342, Cr.P.C.---If any piece of evidence, relied upon by the prosecution, was not put to accused in his statement recorded under S.342, Cr.P.C., such statement could not be considered for the purpose of conviction.
Abdul Wahab Baloch for Appellant.
Abrar Ali Khichi, DPG for Respondent.
Shoukat Ali Makwal and Farzana Bhatti for the Complainant.
2018 Y L R 242
[Sindh]
Before Syed Muhammad Farooq Shah and Khadim Hussain M. Shaikh, JJ
SAEEDUL HAQUE alias ABDULLAH and another---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.412 and Criminal Revision Application No.D-184 of 2011, decided on 4th May, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 392, 397, 216 & 34---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, harboring, common intention---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Accused were alleged to have made firing on the cousin of complainant who succumbed to the injuries---Complainant did not claim to be eye witness of the occurrence---FIR was lodged on the statement of complainant, which he got recorded on the basis of information supplied to him on cell phone---Prosecution had examined two alleged eye-witnesses, who though claimed themselves to be available near the place of wardat at the relevant time, yet they both were not named as witnesses in the FIR---Eye-witness deposed that deceased was taken out from his car by two police personnel with the help of other people gathered there and was shifted to hospital in the car of other eye-witness, in injured condition---Said eye-witness claimed to have followed the said car and reached hospital, where deceased, then injured, succumbed to injuries---Police Officer/witness stated that he contacted the relative of the deceased through mobile number of the deceased, whereupon the complainant and his other relative reached the hospital---Eye-witness alleged that he informed the complainant about the deceased sustaining injuries and taking him to hospital in injured condition---Complainant did not depose that he was informed either by eye-witness or by Police Officer/witness about the incident---Version of complainant that he received the dead body after the post-mortem was corroborated from the receipt issued by the complainant in token of having received the dead body of deceased, which was produced in evidence---Said eye-witness had acted as mashir in superdiginama of dead body, clothes of deceased etc., prepared at mortuary of hospital, where he was shown available, yet he never claimed himself to be eye witness of the occurrence---Said witness was introduced by the prosecution as eye-witness after six days of the incident, when his statement was recorded by police under S. 161, Cr.P.C.---Statements of eye-witnesses were recorded under S. 164, Cr.P.C. but in their statements the name of accused persons were not mentioned as culprits---Said witnesses identified the accused persons in their deposition recorded before the Trial Court after more than 11 months and more than 19 months respectively of the incident---Identification of accused persons before the Trial Court after such a long delay of the incident hardly satisfied the requirements of law---Identification parade test was essentially to be held in the present case but no such test was held---Circumstances created doubts about the veracity of prosecution case, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Sohail Abbas and others v. Kashif and others PLD 2001 SC 546; Asghar Ali v. The State 1992 SCMR 2008; Muhammad Ilyas v. The State 1997 SCMR 25; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Akram v. The State 2009 SCMR 230 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 392, 397, 216 & 34---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, harboring, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Record showed that deceased had died of unnatural death due to fire arm injuries on his neck and shoulder, which were sufficient to cause death---Post-mortem of deceased showed the time between death and postmortem to be 3 to 4 hours----Post-mortem was started at 11.50 p.m., thus as per medical evidence, deceased had died between 7.50 p.m. and 8.50 p.m., however, as per alleged eye-witnesses, incident had taken place at 10.45 p.m.---Prosecution case was that the deceased was taken to hospital by two police personnel, but the names of said two police personnel were never surfaced or disclosed by the prosecution---Post-mortem report showed that dead body of the deceased was brought at the hospital by the Police Officer/witness---Said Police Officer/witness in his deposition, deposed that at 10.45 p.m., he was available at police station, where he was informed by the SHO that one person was shot dead and he reached the hospital where he found dead body of the deceased lying in the mortuary---Circumstances established that medical evidence did not support the version of prosecution---Accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 392, 397, 216 & 34---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, harboring, common intention---Appreciation of evidence---Benefit of doubt---Delay in recording the statements of witnesses---Effect---Record showed that the statements of alleged eye-witnesses were recorded under S. 161, Cr.P.C. after six days of the incident---No plausible explanation for such inordinate delay in recording statement under S.161, Cr.P.C. was tendered---Said eye-witnesses were shown to be available at the time of preparing mashirnamas of clothes and superdiginama of dead body of deceased in hospital, but they did not claim to be eye-witnesses of the occurrence nor they got recorded their statements earlier---Statements under S. 164, Cr.P.C. of said alleged eye-witnesses were recorded with further delay of one month from the date of alleged incident and 25 days after their statements recorded under S. 161, Cr.P.C.---Said inordinate delay was not at all explained by the prosecution---Accused persons were neither named in the statements under S. 161, Cr.P.C. nor were they named in the statements recorded under S. 164, Cr.P.C. by the alleged eye-witnesses---Said statements of witnesses recorded after such a long delay and in the absence of strong corroboratory evidence were not safe to be relied upon---Accused persons were acquitted by setting aside conviction and sentence recorded by the Trial Court.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 392, 397, 216 & 34---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, harboring, common intention---Appreciation of evidence---Recovery of weapon of offence---Proof---Weapon of offence pistol 30-bore was recovered from open place, which was accessible to everyone---Accused was tried under S.13(e) of Pakistan Arms Ordinance, 1965 and was acquitted of the charge---No appeal against the acquittal of the accused in the case under Pakistan Arms Ordinance, 1965, had been filed by the State, as such the alleged recovery of the weapon had not been proved.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 392, 397, 216 & 34---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, harboring, common intention---Appreciation of evidence---Contradictions and improvements in the statement of eye-witnesses---Effect---Material contra-dictions, dishonest and deliberate improvements, made by the eye-witnesses in their evidence during the trial, rendering the case of prosecution highly doubtful, benefits of which would go to the accused persons.
Akhtar Ali and others v. The State 2008 SCMR 6 rel.
Saifullah for Appellants.
Jamil Ahmed Javed for the Complainant.
Abrar Ali Khichi, A.P.G. for the State.
2018 Y L R 259
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J
MUHAMMAD ANWAR---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No. S-152 of 2016, decided on 3rd October, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.154---First information Report---Delay in lodging---Effect---Delay in lodging FIR could not be presumed to be fatal for the prosecution as each case had its own merits and circumstances---Mere delay in lodging FIR was not sufficient to claim of releasing the accused from the charge.
(b) Penal Code (XLV of 1860)---
----Ss. 324 & 337-D---Attempt to commit qatl-i-amd, jaifah---Appreciation of evidence---Delay of about 18 hours in lodging FIR---Effect---Complainant had satisfactorily explained the delay in lodging FIR that he received information through cell phone regarding the incident which had taken place at about 7.30 p.m. on 4.8.2015, and he went to the place of occurrence---Complainant, with the help of people of the locality had brought his injured brother to the hospital and remained busy for first-aid/treatment---Complainant then went to police station and lodged the FIR---Such delay of few hours in reporting the matter to the police was not fatal in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 324 & 337-D---Attempt to commit qatl-i-amd, jaifah---Appreciation of evidence---Ocular account corroborated by medical evidence---Complainant had lodged FIR alleging therein that he along with his brothers and accused were residing in the same house---Accused attacked upon the brother of complainant with knife with intention to commit his murder and he sustained injury over the back of abdomen---Motive behind the incident was property dispute between the parties---Ocular account was furnished by the prosecution witnesses including complainant and injured---Complainant and prosecution witnesses during evidence had categorically deposed that prior to the alleged date of incident, accused used to fight with victim and many times he issued murderous threats to him---Injured witness deposed that accused assaulted on him with knife when he was offering maghrib prayers and was in Sajda at the place of incident---Injured witness supported the version of complainant as narrated in the FIR---Prosecution witness also supported the case of prosecution in his evidence---Medical Officer had opined that the injury received by the injured was sharp cutting weapon and it was a incised wound deep over right side back of abdomen (upper part)---Admittedly, the complainant, victim and accused were real brothers, therefore during evidence of complainant and injured, nothing had come on record in respect of false implication of accused in the case---Prosecution witnesses were cross-examined at length, but their evidence could not be shaken and they corroborated each other on all material aspects of the case to the extent of accused---Evidence of prosecution witnesses was trustworthy and confidence inspiring which was consistent and supportive to the prosecution case as no contradiction had been pointed out---Circumstances established that no perversity, illegality and incorrectness existed in the impugned judgment---Appeal against conviction was dismissed in circumstances.
Ghani v. The State SBLR 2016 Sindh 447; Mehmood Ahmad and 3 others v. The State 1965 SCMR 127; Farooque v. The State 2011 PCr.LJ 158; Shams Ullah v. The State 2011 PCr.LJ 162; Liaquat Ali v. The State 2008 SCMR 95; Muhammad Younas v. The State 2015 YLR 2369; Mst. Kulsoom Bibi through Attorney v. Muhammad Waseem and 3 others 2015 YLR 2375; Rafiullah v. The State 2012 MLD 343; Muhammad Yameen alias Raja v. The State 2009 SCMR 84; Liaquat Ali v. The State 2009 SCMR 91; Ashiq Hussain v. The State 1993 SCMR 417; Munir Ahmed alias Munni v. The State 2001 SCMR 56; Muhammad Sultan v. Muhammad Shah Din and others 2001 SCMR 63 and Muhammad Irshad and another v. The State 1999 SCMR 1030 ref.
(d) Penal Code (XLV of 1860)---
----Ss. 324 & 337-D---Attempt to commit qatl-i-amd, jaifah---Appreciation of evidence---Recovery of weapon of offence---Reliance---Crime weapon was recovered on the disclosure of accused---Accused stated that he had hidden the crime weapon in the garbage after washing the same---Non-sending the crime weapon to the serologist, did not effect the prosecution case.
Mian Taj Muhammad Keerio for Appellant.
Imtiaz Ali Chahnio for the Complainant.
Shahzado Saleem Nahiyoon, D.P.G. for the State.
2018 Y L R 279
[Sindh]
Before Nazar Akbar, J
MUHAMMAD ARSHAD AWAN---Plaintiff
Versus
The PROVINCE OF SINDH through Chief Secretary Sindh Secretariat, Karachi and 2 others---Defendants
Suit No.2093 of 2015, decided on 14th July, 2017.
Civil Procedure Code (V of 1908)---
----O. VII, R. 2 & O. XII, R. 6---Money suit---Award of contract by government---Payments/financial involvements with contractors--- Procedure--- Written statement submitted by the Government---Essentials---High Court observed that written statement so submitted must be examined by the law officer before placing in the Court; that fair and honest contest from the defendant be made and that claim of plaintiff might be true but the it was to be seen that there was no collusion between the plaintiff and defendant---Plaintiff, in the present case had desired to involve the Court before making the payment by the Government---Scope---High Court further observed that Courts were involved in routine financial matters of the departments when they needed to do something out of box---Such conduct of government functionaries could be described as the worst form of abuse/mis-use of process and authority of the Court---Court had to pass an order according to law on the basis of record placed before it---Guidance could be provided by Court to the Auditors that any payment made by any of the government functionaries under a decree or order of Court should not be treated as unquestionable by them---Payment made by government functionaries during course of their routine financial matters was subject to lawful scrutiny by the Auditor though the payments were made under the cover of judgments and decrees or order of the Court---Civil Court on passing a decree on admission whether genuine or not could not conduct audit of accounts to ascertain the correctness of claim and its acceptance by the defendants---High Court further observed that Chief Secretary of the Province and Auditor should see if there was any mischief on the part of official defendants and take care of it accordingly.
Mukesh Kumar G. Karara for Plaintiff.
2018 Y L R 297
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi and Zulfiqar Ahmad Khan, JJ
Syed KHADIM HUSSAIN SHAH WHEEDHAL SHAH through L.Rs. and 2 others---Petitioners
Versus
Syed SHUJJA HUSSAIN SHAH and 10 others---Respondents
C.P. No.D-2226 of 2016, decided on 3rd May, 2017.
Civil Procedure Code (V of 1908)---
----O. VII, R. 11---Suit for declaration---Plaint, rejection of---Scope---Issues had been framed and matter had been fixed for evidence by the Trial Court---Defendant moved application for rejection of plaint but same was dismissed concurrently---Validity---No mis-reading or non-reading of evidence or any other defect in exercise of jurisdiction by the courts below stood proved---No case was made out that courts below had exercised jurisdiction not vested in them or that they had acted illegally or with material irregularity---No case having been made out for interference by the High Court in the concurrent findings of courts below, impugned findings did not appear to be perverse, irregular or illegal but were based on solid reasons---Matter being for evidence, Trial Court was directed to decide the case on merits within the period of six months---Constitutional petition was dismissed in circumstances.
Khadim Hussain Soomro for Petitioners.
Allah Bachayo Soomro, A.A.G. for Respondents.
2018 Y L R 318
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar and Khadim Hussain Tunio, JJ
ASIF ALI JATOI---Petitioner
Versus
STATION HOUSE OFFICER, POLICE STATION QASIMABAD, HYDERABAD and 2 others---Respondents
C.P. No.D-2648 of 2016, decided on 21st December, 2016.
Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B(6)---Ex-Officio Justice of Peace, jurisdiction of---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace directing police to record statement of respondent and register case if any offence was made out---Validity---Order passed by Ex-Officio Justice of Peace was not speaking order and based upon surmises and conjectures---High Court in exercise of Constitutional jurisdiction set aside order and application under Ss, 22-A & 22-B(6), Cr.P.C. filed before Ex-Officio Justice of Peace was dismissed---Constitutional petition was allowed in circumstances.
Imtiaz Ahmed Cheema v. SHO PS Dharki, Ghotki 2010 YLR 189; Jamil Ahmed Butt and another v. The State through Prosecutor-General, Sindh and 2 others 2014 PCr.LJ 1093; Younus Abbas's case PLD 2016 SC 581; Khizar Hayat and others v. Inspector General of Police (Punjab) Lahore and others PLD 2005 Lah. 470; Habibullah v. Political Assistant Dera Ghazi Khan and others 2005 SCMR 951; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Muhammad Saleem's case 1994 SCMR 2213 and Mushtaq Ahmad's case PLD 1973 SC 418 rel.
Amjad Ali Sahto for Petitioner.
Allah Bachayo Soomro, Additional A.G. Sindh for Respondent No.1.
Syed Zulfiqar Ali Shah for Respondent No.2.
2018 Y L R 329
[Sindh]
Before Zafar Ahmed Rajput, J
FARHAN KAMRANI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1722 of 2016, decided on 23rd February, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 419 & 500---Prevention of Electronic Crimes Act (XL of 2016), S. 21---Cheating by personation, defamation, damaging modesty of a natural person---Bail, refusal of---Complainant had alleged that accused made fake Facebook identity of complainant and superimposed her photographs onto porn videos/ photographs---Investigating agency's officials found incriminating material regarding alleged Facebook identity of complainant on personal computer of accused---Argument of counsel for accused that alleged offence would fall under S.20 of Prevention of Electronic Crimes Act, 2016 had no force---Prosecution had rightly charged the accused with the offence under S.21 of Prevention of Electronic Crimes Act, 2016---Although offence under S.21 of Prevention of Electronic Crimes Act, 2016 did not fall within prohibitory clause of S.497 yet accused would not be entitled to concession of bail because he was connected with offence which seriously affect the whole society---Bail was refused accordingly.
(b) Prevention of Electronic Crimes Act (XL of 2016)---
----S. 20---Offences against dignity of a natural person---Scope---Section 20 of Prevention of Electronic Crimes Act, 2016 provided for the punishment for offences of exhibiting, displaying or transmitting intentionally and publically false information and intimidating or harming the reputation or privacy of a natural person through any information system.
(c) Prevention of Electronic Crimes Act (XL of 2016)---
----S. 21---Offences against modesty of a natural person and minor---Scope---Section 21 of Prevention of Electronic Crimes Act, 2016 provided for the punishment of offences of intentionally and publically exhibiting, displaying or transmitting any information by superimposing photographs of the face of a natural person over any sexually explicit image or video, including a photograph or a video of natural person in sexually explicit conduct etc.
Salahuddin Khan Gandapur for Applicant.
Muhammad Javed K.K., Assistant Attorney General for the State.
Altamash Arab for the Complainant.
2018 Y L R 338
[Sindh]
Before Aftab Ahmed Gorar, J
SHAH ALAM---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1329 of 2017, decided on 25th September, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonour of cheque---Bail, refusal of---Admittedly, there was business transaction between accused and complainant---Disputed amount was admitted by the accused---Accused returned part of the amount to the complainant and issued postdated cheques for the balance, which were dishonoured by the Bank---Issuance of cheque with dishonest intention would not entitle the accused for bail on the ground that there was monetary dispute between the parties; as the possibility of issuance of cheque with dishonest intention at such stage could not be ruled out---Bail was refused accordingly.
2007 PCr.LJ 78; 2014 YLR 567; 2007 YLR 1709; 2007 SCMR 1392; 2013 YLR 2079; PLD 2013 Lah. 472; 2003 YLR 435; 2014 YLR 1253; 2013 PCr.LJ 1022; 2009 SCMR 174; 2012 PCr.LJ 1956 and 2016 MLD 451 ref.
Shameel Ahmed v. The State 2009 SCMR 174 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497---Bail in case not falling within prohibitory clause of S. 497, Cr.P.C.---Principles---Grant of bail in cases not falling within domain of prohibition clause of proviso to S. 497, Cr.P.C. was not a rule of universal application---Each case had to be decided on its own facts and circumstances---Grant of bail no doubt was a discretion of court, but its exercise could not be arbitrary, fanciful or perverse.
Shameel Ahmed v. The State 2009 SCMR 174 rel.
Saadat Hassan for Applicant.
Waqar Alam Abbassi for the Complainant.
2018 Y L R 360
[Sindh]
Before Adnan-ul-Karim Memon, J
ALI MUHAMMAD and another---Applicants
Versus
The STATE---Respondent
Criminal Revision Application No.154 of 2015, decided on 25th July, 2017.
Criminal Procedure Code (V of 1898)---
----S. 514---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Forfeiture of surety bond and imposition of penalty---Applicant, stood surety for accused person who was released on bail in the sum of Rs. 50,000---Accused absconded after grant of bail and was declared as proclaimed offender---Applicant failed to produce the accused in the court, his surety was forfeited---Application moved by the applicant for release / discharge of surety (Defence Savings Certificate), which was dismissed---Validity---Record showed that applicant stood surety for accused who was his son by executing P.R bond and surety documents in the shape of Defence Savings Certificate---Accused absconded during trial and was declared proclaimed offender by the Trial Court---Applicant/surety was under obligation to ensure attendance of accused on each and every date of hearing before the Trial Court, but he failed to produce him---Trial court had rightly issued notice to the applicant/surety and subsequently passed the impugned order---Surety had not shown any mitigating circumstances to take lenient view in the matter---Once accused jumped off the bail and violated terms of the bond, the entire surety amount would become liable to be forfeited in the absence of any mitigating circumstance---Circumstances established that no illegality or irregularity existed in the order passed by the Trial Court---Application was dismissed accordingly.
Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.
Sikandar Khan for Applicants.
Zahoor Shah DPG for the State.
2018 Y L R 376
[Sindh (Larkana Bench)]
Before Adnan-ul-Karim Memon, J
ABDUL BARI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-591 of 2016, decided on 16th June, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 506(2), 148 & 149---Qatl-i-amd, criminal intimidation, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused was charged to have actively participated in alleged crime by stabbing deceased with knife---Postmortem report supported the prosecution case---Witnesses had fully supported case of complainant who did not seem to have any ostensible reason to falsely implicate the accused---Plea taken by counsel for accused that accused was initially let off and his name was placed in column No. 2 of final report submitted under S. 173, Cr.P.C. was of no help because said report was not approved by the Magistrate---No benefit of plea of previous enmity could be granted to accused at bail stage---Ground taken by counsel for accused that co-accused had already been granted bail by Trial Court had no force in the circumstances---Prima facie, sufficient incriminating material was available on record connecting accused with commission of crime therefore, accused was not entitled to grant of bail on ground of further inquiry---Case of accused was hit by prohibition contained in S. 497(1), Cr.P.C.---Bail was refused accordingly.
Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.
Habibullah G. Ghouri for Applicants.
Syed Sardar Ali Shah, A.P.G. for the State.
Saeed Ahmed Bijarani for the Complainant.
2018 Y L R 397
[Sindh]
Before Muhammad Shafi Siddiqui and Abdul Maalik Gaddi, JJ
MUHAMMAD FAIZAN AMJAD---Petitioner
Versus
SECRETARY, BOARD OF SECONDARY EDUCATION, KARACHI and 3 others---Respondents
Constitution Petition No.D-3519 of 2015, decided on 28th April, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Educational institution---Correction in the educational record was sought---Laches, doctrine of---Applicability---Contention of petitioner was that his name was "F" son of "D" with date of birth as 25-08-1987---Petitioner had not produced any authenticated and valid documentary evidence that before issuance of Admit Card his real name was "F" son of "D"---Educational record of the Institution was based on the information and documentary evidence produced by the petitioner himself---Nothing was on record that name of petitioner and his father was mentioned due to mistake or error in the educational record of the Institution---Courts below had already given verdicts on merits on the same issue against the petitioner---Constitutional jurisdiction could not be invoked as substitute to statutory remedy against such orders---Mere fact that upon perusal of evidence High Court came to another conclusion would not furnish a valid ground for interference in such orders---Appellate Court had decided the appeal of petitioner and no revision had been filed---Constitutional petition had been filed after expiry of more than nine years which was hit by doctrine of laches---Constitutional petition was dismissed in circumstances.
Jawad Mir Muhammad and others v. Haroon Mirza and others PLD 2007 SC 472 rel.
S. Osaf Ali for Petitioner.
Masroor Ahmed Alvi for Respondent No.1.
Tajammul Hussain Lodhi for Respondent No.2.
Chaudhry Muhammad Rafiq Rajorvi, Addl. A.G.
2018 Y L R 417
[Sindh]
Before Aftab Ahmed Gorar, J
Sardar MUHAMMAD AZAD KHAN and another---Applicants
Versus
The STATE---Respondent
Criminal Bail Application No.580 of 2017, decided on 10th October, 2017.
Criminal Procedure Code (V of 1898)---
---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 14 & 15---Possession of narcotic drugs, export and trafficking of narcotic drugs, aiding, abetment or association in narcotic drugs---Bail, refusal of---Huge quantity of narcotic drugs was recovered from a container shipped from one country to another---Scrutiny of shipment showed that documents, cell numbers, emails of both the accused persons were found involved in commission of offence---Accused was unable to point out any mis-reading, non-reading of material and law on the subject---One out of the two accused persons was previous convict in a narcotic case, said fact was conceded by accused---No enmity, ill-will or grudge was alleged against prosecution witnesses and sufficient material was brought by prosecution on the record---Bail was refused accordingly.
[Case-law referred].
Muhammad Riaz Abbasi for Applicants.
Habib Ahmed, Special Prosecutor ANF for the State.
2018 Y L R 425
[Sindh (Sukkur Bench)]
Before Khadim Hussain M. Shaikh, J
HAFEEZ AHMED and 8 others---Applicants
Versus
His Highness Mir ALI MURAD KHAN TALPUR and 5 others---Respondents
Civil Revision Application No.S-136 of 2009, decided on 2nd June, 2017.
(a) Sindh Land Revenue Act (XVII of 1967)---
----S. 172---Civil Procedure Code (V of 1908), O.VII, R.11---Correction of revenue record by Revenue Officer---Jurisdiction of civil court---Scope---Suit for declaration---Plaint, rejection of---Scope---Suit was filed against the order of Revenue Officer but plaint was rejected---Validity---Function of Revenue Officer was to prepare the correct Revenue record in the light of evidence with regard to one's title or interest---Jurisdiction of Civil Court was barred in matter of correction of entries made by the Revenue Officer---Member, Board of Revenue had passed impugned order after verifying the original record---Civil Court's jurisdiction was barred to call in question said order---Declaratory relief was discretionary in nature---Plaintiff who sought discretionary relief must come to the Court with clean hands---Plaintiffs had claimed their right and title over the suit property on the basis of fabricated and false entry---Basic entry had been held to be fabricated and false by the Member, Board of Revenue after verification of original record---No cause of action had accrued to the plaintiffs to call in question the said order by filing of declaratory suit---Incompetent suit should be buried at its inception---Parties coming before the Court were required to place before it all facts and necessary material---When such facts and material were brought to the notice of Court, same could be deemed to be part of plaint even if not pleaded and placed before the Court---Plaintiff could not exonerate him from the operation of law---Plaint not disclosing such material facts could be rejected by taking into consideration the said facts judicially noticeable---Both the Courts below had looked into the admitted/ undisputed documents and facts and rightly rejected the plaint---Order VII, R. 11, C.P.C. could be applied for rejection of plaint irrespective of the fact that whether suit was at stage of disposal of interlocutory application or even it was somewhat earlier stage---No illegality or infirmity or jurisdictional defect had been pointed out in the impugned orders passed by the Court below---Revision was dismissed in circumstances.
S.M. Shafi Ahmad Zaidi v. Hassan Ali Khan 2002 SCMR 338; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122 Province of West Pakistan v. Haji Muhammad Juman and another PLD 1960 (W.P) Kar. 908; Rais Dil Murad Khan v. Ali Nawaz and others 1997 MLD 1309; Alam Sher. through Legal Heirs v. Muhammad Sharif and 2 others 1998 SCMR 468 and Ghulam Muhammad v. Mst. Rasoolan Bibi 1996 MLD 256 ref.
Haji Nek Mohammad v. Province of West Pakistan and 12 others PLD 1966 (W.P.) Kar. 314; Sardar Khan v. Ghulam Hussain and others 2003 YLR 1788; Raja Ajaib Khan v. Soofi Allah Ditta and 4 others 1998 SCMR 471; Shaukat Ali v. Jalal-ud-Din and others 1999 CLC 1396; Muhammad Ramzan and others v. Member (REV.)/CSS and others 1997 SCMR 1635 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.
(b) Sindh Land Revenue Act (XVII of 1967)---
----Ss. 4 & 5---Powers of Board of Revenue---Scope.
By virtue of Section 4 of the Sindh Land Revenue Act, 1967, the Board of Revenue is vested with general superintendence and control over all Revenue Officers and under section 5 thereof, the Board of Revenue is a controlling authority in all the matters connected with the administration of land, collection of land revenue, preparation of land records and other matters relating thereto and under subsection (2) of section 5 thereof, the Board of Revenue is constituted the highest Court of appeal and revision in the revenue cases in the province. Thus, the Board of Revenue being the highest Court of Revenue hierarchy in the province has been conferred vast powers of revisions in respect of all the orders, passed by the subordinate Revenue Officers including Commissioner, and, therefore, the Member, Board of Revenue, when exercising his controlling jurisdiction over his subordinate officers and in the exercise of revisional jurisdiction, can pass any order in the circumstances of the case.
A.R. Farooq Pirzado and Syed Jaffar Ali Shah for Respondent No.1.
Agha Athar Hussain, Asst. A.G. for the State.
2018 Y L R 461
[Sindh]
Before Fahim Ahmed Siddiqui, J
VIKASH---Appellant
Versus
The STATE---Respondent
Cr. Appeal No.418 of 2016, decided on 11th July, 2017.
(a) Probation of Offenders Ordinance (XLV of 1960)---
----S. 5---Sindh Arms Act (V of 2013), S. 23(i)(a)---Possessing unlicensed arms---Reformation and rehabilitation of tender aged offender---Scope---Accused had claimed his age as seventeen years and by appearance, he seemed to be of tender age---Provision of Probation of Offenders Ordinance, 1960 was a reformative measure and its object was to reclaim amateur offenders who, if spared the indignity of incarceration, could be usefully rehabilitated in the society---Accused, in the present case, was amateur and a novice offender, therefore it would be beneficial for him and the society alike to place him on probation---Accused was given under the supervision of Probation Officer for one year while maintaining his sentence---Accused being a Christian, he would perform the community service by participating in arrangements of 'Sunday Service of Worship' or 'Sunday Mass' in the church of his choice---Accused had to give assistance in cleaning and arranging the pews in the prayer hall and other ancillary work along with the regular staff and/or volunteers of the said church---Appeal was disposed of accordingly.
(b) Probation of Offenders Ordinance (XLV of 1960)--
----Preamble---Object of the Ordinance---High Court observed that probation system was usually considered as a boon for some of the selected offenders but it was more than such limited scope---Said system provided means of rehabilitation without the necessity of breaking up the offender's normal life and removing him from the natural surroundings of his home---Such system could be used as a tool to raise the status of a convicted offender by making him a useful member of the society---Institution of probation could be used for recompensing the society if it was integrated with community services for the benefit of the society.
Ghulam Dastagir and 3 others v. The State PLD 2014 Bal. 100 rel.
Nadeem Ahmed Azar for Appellant.
Ali Haider Saleem, APG for the State.
2018 Y L R 469
[Sindh (Larkana Bench)]
Before Fahim Ahmed Siddiqui, J
TALIB HUSSAIN JATOI---Appellant
Versus
The STATE---Respondent
Crl. Appeal No.S-48 of 2007, decided on 12th May, 2017.
(a) Criminal trial---
----Proof---Serious offence---More serious the offence, the stricter the degree of proof---Higher degree of assurance was required to convict the accused in such a situation.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Occular account belied by medical evidence---Prosecution case was that the accused party armed with firearms fired upon the complainant party, due to which a member of complainant party sustained firearm injuries and thereafter succumbed to the injuries---Motive behind the occurrence was a previous dispute between the parties---Ocular account was furnished by the witnesses including complainant---Medical evidence had come on the record through medical officer, who conducted the postmortem of the deceased---Witnesses of ocular account deposed that the accused-appellant had fired upon deceased from a distance of 3/4 paces while Medical Officer in his cross-examination disclosed that the deceased received firearm injury within three feet---Medical Officer did not notice any blackening, charring or even tattoo marks around any of the injuries---In such a close distance of firing, at least charring had to be seen---Eye-witness had stated that the accused-appellant repeated fire on the deceased which hit him on his left shoulder but in postmortem report no such injury was mentioned by Medico Legal Officer---Complainant in his deposition had stated that the deceased received a second shot on his abdomen---Other eye-witness had stated that deceased received second shot on his back---Major contradictions existed in respect of seats of injuries as the complainant, eye-witnesses and Medical Officer were not in harmony with each other---Complainant and eye-witnesses had stated that they identified the accused persons in the headlight of motorcycle rickshaw, which was a weak source of identification---Record showed that neither the rickshaw nor headlight was produced before the Trial Court as the important article on which the identification of accused rested---Non-collecting of the said article, which was the only source of identification, during investigation and non production of the same before the court was fatal for the case of prosecution---Circumstances established that statements of the witnesses were not in line with each other as well as with the medical evidence, as such prosecution failed to prove the ocular account beyond any shadow of doubt---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.
Amin Ali and another v. The State 2011 SCMR 3233; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Umar Hayat and 3 others v. The State 1997 SCMR 1076; Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; The State v. Muhammad Yaqoob and others 2001 SCMR 308; The State/Anti-Narcotics Force, Regional Directorate, Sindh through Deputy Director (Law), Clifton, Karachi, v. Shakeel Ahmed Siddiqui PLD 2003 SC 916 ref.
Basar v. Zulfiqar Ali and others 2010 SCMR 1972; Nawab and 4 others v. The State 2002 PCr.LJ 915 and Haleem and others v. The State 2017 SCMR 709 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Scope---Prosecution case was that the accused and his co-accused were armed with Kalashnikovs but during investigation, recovery of Kalashnikov was not effected from the accused-appellant---Despite the fact that accused-appellant remained in custody for a considerable period of time, nothing had come on record regarding the non-recovery of said weapon---Recovery of the crime weapon, in such like case, and the production of the same-during trial was necessary as a corroborative piece of evidence---Such circumstances created doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused-appellant---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive---Prosecution had alleged that motive for the occurrence was previous dispute between the accused-appellant and deceased, which was settled on Holy Quran but accused-appellant could not root out the animosity from his heart, which resulted in the incident---Said motive was abandoned by the prosecution during trial and nothing about the same was said by any of the prosecution witnesses---Nothing was available on record that the accused-appellant or other accused persons were known for criminal activities---Motive could be weak, but it was required to be established during trial---Circumstances established that prosecution failed to prove the motive---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(e) Criminal trial---
----Motive---Abandoned motive---Scope---Abandoning a motive, once taken was fatal to the case of the prosecution.
Rashid Mustafa Solangi for Appellant.
Abid Hussain Qadri for the Complainant.
Sardar Ali Rizvi, A.P.G. for the State.
2018 Y L R 482
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J
Syed ALTAF HUSSAIN SHAH---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.S-125 of 2015, decided on 14th September, 2017.
(a) 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, criminal misconduct committed by public servant---Appreciation of evidence---Delay of about one year in lodging FIR---Effect---FIR had been registered after the delay of about one year---No satisfactory explanation had been furnished for such delay---False implication of the accused could not be ruled out in circumstances.
(b) 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, criminal misconduct committed by public servant---Appreciation of evidence---Benefit of doubt---Accused was Food Inspector at the relevant time and he was charged for the shortage of wheat bags and said shortage allegedly was because of misappropriation by him----Accused had already deposited embezzled amount in the Bank in the account of the department as per policy of the department---Accused contended that his trial amounted to double jeopardy---Validity---Allegedly, accused was responsible for the shortage of the stock---Stocks stored by the accused and quantity misappropriated by him was worth Rs. 54,900---Record showed that deficiencies and lapse on the part of the accused had been compensated by him by depositing the amount of Rs. 54,900/- in the government account---Said amount was deposited prior to the registration of the FIR, which showed bona fides of the accused---Since the amount with regard to the shortage of loss to the government had already been deposited by the accused as per policy of the department, even then the accused had been challaned, therefore, his case had fallen within the definition of double jeopardy, which was not permissible under the law---Record transpired that evidence of prosecution was contradictory on material particulars---Whole case of the prosecution rested upon the evidence of interested witnesses and no independent witness had been cited in the case---No expert report on the record was available to show that the stock stored by the accused and quantity misappropriated worth Rs.54,900, which created doubt in the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.
Qasim Mahmood v. State 2017 PCr.LJ 463 ref.
(c) Criminal trial---
----Benefit of doubt---Principle---If there was single circumstance creating reasonable doubt in a prudent mind about guilt of the accused, the accused would be entitled to the benefit not as a matter of grace and concession, but as a matter of right.
Tariq Parvez v. The State 1995 SCMR 1345 and Muhammad Akram v. State 2009 SCMR 230 rel.
Muhammad Zainuddin Baloch for Appellant.
Syed Meeral Shah Bukhari, Addl: P.G. for Respondent.
2018 Y L R 491
[Sindh]
Before Mohammad Karim Khan Agha, J
ALI AHMED LUND---Petitioner
Versus
The STATE through Chairman National Accountability Bureau and another---Respondents
C.P. No.D-5715 of 2016, decided on 14th April, 2017.
National Accountability Ordinance (XVIII of 1999)---
----Ss. 9 (a) (v) & 10---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Constitutional petition---Allegation with regard to accumulation of assets beyond known source of income---Bail, refusal of---Scope---Accused had failed to explain the large transactions which had taken place in his Bank accounts---Accused agreed to enter into a voluntary return with National Accountability Bureau which was rejected--Accused had not come to the Court with clean hands, sufficient material was available to connect the accused with the commission of offence---Bail was refused in circumstances, however, Trial Court was directed to conclude the trial within specific period.
Saeed Ahmed v. The State 1996 SCMR 1132; Brig. (R) Imtiaz Ahmed v. The State PLD 2017 Lah. 23; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Khalid Aziz v. The State 2011 SCMR 136; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63 and Syed Qasim Shah v. The State 2009 SCMR 790 distinguished.
Dr. Farogh Naseem for Petitioner.
Muhammad Altaf, Special Prosecutor NAB for Respondents.
2018 Y L R 503
[Sindh]
Before Adnan-ul-Karim Memon, J
MUHAMMAD AKRAM---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.918 of 2017, decided on 25th July, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Bail application---Adjudication--Principles---Court, while deciding bail application would consider allegations made in FIR, statements recorded under S. 161, Cr.P.C., nature and gravity of charge; other incriminating material against accused; legal pleas raised by accused and relevant laws.
Shahzad Ahmed v. The State 2010 SCMR 1221 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 21 & 51---Possession of narcotic drugs---Bail, refusal of---Accused was arrested red-handed with possession of charas and heroin---Chemical Examination Report supported the prosecution case---Recovery of charas and heroin was duly witnessed by police officials who were as good witnesses as any other person---Police had no ostensible reason to falsely implicate accused---Case of accused was hit by prohibition contained in S. 51, Control of Narcotic Substances Act, 1997---Alleged offence was punishable with life imprisonment---Accused had not made out a case for grant of bail---Bail was refused accordingly.
Muhammad Hanif v. The State SBLR 2016 Sindh 29 and Ghulam Murtaza v. The State PLD 2009 Lah. 362 ref.
Socha Gul v. The State 2015 SCMR 1077 rel.
Mehmood Habibullah for Applicant.
Shafique Ahmed, Special Prosecutor for ANF for Respondent.
2018 Y L R 560
[Sindh]
Before Muhammad Junaid Ghaffar, J
KATHIAWAR COOPERATIVE HOUSING SOCIETY LTD. through Member Managing Committee and another---Plaintiffs
Versus
PROVINCE OF SINDH through Secretary and 3 others---Defendants
Suit No. 677 of 2015, decided on 8th February, 2017.
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Cooperative Housing Society---Allotment of amenity plot for establishment of a girls high school---Terms and conditions of allotment---Subsequent lease of said plot---Applicability of conditions of allotment to the said lease---Temporary injunction, grant of---Plot in question was allotted and not sold or auctioned to the defendants---Said allotment was on cost to cost basis and only development charges were recovered---Allotment of plot in question was made for the betterment of area residents including establishment of a girls high school---Parties could not be allowed to change the conditions and understand-ing executed between them---Conditions attached to allotment were tool for safeguarding the interest and well-being of the residents of Housing Society---Purpose of incorporating conditions in allotment was to enable the Housing Society to take appropriate actions in accordance with law for any breach of such conditions if committed---If allotment had some restrictions then subsequent lease deed could not be read in isolation viz-a-viz the allotment---Allotment conditions were in conformity with the main agreement as well as sub-lease---Said conditions could neither be ignored nor it could be said that same were not applicable to the subsequent lease---Plaintiffs had made out a prima facie case and balance of convenience was in their favour---Plaintiffs would suffer irreparable loss if injunctive relief was refused---Application for grant of temporary injunction was allowed in circumstances.
Subedar Manzoor Hussain (deceased) Through LRs. v. Mst. Mehmooda Begum (deceased) through LRs., PLJ 2004 SC 439; Morris Tanvir v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad and 2 others 2009 CLC 1199; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101 and American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 rel.
Khawaja Shamsul Islam for Plaintiffs.
Salahuddin Ahmed for Defendant No.3.
Arshad Tayeably and Shahzad Ashraf for Defendant No.4.
Ms. Kalpana Devi, A.A.G. for Defendant No.1.
2018 Y L R 610
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J.
GHULAM ALI KHASKHELI---Applicant
Versus
The STATE---Respondent
Criminal Revision Application No.S-108 of 2015, decided on 25th May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 514---Bail bond, forfeiture of---Petitioner/surety was under legal obligation to discharge its liability under the bail bond furnished by him---Surety, after undertaking the liability, could not say that on account of his financial condition, he could not pay the amount of bond executed by him and stood surety due to his benevolence without any monitory gain---No embargo existed that amount of bail bond in full could not be forfeited in a case where the accused had jumped bail bond---Surety was liable to produce the accused in Court on each and every date of hearing in view of the undertaking given at the time of furnishing surety; and if he failed to produce the accused before Court, penalty could be imposed upon him after observing all legal formalities---Trial Court, in the present case, had already taken lenient view by reducing amount of surety bond from Rupees three lac to two lac each---Surety did not deposit the reduced amount of the bond despite expiry of two years which showed mala fide on the part of surety---Impugned order of forfeiture of bond was correct, proper and legal and did not call for any interference by High Court in its revisional jurisdiction---Criminal revision petition was dismissed accordingly.
Naseer Muhammad v. The State 1996 PCr.LJ 860 ref.
Zeeshan Kazmi v. The State PLD 1997 SC 267 and Ghulam Dastagir and 3 others v. The State PLD 2011 SC 116 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 514---Surety bond, forfeiture of---Scope---Surety, after undertaking the liability, could not say that on account of his financial condition, he could not pay the amount of bond executed by him and he/she stood surety due to his benevolence without any monitory gain.
(c) Criminal Procedure Code (V of 1898)---
----S. 514---Surety bond, forfeiture of---Scope---No embargo existed that amount of bail bond in full could not be forfeited in a case where accused had jumped the bail.
(d) Criminal Procedure Code (V of 1898)---
---S. 514---Surety bond, forfeiture of---Scope---Surety was liable to produce the accused in court on each and every date of hearing in view of the undertaking given at the time of furnishing surety and if he failed to produce accused before Trial Court, penalty could be imposed upon him after observing all legal formalities.
Ms. Fareeda Naz for Applicant.
Shahid Ahmed Shaikh, A.P.G. for Respondent.
2018 Y L R 649
[Sindh]
Before Mrs. Ashraf Jahan, J
IMRAN AHMED---Petitioner
Versus
Mst. MADIHA YOUNUS and 2 others---Respondents
C.P. No.S-2210 of 2017, decided on 6th December, 2017.
Guardians and Wards Act (VIII of 1890)---
----Ss.17 & 25---Application for custody of male minors above the age of seven years by mother---Preference of minors---Scope---Minors were living with father and step-mother since birth---Effect---Welfare of minors--- Scope--- Petitioner/father contended that both the courts below had wrongly granted custody of minors above the age of seven to the mother---Respondent/mother contended that there was no substitute for mother's lap---Validity---Record revealed that father had moved application under S.17(3)(5) Guardians and Wards Act, 1890 before Family Court and appellate court praying to record the statements of minors but request was disallowed for no cogent reasons---While deciding the issue of custody of minor Court had to consider all the circumstances---In the present case, admittedly, the minors were living with their father since 2015, when the parents of the minors started living separately and finally the marriage was dissolved by way of Khulla the same year---Father was a natural guardian of minors and with him the children were living since their birth and there was step-mother and grandmother to look after their well-being and there were no adverse allegations against their attitude towards minors---Right of Hizanat lay in favour of mother only up to seven years in case of male child, admittedly in the present case both the minors were more than seven years of age---High Court during the course of hearing sent both the parents out of the Court room and one by one both of minors were asked to disclose their preference as they looked intelligent enough to form their opinion---Minors disclosed about their schooling, their daily routine and repeatedly expressed their wish to live with their father as they were being properly looked after by their grandmother, step-mother and father---Preference of the minors could not be ignored altogether and had to be given due importance---Minors needed supervision of their father at such growing age to groom properly---High Court observed that welfare of the minors, in the present case, lay with the father while charting out visitation schedule for mother to meet them occasionally---Impugned orders passed by the two Courts below were set aside---Constitutional petition was allowed accordingly.
Shahid Hussain Soomro for Petitioner.
Rana Muhammad Arshad for Respondent No.1.
2018 Y L R 661
[Sindh]
Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J
ASIF KHAN---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos.118, 119 and 252 of 2016, decided on 8th May, 2017.
Anti-Terrorism Act (XXVII of 1997)---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Act of terrorism, making or keeping explosive substances with intent to endanger life or property---Appreciation of evidence---Benefit of doubt---Prosecution case was that hand grenades were recovered from the possession of the accused-appellants---Prosecution produced three witnesses in order to prove the charge and alleged that accused-appellants were arrested on the spot---Accused-appellants had contended that they were arrested by the Rangers from their places of residence and after being detained for days, were handed over to the police and then falsely implicated in the present cases---Prosecution evidence showed non-availability of private witnesses at the time of arrest of accused and recovery of hand grenades---Prosecution witnesses during cross-examination had deposed that accused-appellants were arrested from thickly populated area and there were other persons available at that time on the road but no independent person was engaged as a witness---Prosecution alleged that private persons were not willing to come forward---FIRs as well as memo of arrest and seizure were bereft of any description of the hand grenades said to have been recovered or any details as to identifying marks or numbers thereon---Clearance certificate of Bomb Disposal Unit and inspection reports of the hand grenades clearly identified the grenades by mentioning the numbers, description and marks available thereon---Facts and circumstances of the case coupled with the absence of any prior criminal record of the accused-appellants, created doubt as to the veracity of the prosecution's case, benefit of which would resolve in favour of accused-appellants--- Accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court.
Nadeem Pirzada for Appellant (in Special Criminal Anti-Terrorism Appeal No.118 of 2016).
Abrar Khichi, A.P.G. for Respondent (in Special Criminal Anti-Terrorism Appeal No.118 of 2016).
Nadeem Pirzada for Appellant (in Special Criminal Anti-Terrorism Appeal No.119 of 2016).
Abrar Khichi, A.P.G. for Respondent (in Special Criminal Anti-Terrorism Appeal No.119 of 2016).
Nadeem Pirzada for Appellant (in Special Criminal Anti-Terrorism Appeal No.252 of 2016).
Abrar Khichi, A.P.G. for Respondent (in Special Criminal Anti-Terrorism Appeal No.252 of 2016).
2018 Y L R 672
[Sindh]
Before Adnan-ul-Karim Memon, J
IFTIKHAR GADAR---Applicant
Versus
The STATE---Respondent
Cr. Bail Application No.330 of 2017, decided on 4th July, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 408, 420, 468 & 471---Criminal breach of trust by servant or clerk, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail before arrest, refusal of---Documentary evidence--- Scope--- Complainant had alleged that accused, in connivance with co-accused persons, committed manipulation of accounts, misappropriation of funds in millions of rupees---Accused was Chief Financial Officer/Company Secretary who used to sign all the cheques/ vouchers pertaining to accounts of the company as co-signatory---Audit report clearly depicted fraud, forgery and embezzlement of funds of company by fraudulent means---Accused admitted in bail application that he used to counter sign around fifty to one hundred cheques pertaining to company bank account every day which prima facie connected accused with the alleged crime---Documentary evidence also supported case of complainant---Recovery of laptop and other material i.e. cheques and payment vouchers was also prima facie showed involvement of accused in the alleged crime---Case of accused was not hit by prohibition contained in S. 497(1), Cr.P.C. but under given circumstances no extraordinary concession of bail before arrest could be extended to accused---Nothing was available on record which could suggest or indicate false implication of accused in the case---Accused had failed to point out any mala fide or ulterior motive on part of complainant or police---Bail was refused accordingly.
Saeed Ahmed v. The State 1996 SCMR 1132; Dr. Asim Hussain and others v. The State 2017 PCr.LJ 631; Shahid Hussain v. National Accountability Bureau and others 2015 PCr.LJ 883; Nasir Abbas Soomro v. The State 2011 YLR 1236; Muhammad Inam Ali v. The State and another 2011 PCr.LJ 323; Shakir Hussain v. The State PLD 1956 SC 417; Muhammad Bux v. The State PLD 1956 SC 420 and The State v. Shakoor Hashim Patel and others PLD 1960 W.P. Kar. 926 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail---Scope---Pre-arrest bail was an extraordinary relief which was extended in exceptional circumstances when glaring mala fide was shown on the part of prosecution to cause unjustified harassment and humiliation to accused in case of his arrest.
Faraz Fahim and Masood Ali Memon for Applicant.
Muntazir Mehdi, D.P.G. for the State.
Kashif Hanif for the Complainant.
2018 Y L R 697
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J
JALALUDDIN---Appellant
Versus
DILEEP and another---Respondents
Criminal Acquittal Appeal No.S-334 of 2010, decided on 24th August, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 489-F & 506---Dishonestly issuing a cheque, criminal intimidation---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused came to the complainant for loan of Rs. 1,50,000/----Complainant took him to the jewellery shop and bought him gold of Rs. 90,000/----Accused, thereafter paid him instalments of Rs. 26,700/- and issued cheque of Rs. 63,300/-, which was dishonoured by the Bank---Evidence of prosecution witnesses were contradictory to each other on material particulars---Record showed that there was some business transaction in between the parties over loan amount of Rs. 63,300/-, which according to the accused, had already been paid to the complainant---Material placed on record showed that prima facie, no reasonable grounds existed to believe that accused had committed the offence---Reasons for acquittal in favour of the accused given by the Trial Court appeared to be quite sufficient/convincing---Trial Court had passed a speaking order---Appeal against acquittal was dismissed in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 410 & 417---"Appeal against acquittal" and "appeal against conviction"---Principles---Appeals against conviction and acquittal were different from each other---Once accused was acquitted by a competent court of law after facing the agonies of a protracted trial, then he earned the presumption of double innocence, which could not be disturbed by the appellate court slightly.
Aijaz Shaikh for Appellant.
Shahid Ahmed Shaikh, D.P.G. for the State.
Respondent in person.
2018 Y L R 713
[Sindh]
Before Muhammad Faisal Kamal Alam, J
HAMOOD MEHMOOD---Plaintiff
Versus
Mst. SHABANA ISHAQUE and 3 others---Defendants
Civil Suit No.627 of 2017, decided on 10th November, 2017.
Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Ad-interim injunction subject to deposit of balance sale consideration---Object---Non-deposit of balance sale consideration---Effect---Object for giving direction to deposit the balance sale consideration in the Court was to see the bona fides of a purchaser---Injunction in such case was granted so that the corpus of dispute remained intact and ultimately could be transferred to a successful party in litigation---Balance sale consideration was to be invested in some profit bearing scheme enabling the vendor/defendant to get an increased amount as sale consideration---If purchaser/plaintiff was unsuccessful then deposited amount was to be returned back to him with accruals in order to safeguard his interest---Non-deposit of sale consideration would raise adverse presumption against plaintiff that he was not serious in performing his agreed part of contract disentitling him to decree for specific performance---Party seeking remedy of specific performance was to apply to the Court for depositing the balance amount---Any contumacious/ omission in that regard would entail in dismissal of suit or decretal of the same if it was filed by the other side---Plaintiff, in the present case, enjoyed the ad-interim injunctive relief but despite giving ample opportunities and chances to comply with the orders of Court he kept on defying all such directions/orders---One who sought equity must also do equity---Suit was dismissed in circumstances.
M. Ishaq Ali for Plaintiff.
Sathi M. Ishaque for Defendant No.1.
Asif Rasheed for Defendant No.3.
Nemo for Defendants Nos.2 and 4.
2018 Y L R 728
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
Mst. SARWARI and 2 others---Applicants
Versus
The STATE---Respondent
Cr. Bail Appl. No.S-571 of 2016, decided on 25th November, 2016.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Complainant alleged that in-laws of his daughter used to maltreat and torture her and with their common intention she was murdered by her husband by throttling---Relations between the parties were admittedly strained and incident was also unseen---Allegation of murder, prima facie, appeared to be based on suspicion or earlier attitude of the accused persons which might be a circumstance but was not sufficient to qualify the requirement to deny discretion of bail i.e. existence of reasonable grounds to believe that accused was guilty of offence with which he was charged---Tentative assessment of available material showed that entire case depended upon hearsay evidence or at the most circumstantial evidence but no evidence was gathered by prosecution to connect the accused with alleged offence---Main allegation was against the co-accused (husband of deceased) who was in jail---Medical evidence also did not support the version of complainant; no marks of violence were found on the dead body except ligature marks during the medical examination and such fact was also admitted by the Medical Officer who conducted post-mortem examination of deceased---Complainant admitted enmity against accused persons hence plea of false implication could not be ruled out even at bail stage---No specific role was assigned to any of the accused; there was delay in lodging of FIR for which no plausible explanation was furnished by complainant---No sufficient evidence was brought to show that accused persons committed murder of deceased and benefit of doubt could be extended to accused---Accused persons could not be kept behind the bars for an indefinite period even on charge of murder in circumstances---Accused persons succeeded to make out a case for grant of bail under Subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.
Zaigham Ashraf v. State 2016 SCMR 18; Amir v. The State PLD 1972 SC 277 and Manzoor v. The State PLD 1972 SC 81 rel.
Farhad Ali Abro for Applicants.
Shahid Shaikh, A.P.G. for the State.
Complainant present in person.
2018 Y L R 746
[Sindh (Larkana Bench)]
Before Aftab Ahmed Gorar, J
JAN MUHAMMAD---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No. S-272 of 2017, decided on 4th August, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Foreigners Act (XXXI of 1946), S. 14(2)---Illegal entry in the country---Bail, grant of---Accused during interrogation disclosed names of his family members which on verification by NADRA had been found true---Accused, however, was required to prove his own identity of being a citizen/national by producing some tangible evidence---Alleged offence did not fall within prohibitory clause of S.497, Cr.P.C.---Case had already been challaned---Accused was not required for further investigation---Bail was granted accordingly.
Shafi Muhammad Mahar for Applicant.
Abdul Razak Jamali, Assistant Attorney-General for the State.
2018 Y L R 757
[Sindh]
Before Muhammad Farooq Shah and Khadim Hussain M. Shaikh, JJ
MUHAMMAD TAUFIQUE RAZZAQ---Petitioner
Versus
The STATE---Respondent
Constitutional Petition No.D-6837 and Criminal Miscellaneous Application No.215 of 2015, decided on 21st March, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss. 420, 406 & 34---Cheating and dishonestly inducing delivery of property, criminal breach of trust, common intention---Concurrence of Magistrate with police report---Inherent powers of High Court---Scope---Magistrate had approved the police report in class 'C' with the observation that complainant/applicant might avail civil remedy available to him---Validity---Dispute between the parties was over being working partners in a business; said dispute was settled between them with a commitment that after final audit by Chartered Accountant both parties would agree on the balance sheet---Matter involved in the case was purely of a civil nature---Complainant/applicant had been making attempts to convert civil dispute into criminal dispute with intent to put proposed accused in trouble and agony of criminal trial---Petition under S.561-A, Cr.P.C. was dismissed being devoid of merits.
1982 SCMR 788; 1969 SCMR 564 and PLD 1989 SC 435 rel.
Shahid Qadeer for Petitioner.
Abrar Ali Khichi, A.P.G. for the State.
2018 Y L R 768
[Sindh]
Before Zulfiqar Ahmad Khan, J
ABDUR RAHIM A. JAFRY---Plaintiff
Versus
KARACHI PORT TRUST through Chairman and 2 others---Defendants
Suit No.408 of 2007, decided on 14th March, 2017.
Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S. 116---Suit for declaration---Lease---Seeking renewal of lease after its expiration---Dispossession of plaintiff from the suit property---Application for grant of temporary injunction---Scope---Plaintiff had not fulfilled the conditions envisaged by the lease---No case had been made out for grant of temporary injunction---Application for renewal of lease was belated and rent was not paid by the plaintiff in time---Plaintiff was served with a final notice and possession was taken over from him---No fresh agreement was ever entered into between the lessee and lessor---No benefit under S. 116 of Transfer of Property Act, 1882 could be extended to the plaintiff in circumstances---Application for temporary injunction was dismissed in circumstances.
Mrs. Anwar Jehan Qureshi v. Trsutees of the Port of Karachi 2003 CLC 38; PLD 1998 Kar. 373 and PLD 1970 SC 139 ref.
Noor Hussain v. Allah Buksh 1984 SCMR 446 and Muhammad Yousuf v. Abdullah PLD 1980 SC 29 rel.
Abdul Rehman and Abdullah Munshi for Plaintiffs.
Mushtaq A. Memon for Defendants.
2018 Y L R 786
[Sindh (Hyderabad Bench)]
Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ
MUHAMMAD ISHAQUE---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.D-22, Criminal Jail Appeal No.D-23 and Confirmation Case No.5 of 2013, decided on 30th May, 2017.
(a) Penal Code (XLV of 1860)---
----S. 338---Criminal Procedure Code (V of 1898), S. 537---Isqat-i-hamal---Finding or sentence when reversible by reason of error or omission in charge or other proceedings---Record showed that the charge was silent in respect of the offence under S. 338, P.P.C. and as such the accused was not put on notice that he was defending such offence---Offence having not been mentioned in the charge, accused might have been misled in not preparing a defence in that regard---Accused was acquitted for the offence under S. 338, P.P.C.
(b) Criminal trial---
----Witness--- Improvements in the statement of witness--- Effect---Improvements made in the evidence were minor in nature and had not been materially altered by the evidence given at trial---Such improvements would have no effect.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Evidence---Single witness---Principle---Accused could be convicted on the evidence of one eye-witness alone provided that such eye-witness was found to be reliable, trustworthy and confidence inspiring.
[Case-law referred].
(d) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Accused was charged for the murder of five persons by firing---Motive for the occurrence was a dispute between accused and one of the deceased on the landed property---Ocular account was furnished by three witnesses including complainant---Said witnesses corroborated each other as there was no material difference in their evidence, as such, they could not be considered as chance witnesses---Witnesses of ocular account had given reasonable, believable and corroborated explanations as to why they were present at the place of incident---Record showed that FIR was lodged after forty five minutes of the incident as such the prospect of a chance witness was ruled out as there had been insufficient time to fabricate a false case---Eye-witnesses stated that they had been awaken by the shots and it would have taken them some minutes to reach the scene of crime---Evidence of said witnesses showed that they had witnessed general firing on all---Testimony of said witnesses showed that they had seen the incident through a bulb light from relatively close range and quite reasonably explained that they did not intervene because they were all unarmed whilst the accused was armed and was firing---Witnesses knew the accused as he was a relative and a neighbour and thus were able to easily recognize him---Evidence of eye-witnesses were found to be confidence inspiring and none of them was damaged on cross-examination and therefore their evidence alone was sufficient to convict the accused---Appeal against conviction was dismissed in circumstances.
[Case-law referred].
(e) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Medical evidence showed that all five of the deceased died of firearms injuries which corroborated the ocular account---Inquest reports completed by the police matched the cause of death and the post mortems were carried out promptly and all other official documentation in respect of the death and injuries had been placed on record and had not been disputed in any meaningful way---Circumstances established that medical evidence was corroboratory of the oral evidence.
(f) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Contradictions in the statement of prosecution witnesses---Effect---Record showed that some contradictions were found in the evidence of prosecution witnesses in respect of timing of the incident---Said contradictions were of minor in nature, which could be ignored.
[Case-law referred].
(g) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Motive---Proof ---Motive for the occurrence was that one of the deceased had agricultural property dispute with the accused as deceased was not handing over signed documents of the transfer of the property to the accused---Said fact would also tie in with the need of the accused to kill all the members of the deceased family, four of whom were male and thus would have had inheritance rights if only head of family was killed---Said fact had been admitted by the accused in his confessional statement---Circumstances established that accused had a motive to kill all five of the deceased.
(h) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Delayed ballistic and chemical report---Reliance---Scope---Record showed that the ballistic report was sent after a delay of one month---Said delay could not be considered to be of particular relevance, because the murder weapon (TT pistol) was recovered from the accused, which was not denied---Said TT pistol was registered in the name of the accused, and as such, there was no question that the pistol was foisted upon him---Ballistic report showed that the recovered empties, which were sealed and were kept in safe custody, came from the pistol of accused and none other---Circumstances established that the ballistic evidence supported the prosecution case. [
[Case-law referred].
(i) Penal Code (XLV of 1860)---
----S. 302---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Judicial confession of accused---Reliance---Scope---Record showed that Judicial Magistrate recorded the confessional statement of the accused---Said statement was taken in accordance with the law and was legally valid---Accused had himself admitted in his own evidence of making the statement although he claimed the same to be under coercion---Said statement was taken within six hours of the arrest of the accused, thus there was no opportunity for the police to otherwise coerce or torture the accused into confessing---Confessional statement showed that there was no evidence of maltreatment at the time of the confession, which seemed that soon after the incident, the accused was prepared to get the matter off his chest and showed genuine remorse for his actions before he had a chance to consult a lawyer and later resiled from the statement---Accused was admittedly a Police Officer and would have been well aware of the consequences of giving such confessional statement---Defence objected that accused was handed back to the same policemen who brought him for the confession to remand him into judicial custody, which was not legal---Based on the facts and circumstances of the case, said objection was a minor flaw, which did not effect the validity and admissibility of the confession.
[Case-law referred].
(j) Penal Code (XLV of 1860)---
----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Reliance--Scope---Record showed that all the three eye-witnesses stated that deceased lady was in her senses when she was sent to hospital in injured condition---Dying declaration of the deceased as witnessed by the doctor was that the accused killed the deceased by firing---No particular format for dying declaration was noticed; main requirement being that it was made without influence---Dying declaration, in the present case, was made before the doctor, the Investigating Officer, and the person who was dictating the dying declaration and no other person was said to be around the deceased lady at the time when she made it---Circumstances established that legal requirements had been fulfilled for recording dying declaration which was admissible and could be relied upon.
[Case-law referred].
(k) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Testimony of interested witnesses--- Reliance--- Scope--- Defence had objected that interested witnesses had been produced by the prosecution---Effect---Record showed that all the prosecution witnesses appeared to be related to each other in one way or the other, however no evidence had come on record that there was any open enmity or animus between the prosecution witnesses and the accused---Evidence of all the interested prosecution witnesses seemed to be reliable and corroborated by other independent evidence---Alleged aspect of being interested witnesses was not relevant in facts and circumstances of the case.
[Case-law referred].
Syed Tarique Ahmed Shah for Appellant.
Syed Meeral Shah, Addl: P.G. for the State.
Muhammad Jameel Ahmed for the Complainant.
2018 Y L R 848
[Sindh]
Before Nazar Akbar, J
MAL NIGRAN WELFARE ASSOCIATION through Chairman---Plaintiff
Versus
GOVERNMENT OF SINDH through Secretary Agriculture/Chairman and 2 others---Defendants
Suit No.381 of 2003, decided on 19th January, 2018.
Societies Registration Act (XXI of 1860)---
----Ss.1 & 20---Specific Relief Act (I of 1877), Ss.12, 42 & 54--- Suit for specific performance of agreement to sell, declaration and injunction--- Power of court--- Aims and objects of society--- Plaintiff, a welfare association sought direction to authorities to allot plots to its members in new Sabzi Mandi--- Validity--- Civil Court could not pass discretionary decree of specific performance in favour of group of dubious / unidentified plaintiffs in respect of an unidentified immovable property on payment of an unidentified price/sale consideration against defendants who were neither owners nor authorized to sale any immovable property--- Aims and objects of plaintiff association appeared to be only an eyewash or an attempt to defraud statute namely Societies Registration Act, 1860--- For the last 20 years not a single Dispensary or Health Center was established by the plaintiff, therefore, plaintiff association even if it was formed for the 'purpose' described in S.20 of Societies Registration Act, 1860, had failed to take any step in furtherance of its aims and objects--- All other aims and objects of plaintiff were of general utility and did not construe to be an object for any of the 'purpose' for which S.20 of Societies Registration Act, 1860 had been enacted--- Suit was not filed to protect and/or promote aims and objects of plaintiff association--- Objects of association/society which were inconsistent with the provision of S.20 of Societies Registration Act, 1860, were inoperative and had no legal consequences---Plaintiff Association was not entitled to any relief and suit was not maintainable---Suit was dismissed in circumstances.
Messrs MFMY Industries and others v. Federation of Pakistan and others 2015 SCMR 1550 ref.
Shahab Sarki for Plaintiff.
Ms. Leela Kalpana Devi, AAG for Defendant No.1.
Parvez Ahmed Memon for Defendant No.2.
Allotment Officer, the Market Committee for Defendant No.3.
2018 Y L R 869
[Sindh]
Before Adnan-ul-Karim Memon, J
IFTIKHAR GADAR---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1171 of 2017, decided on 11th August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), Ss. 408, 420, 468, 471 & 34---Criminal breach of trust, cheating, forgery, using as genuine a forged document and common intention---Bail, refusal of--- Accused being Chief Financial Officer/co-signatory of the company was allegedly involved in embezzlement of huge amount of company---Accused moved bail application claiming fresh ground of his willingness and readiness to deposit half of the charged amount as security---Effect---Prosecution had conceded the proposal--- Contention of the accused regarding willingness to deposit half of charged amount in court did not make the offence to be automatically bailable---Such payment would not absolve the accused from the allegation levelled against him and neither was the same a fresh ground for being provided at bail stage---Matter being not a civil dispute was not amenable to the wishes of the contesting parties---Charge levelled against the accused was serious and offences were non-compoundable --- Accused was not entitled to the concession of bail---Bail was refused accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S. 497--- Bail--- Fresh ground---Allegation of embezzlement of huge amount by official of company---Readiness of accused to deposit half charged amount---Effect---Such readiness would not absolve the accused from the allegation levelled against him and neither was a fresh ground for being provided with ordinary/discretionary relief at the bail stage.
(c) Criminal Procedure Code (V of 1898)---
----S. 497--- Bail--- Allegation of embezzlement of huge amount of company--- Prosecution conceding offer of the accused to deposit half the amount of embezzled money---Scope---Matter not being a civil dispute was not amenable to the wishes of the contesting parties---Accused was charged with the offences which were non-compoundable---Bail was refused.
Syed Mehmood Alam Rizvi for Applicant.
Abrar Ali Kitchi, D.P.G. along with S.I. Zulfiqar Ahmed of Police Station Mithadar for the State.
Kashif Hanif for the Complaint.
2018 Y L R 876
[Sindh (Sukkur Bench)]
Before Mohammed Karim Khan Agha, J
Haji HUSSAIN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-124 of 2016, decided on 6th March, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497---Bail---Medical grounds---Scope---Ailment with which accused was suffering could not be properly treated in the jail---Specialized treatment was needed and continuous detention of accused in jail was likely to affect his capacity or was hazardous to his life.
Mohammed Yousafullah Khan v. State PLD 1995 SC 58; Mian Manzoor Ahmed Watto v. State 2000 SCMR 107 and State v. Haji Kabeer Khan PLD 2005 SC 364 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 452, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Medical ground---Accused was of seventy nine years of age---Infirmity---Scope---Medical report relied upon was one year and two months old and during such period accused was adequately treated (Hepatitis-C) in jail premises and no material was placed on record thereafter of any deterioration in his health---Accused had placed no material, medical or otherwise on record in support of his infirmity and had simply raised the point of his age---Bail was refused accordingly.
Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Abbas v. The State 2000 SCMR 212; Ghous Ali v. The State 2008 PCr.LJ 647; Haji Allah Ditta v. The State 1987 PCr.LJ 13; The State v. Haji Kabeer Khan PLD 2005 SC 364; Zarin Khan v. The State 1980 SCMR 305 and Shahbazuddin Chaudhry v. The State PLD 2004 SC 785 ref.
Mohammed Yousafullah Khan v. State PLD 1995 SC 58; Mian Manzoor Ahmed Watto v. State 2000 SCMR 107; State v. Haji Kabeer Khan PLD 2005 SC 364; Allah Ditta v. The State 1987 PCr.LJ 13 and Zarin Khan v. The State 1980 SCMR 305 rel.
Abbas v. The State 2000 SCMR 212 and Ghous Ali v. The State 2008 PCr.LJ 647 distinguished.
(c) Words and phrases---
----"Infirm"---Meaning---Not physically strong especially through age.
Oxford English Dictionary 10th Edition ref.
(d) Words and phrases---
----Infirmity--- Meaning--- Impairment of strength or extreme weakness or languor of a disabling nature, a concept totally different from old age.
Haji Allah Ditta v. The State 1987 PCr.LJ 13 ref.
Irshad Hussain Dharejo for Applicant.
Achar Khan Gabole for the Complainant.
Abdul Rehman Koalchi, A.P.G. for the State.
2018 Y L R 911
[Sindh (Hyderabad Bench)]
Before Mohammed Karim Khan Agha, J
IMTIAZ ALI---Applicant
Versus
The STATE---Respondent
Cr. B.A. No.S-174 of 2017, decided on 7th April, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotic drugs---Bail, refusal of---Accused was exclusively caught in possession of charas (narcotic) in a stolen car and charas was undoubtedly was linked to him---Offence fell within the prohibitory clause of S.497, Cr.P.C.---Chemical examination report was positive and any delay in forwarding the chemical report would not be fatal to the prosecution case as R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory---Accused had produced no material to show mala fide on the part of the police and had simply made a bald allegation---Argument of a false and concocted FIR being not sustainable was rejected---Under S. 51, Control of Narcotic Substances Act, 1997 bail could only be granted in such like cases sparingly---Bail was refused accordingly.
Ghulam Murtaza v. State PLD 2009 Lah. 362; Tariq Mehmood v. State PLD 2009 SC 39 and Dolat Khan v. The State 2016 SCMR 1447 rel.
(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---
----R. 4(2)---Despatch of sample for test---Scope---Wordings of R. 4(2) of the Control of Narcotic Substances (Government Analyst) Rules, 2001 was directory in nature.
Tariq Mehmood v. State PLD 2009 SC 39 rel.
Faisal Nadeem Abro for Applicant.
Shahid Ahmed Shaikh, A.P.G. for the State.
2018 Y L R 949
[Sindh (Larkana Bench)]
Before Aftab Ahmed Gorar, J
JUMA KHAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No. S-550 of 2016, decided on 28th July, 2017.
Criminal Procedure Code (V of 1898) ---
----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, confirmation of---Further inquiry---Case of two versions---Accused was not alleged for firing at the deceased---First Information Report was lodged with delay of five days---Another version of same incident had come on record through FIR lodged four days prior to the present FIR---Accused sustained ten injuries on his person---First Information Report of present case after investigation was recommended to be disposed of under "C" class---Motive alleged by complainant did not appear to be sound---Sufficient grounds existed to believe that involvement of accused required further inquiry---Interim pre-arrest bail already granted to accused was confirmed accordingly.
Riaz Ahmed Soomro for Applicant.
Khadim Hussain Khooharo, Addl. Prosecutor General.
2018 Y L R 977
[Sindh (Larkana Bench)]
Before Fahim Ahmed Siddiqui, J
ABDUL SATTAR and another---Petitioners
Versus
The STATE and 3 others---Respondents
Constitutional Petition No.S-457 of 2017, decided on 23rd May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 164---Recording statement of witnesses by the court---Respondent had lodged FIR against the petitioners with the allegations that they while armed with pistols came to a snooker shop, made firing upon the complainant party, resultantly one person injured and thereafter succumbed to the injuries---Complainant filed application before the Judicial Magistrate for recording statements of some prosecution witnesses, which was allowed---Petitioners had alleged that statements of witnesses under S. 164, Cr.P.C. could not be recorded as the names of said witnesses were not mentioned in the FIR---Validity---Statement under S.164, Cr.P.C. could be recorded of any person who was acquainted with the facts of the case and/or any aggrieved person including accused had a right to approach the concerned Judicial Magistrate for recording of such statement---Recording of statement of the witness or witnesses was under the discretion of the Judicial Magistrate---Petitioners could not point out or show that Judicial Magistrate had used his jurisdiction arbitrarily or illegally---Constitutional petition was dismissed.
Mst. Mumtaz Akhter v. Illaqa Magistrate, Chakwal and 2 others 1997 MLD 3021; Mst. Mansab Mai v. the State 2005 YLR 1403 and Muhammad Yousuf v. The State and 12 others 2002 YLR 397 ref.
Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 164---Statement under S. 164, Cr.P.C.---Evidentiary value---Statement recorded under S. 164, Cr.P.C. was not a substantive piece of evidence but could be used for the purpose of contradiction or corroboration.
(c) Criminal Procedure Code (V of 1898)---
----S. 164---Recording of statement under S.164, Cr.P.C---Scope---Witness appearing directly before the Magistrate for the purpose of recording his statement under S. 164, Cr.P.C.---Magistrate was to apply his judicial mind to find out whether the same would be just and proper and best fitted to the circumstances of the case or not---Magistrate, in doing so could consult the case diary to find out the exact position and trend of investigation---Such discretionary powers should be used for the purpose of uplifting the criminal justice without being prejudiced by bais or whims.
(d) Criminal Procedure Code (V of 1898)---
----S. 164---Recording of statement under S.164, Cr.P.C.---Principle---No yardstick could be fixed to describe as to when the statement under S.164, Cr.P.C. would be recorded and when not---Witness/witnesses when produced by Investigating Officer for recording statement under S.164 Cr.P.C., the Magistrate would record his/their statement if the same appeared to be proper and necessary---When the witness/ witnesses, themselves appeared and prayed for recording of his/their statement, the Judicial Magistrate would not readily accept the same but cautiously examine the position and circumstances of the case.
Altaf Hussain Surahyo and Inayatullah Morio for Petitioners.
Ghulam Dastagir A. Shahani for Respondent No.3.
2018 Y L R 987
[Sindh (Hyderabad Bench)]
Before Mohammed Karim Khan Agha, J
ALLAH DINO---Appellant
Versus
The STATE---Respondent
Cr. Jail Appeal No. S-73 of 2012, decided on 18th April, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 504---Qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Delay of about five hours in lodging of FIR---Effect---Complainant had reached the place of incident as her son was dying of stab wound---Fact remained that after the occurrence, it was quite natural for her to immediately assist in arranging transport to take him to hospital just to save his life before contemplating the registration of FIR---Such delay of few hours in reporting the matter to the police was not fatal in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 504---Qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Motive, proof of---Complainant had alleged that they had old enmity with the accused---Complainant had explained during the trial that the accused was pressurizing them to compromise in a murder case of another son of the complainant, whereby a relative of the accused was convicted---Said version of the complainant was corroborated by the witnesses---Circumstances established that accused had a motive to murder the deceased.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 504---Qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Ocular account corroborated by medical evidence---Accused was charged for the murder of son of the complainant---Prosecution produced two eye-witnesses of the occurrence---Evidence of said witnesses corroborated each other and all of them deposed under oath---Depositions of said witnesses remained consistent during cross-examination---Medical Officer, who carried out the post mortem had opined that the deceased was killed by a knife---Prosecution evidence was confidence inspiring and showed a consistent and logical train of events---Recovery of blood-stained knife and positive Chemical Report corroborated the medical evidence---Circumstances established that prosecution had proved the case beyond reasonable doubt---Appeal against conviction was dismissed accordingly.
Zaman v. The State PLD 1985 Lah. 566; Muhammad Irshad v. The State 2002 PCr.LJ 1541; Arshid and another v. Shaman-ud-Din and another 2015 PCr.LJ 1123; Pathan v. The State 2015 SCMR 315; Irfan Ali v. The State 2015 SCMR 840; Muhammad Razzaq v, The State 2008 PCr.LJ 376 and Muhammad Zaman v. State 2014 SCMR 749 ref.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 504---Qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Recovery of weapon of offence---Reliance---Blood-stained knife was recovered from the accused---Said knife was sealed on the spot in the presence of witnesses, which along with blood stained earth was sent for chemical analysis, and report was positive---No evidence was available to show that such samples were tampered with before being sent for chemical analysis---No such suggestion was made during cross-examination of the Investigating Officer---Recovery of weapon of offence could be relied in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss. 302 & 504---Qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Minor discrepancies in the statement of prosecution witnesses---Effect---Record showed that some discrepancies were found in the evidence of prosecution witnesses, but same were not of material or major nature so as to affect the findings of the Trial Court---Evidence recorded after three to four years of the incident, could lead to slight lapses on the part of the witnesses---Such like discrepancies, would not be fatal to the prosecution case.
Zakir Khan and others v. The State 1995 SCMR 1793 rel.
Ms. Nasira Shaikh for Appellant.
Shahid Ahmed Shaikh, A.P.G. for the State.
2018 Y L R 999
[Sindh (Sukkur Bench)]
Before Shahnawaz Tariq, J
SHAHNEEL GUL and 2 others---Applicants
Versus
The STATE---Respondent
Cr. B.A. No.910 of 2015, heard on 19th May, 2016.
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss.489-F & 34---Dishonestly issuing a cheque, common intention---Ad-interim pre-arrest bail, confirmation of---Allegation against accused petitioners was that they purchased 11000 wheat bags from Food Department as per Government policy for their floor mill and cheques were issued---Said cheques on presentation were dishonoured---Record showed that father of accused entered into transaction with the Food Department regarding purchase of wheat and he issued subject cheques in favour of District Food Controller---Later on, dispute over the quality of wheat arose between the parties, against which, suit for declaration and permanent injunction against Food Department was filed, which was sub-judice before the civil court---One of the accused filed application under Ss. 22-A & 22-B, Cr.P.C. before Ex-officio Justice of Peace regarding causing harassment by the Food Department---Said application was disposed of by directing the Food Department to conduct themselves in accordance with law and not to cause any kind of harassment---Subsequently, complainant lodged FIR regarding dishonoring the cheques---Alleged offence was punishable up to three years which did not fall within the ambit of restraining clause of S. 497, Cr.P.C.---Challan had been submitted after completion of investigation---Charge had already been framed against the accused persons and they were regularly appearing before the court and facing the trial---Neither accused persons had misused the concession of bail nor frustrated the trial on any pretext---Trial of the case was being delayed for want of evidence of the complainant and other witnesses---Refusal of bail would not serve any useful purpose, but there was serious apprehension of humiliation and harassment of accused persons at the hands of police---Interim pre-arrest bail already granted to the accused persons was confirmed in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Bail---Principle---Observations made in bail matter was tentative in nature and trial court would decide the case strictly on merits.
Manzoor Hussain N. Larik for Applicant.
S. Sardar Ali Shah A.P.G. for the State.
2018 Y L R 1038
[Sindh (Hyderabad Bench)]
Before Khadim Hussain M. Shaikh and Khadim Hussain Tunio, JJ
NIAZ ALI and 9 others---Petitioners
Versus
PROVINCE OF SINDH through Secretary and 3 others---Respondents
C.P. No.D-3181 of 2016, decided on 31st October, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Factual controversy---Aggrieved person---Scope---Petitioners contended that Auqaf property was being used for commercial purpose by raising construction which needed to be stopped---Respondents/Department contended that the petitioners were land grabbers who had no locus standi to invoke constitutional jurisdiction---Validity---Record revealed that the petitioners did not claim themselves to be lessees or licensees of the subject Waqf property and they were only residents of the locality---Admittedly the property in question, where the subject development scheme was being carried out for the benefit of public-at-large including zaireens/visitors of Dargah with the approval of provincial Government under Annual Development Program, was waqf property---Petitioners had no right or concern whatsoever with the said property and nothing had been brought on the record by the petitioners even to substantiate the allegations leveled by them in their petition, which even otherwise had been specifically denied by the respondents in the written statement---Petitioner seeking remedy under Art. 199 of the Constitution was obliged to establish that he had legal right over the subject property and such right was so clear that it left no room of doubt or any controversy---Matter involving disputed questions of fact could not be entertained and/or allowed to be agitated under constitutional jurisdiction, for, the exercise of extraordinary constitutional jurisdiction under Art. 199 of the Constitution was intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other Authority was floating on the surface, which could be established without any elaborate enquiry into the questions involved in the matter---Present case, in the wake of divergent pleadings of the parties, involved factual controversy which could not be gone into under the constitutional petition and the same was not maintainable---Constitutional petition was dismissed accordingly.
Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 and Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381 ref.
Noor Ahmed Memon for Petitioners.
Sher Shamsuddin Sahito for Respondent No.2.
Allah Bachayo Soomro, Addl: A.G. for the State.
2018 Y L R 1053
[Sindh]
Before Muhammad Faisal Kamal Alam, J
RAZA HUSSAIN through legal representatives and others---Plaintiffs
Versus
MUHAMMAD KHAN and 24 others---Defendants
Suit No.327 of 1966 and Judicial Miscellaneous Application No.Nil of 2005, decided on 15th August, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 12---Suit for specific performance of agreement to sell---Compromise on behalf of defendants---Scope---Transferee of property could not confer upon a transferor a better title than he himself possessed---Defendants had no lawful authority, right or interest at the relevant time in the subject property when they entered into a compromise with the plaintiffs---Neither any appeal was preferred against the partition order nor authenticity or validity of the same was challenged by any of the parties---Possession of suit property was wrongly handed over to the plaintiffs by the Nazir of the Court---Nazir of the Court was directed to take appropriate measures to hand over the possession of suit land to its claimants.
2003 CLC 2050 ref.
(b) Fraud---
----Fraud would vitiate the most solemn proceedings. [p. 1065] A
Khalid Daudpota for Plaintiffs (in Suit No.327 of 1966).
Muhammad Ali Jan for Defendant No.8 (in Suit No.327 of 1966).
Mustafa Lakhani and Yaseen Azad for Defendant No.9 (in Suit No.327 of 1966).
Muhammad Ali Jan for Applicants (in Judicial Miscellaneous Application No.Nil of 2005).
Khalid Daudpota for Respondents (in Judicial Miscellaneous Application No.Nil of 2005).
2018 Y L R 1092
[Sindh ]
Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ
SALMAN alias LAMBA and another---Appellants
Versus
The STATE---Respondent
Criminal Anti-Terrorism Appeals No. 109, 110, 111, 112 and 113 of 2014, decided on 5th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Accused were charged for demanding extortion money from the complainant---Record transpired that prosecution case was based upon the evidence of the complainant, who deposed that he was present at his shop, at 4.30 p.m., a boy appeared at his shop and handed over him a chit on which cell phone number was written---Complainant was asked to call on the said cell phone---Complainant contacted from his phone to the said number---Call was attended by one unknown person, who demanded Rs. 15,00,000/- as Bhatta from the complainant---Calls were thereafter made upon the number of complainant from different mobile numbers---Complainant was not prepared to give such huge amount and felt insecure and went to the police and lodged FIR---Record revealed that accused/appellants were arrested on the basis of spy information that said persons were involved in such activities and were present near graveyard---Police party proceeded to the pointed place and three accused persons were caught hold by the police---Due to non-availability of private persons, police officials were made mashirs and conducted personal search of the accused---During search of accused, two 9-MM pistols, one 30-bore pistol, one hand grenade and six mobile phones were recovered from the accused persons---Police official could not give numbers of the SIMs of the mobile phones, which were recovered from accused persons---All the accused persons had no license for the weapons carried by them---Mashirnama of arrest and recovery was prepared and case property was sealed---Accused persons and case property were brought at police station, where separate FIRs were registered---Investigating officer had collected Call Data Record (CDR) of the mobile phones recovered from the possession of the accused and completed process of verification of the SIMs and National Identity Cards issued by National Data and Registration Authority---Complainant and witness had not implicated any of the accused at trial---Evidence of Police Officials was not trustworthy as the head of the police party had mentioned that he had received spy information that accused were present near the graveyard---Record was silent as to why police despite prior information failed to associate private persons to witness recovery proceedings---Accused were arrested at 2.00 a.m. when they were on motorcycle---Source of identification of the accused at such odd hours of night had not been disclosed by police officer in his evidence so also in the mashirnama of arrest and recovery---Accused armed with sophisticated weapons easily surrendered before police without offering resistance---No evidence had been produced to satisfy that recovered cell phone SIMS were kept in safe custody---Record showed that there was no verification from the mobile companies as to in whose names such SIMs were issued nor the persons in whose names such SIMs were issued were interrogated by the investigating officer---Police officer had produced departure entry in his evidence, but it was without stamp of the police station---In absence of any tangible material, mere allegation of demanding Bhatta did not attract S.6(2)(k) of Anti-Terrorism Act, 1997---Complainant had failed to produce any material to establish that at the time of receiving chit with mobile number, sense of fear, panic, terror and insecurity spread in the area---Anti-Terrorism Court did not have the jurisdiction to try the case of extortion of money "Bhatta"---Record showed that there were material contradictions in the evidence of police officer and mashir of arrest and recovery with regard to the crime weapons and cell phone SIMS recovered from the possession of the accused at the time of their arrest---Circumstances established that there were number of infirmities/lacunae, which had created doubt in the prosecution case, benefit of which would be extended to the accused---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Sagheer Ahmed v. The State and others 2016 SCMR 1754 rel.
(b) Criminal trial---
----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
Mohammad Farooq for Appellants.
Mohammad Iqbal Awan, D.P.G. for the State.
2018 Y L R 1110
[Sindh (Sukkur Bench)]
Before Zulfiqar Ahmad Khan, J
GUL MUHAMMAD---Petitioner
Versus
JARO and another---Respondents
Civil Revision No.72 of 2011, decided on 22nd November, 2017.
Islamic law---
----Pre-emption suit---Talbs, performance of--- Requirements--- Pre-emptor was required to prove Talb-i-Ishhad through two independent witnesses---Right of Shuffa in Islam could not be used as a tool for becoming rich by adding adjoining properties to one's land holdings by forcing the neighboures to compulsorily sell their estates to the claimants---Sharia had made provision of this right to those only who were in desperate need of exercising it to save themselves from 'Zurrer'---Pre-emptor had failed to produce two witnesses of Talb-i-Ishhad---Plaintiff's aim was to add suit property to his richness which act was in violation of fundamentals governing the concept of Shuffa---Right of pre-emption was available to safeguard privacy of Muslim families and to prevent inconvenience which might result from introduction of stranger as a co-partner or neighbour---Pre-emptor, in the present-case, was not owner of adjacent land entitling him to press the claim of pre-emption---No demand had been made in accordance with law---No illegality, irregularity or mis-reading or non-reading had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.
1986 PLD (sic) 458 ref.
Government of N.W.F.P through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; PLD 1995 Kar. 608; Hazrat Muhammad (... .); (No.2153 . Chapter 406, Shahee Muslim Sharif (third volume) by Moulana Muhammad Zikreya Iqbal) and PLD 1990 Kar. 387 rel.
Applicant in person.
2018 Y L R 1142
[Sindh]
Before Nazar Akbar, J
Haji MUHAMMAD YUNUS---Plaintiff
Versus
Haji USMAN through L.Rs. and another---Defendants
Suit No.818 of 1998, decided on 12th January, 2018.
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Limitation Act (IX of 1908), Art. 120---Civil Procedure Code (V of 1908), O. XX, R. 13---Suit for declaration, injunction and partition---Limitation--- Family settlement---Arbitration award---Scope---Claim of ownership or share in the suit property which was never raised by the father of plaintiff in his lifetime could not be raised by one of his legal heirs after twelve years of his death---Share of plaintiff's father in the joint family business had not been handed over to him and his other legal heirs---Plaintiff had no title and right in the suit property and he had prayed for its partition---Validity---Plaintiff should have impleaded his other brothers and sisters as legal heirs of his deceased father and prayed for declaration of joint ownership which he had not done---Plaintiff was bound to explain as to how the relief sought by him in the present suit was within limitation---Present suit did not fall within the ambit of administration of property for which no limitation was applicable---Right to seek declaration of ownership accrued to the plaintiff in the year 1985; plaintiff should have approached the Housing Society within six years for mutation of his share in the record of said society---Limitation to claim ownership in the suit property had expired in July 1991---Right to sue for partition of immovable property would accrue only to the owner against co-owner irrespective of possession---Plaintiff was not owner of suit property and family settlement and arbitration award could not be enforced against lawful owner of immovable property---Mere construction on the suit property did not create right and interest adverse to the owner of said property---Law did not recognize possession of an immovable property as ownership rights---Ownership was dependent on the title document and not on mere residence/ possession of immovable property---Plaintiff had no cause of action or locus standi to file the present suit---Suit was dismissed in circumstances.
Asim Iqbal for Plaintiff.
Anwar Tariq and Riaz Ahmed for Defendant No.1.
M. Akram Javed for Defendant No.2.
2018 Y L R 1164
[Sindh]
Before Nazar Akbar, J
Messrs UNITED BANK LTD.---Plaintiff
Versus
HUSSAIN MUSTAFA and 2 others---Respondents
Suit No.1052 of 2000, decided on 11th December, 2017.
Specific Relief Act (I of 1877)---
---Ss. 42 & 54---Suit for declaration and permanent injunction---Contention of plaintiffs was that defendant had encroached upon the footpath touching the boundary wall of plots owned by them---Validity---Defendant had attempted to encroach upon the footpath adjacent to the boundary wall of the plaintiff's plots---When a litigant had asserted anything as of right in the court of law then he impliedly accepted some corresponding responsibilities---Every citizen had to maintain the environment neat and clean at least around their own immovable properties---Plaintiffs should maintain the footpath around these plots by keeping the boundary walls well-constructed and properly painted---Plaintiffs had failed to discharge their duty to maintain even boundary walls---Suit was decreed and plaintiffs were directed to ensure that boundary walls and footpath around the plots should be maintained from their own sources.
Abdul Haleem Siddiqui for Plaintiff.
2018 Y L R 1172
[Sindh]
Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ
KARACHI PORT TRUST---Appellant
Versus
NATIONAL INSURANCE CORPORATION---Respondent
High Court Appeal No.317 of 2006, decided on 23rd June, 2017.
Karachi Port Trust Act (VI of 1886)---
----S.87---Plaintiff was insurance company and filed recovery of money against Karachi Port Trust (KPT), for causing loss in consignment by short delivery to importer---Suit filed by plaintiff was decreed in its favour by Trial Court---Validity---Importer informed KPT vide letter dated 25-10-1986, about short delivery of consignment and KPT vide its letter dated 9-12-1986 informed importer that consignment was properly stuffed in containers, delivery of 14 containers was taken by Clearing Agent on 23-11-1986 under clean receipt, no compliant was lodged at the time of delivery for missing packages---Same position was spelled out from another document---Joint Survey Report revealed that five cases out of entire consignment were found missing, loss was ascertained, payment was made by plaintiff Insurance Company to importer under letter of subrogation---Correspondence exchanged between importer and KPT suggested that representative of KPT at the time of survey did not note factum of shortage of consignment between relevant time---High Court declined to interfere in the matter as KPT failed to point out any illegality or error in judgment and decree passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances
Trading Corporation of Pakistan (Pvt.) Ltd. v. Messrs S.R. International 2008 CLD 412; Premier Insurance Company of Pakistan and another v. Karachi Shipyard and Engineering Works Ltd. and another 2016 CLD 1983; Rice Export Corporation of Pakistan v. Mohammad Alam 2016 CLC 1326; Messrs Mastersons through its Partner v. Messrs Ebrahim Enterprises and another 1988 CLC 1381; Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi through Chairman and others 1992 CLC 804 and Haji Adam v. Levant Line and 2 others PLD 1959 W.P. Kar. 369 ref.
Muhammad Ahsan Ghani for Appellant.
Muhammad Arif Khan for Respondent.
2018 Y L R 1206
[Sindh]
Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ
ARSHAD TANVEER---Appellant
Versus
SINDH INDUSTRIAL TRADING ESTATES (GUARANTEE) LIMITED through Managing Director and 4 others---Respondents
High Court Appeal No.170 of 2017, decided on 5th September, 2017.
(a) Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Defendant a company incorporated---Absence of pre-conditions--- Plaintiff assailed two notifications approved by Board of Directors of the company (defendant) on the basis of which elections of Board of Directors were to be held---Single Judge of High Court declined to grant interim injunction against notifications in question---Validity---Plaintiff failed to raise and / or avoided to show existence of three important ingredients i.e. 'prima facie case', 'balance of convenience' and 'irreparable loss' in favour of his position---Single Judge of High Court properly refused discretionary relief while dismissing injunction application--- Both the notifications were duly approved and ratified by Board of Directors in its meeting in which meeting plaintiff was also present but he failed to and / or avoided to raise any objection on such decision---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court as the same was not suffering from any legal infirmities---Intra court appeal was dismissed in circumstances.
S. M. Munir and 3 others v. Government of Sindh and others 1996 CLC 370 distinguished.
Muhammad Abid and 2 others v. Nisar Ahmed 2000 SCMR 780 rel.
(b) Specific Relief Act (I of 1877)---
---- S. 54--- Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--- Interim injunction--- Perpetual injunction, non-seeking of--- Effect--- No temporary injunction in absence of any prayer for perpetual injunction can be granted.
Sh. Irshad Ahmad v. English Leasing Ltd. and 6 others 2004 YLR 2700 and Marghab Siddiqi v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 rel.
Abdur Rahman for Appellant.
Mansoor Ali Ghanghro for Respondent No.1.
Nemo for Respondent No.2.
Zubair Ahmed Abro for Respondents Nos. 3 and 4.
2018 Y L R 1238
[Sindh (Sukkur Bench)]
Before Omar Sial, J
MUHAMMAD RAMZAN LUND and another---Applicants
Versus
The STATE---Respondent
Cr. Bail Applications Nos.S-611 and S-730 of 2016, decided on 17th May, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 436, 452, 364, 147, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, mischief by fire or explosive substance with intent to destroy house, house-trespass after preparation for hurt, assault or wrongful restraint, kidnapping or abducting in order to murder, rioting, unlawful assembly, hurt by rash or negligent act---Bail, grant of---Further inquiry---Complainant who was allegedly present in the house with his brother could not identify with accuracy sixty assailants together with their parentage and type of weapons they carried---In spite of the use of arms carried by the assailants which also included at least two or three fires from a rocket launcher, complainant did not receive any scratch---Complainant in the midst of commotion had noted with accuracy the persons who fired and parts of the body of the deceased where their respective fires hit---Enmity existed between the parties and throwing the net wide could not be ruled out completely---Two prosecution witnesses had sworn affidavits that accused was not involved in the incident while co-accused was not assigned any role in the FIR except his presence on the site---Accused was not charged with any offence under Anti-Terrorism Act, 1997---First Information Report was lodged with a delay of thirty nine hours---Complainant had not indicated a motive in FIR for sixty persons to commit a crime of such magnitude---Complainant had alleged in FIR that accused was a notorious dacoit however no evidence was on record to substantiate the same---Story narrated in FIR required further inquiry under S. 497(2) Cr.P.C. on the face of it---Bail was granted accordingly.
Shabbir Ali Bozdar for Applicant.
Qurban Ali Malano for Applicant.
Zulfiqar Ali Jatoi, D.P.G. for the State.
2018 Y L R 1255
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ
SHAKEEL HYDER and 2 others---Petitioners
Versus
The PROVINCE OF SINDH through Secretary, Home Department, Govt. of Sindh and 11 others---Respondents
C.P. No.D-2952 of 2016, decided on 10th August, 2017.
Penal Code (XLV of 1860)---
----Ss. 364-A & 506---Constitution of Pakistan, Art. 199---Abduction---Quashing of proceedings of FIR---Petitioners (accused persons) had adopted the complainant's minor daughter, however the complainant alleged that the minor had been abducted by the petitioners---Present case involved a dispute of custody of minor which had been given the colour of criminal proceedings with the intention to pressurize the petitioner party---Allegation of abduction of minor with bad intentions by her adopted parents/close relatives was hard to believe---Minor was very much close and attached with her adoptive parents; 9 case of quashment of FIR had been made out in circumstances---High Court directed that the proceedings in respect of FIR under Ss. 364-A & 506, P.P.C. should be quashed, and that the petitioners and respondents were at liberty to approach the concerned forum regarding the custody of minor---Constitutional petition was allowed accordingly.
Ms. Shaista Shah for Petitioner.
Hussain Bux Solangi for Respondents.
Imtiaz Ali Mahar A.P.G. and A.S.I. Manzoor Ahmed.
2018 Y L R 1263
[Sindh]
Before Aftab Ahmed Gorar, J
MUHAMMAD SIDDIQUE---Appellant
Versus
The STATE---Respondent
Criminal Appeals Nos.318 and 298 of 2014, decided on 18th January, 2018.
Emigration Ordinance (XVIII of 1979)---
----Ss. 22(b) & 24(a)---Passports Act (XX of 1974), S. 6(1)(g)(h)---Receiving money for providing foreign employment---Appreciation of evidence---Accused persons were convicted and sentenced by Trial Court for receiving money for providing foreign employment to complainant--- Validity--- Issuance of cheques was not disputed and accused persons were running travel agency and were dealing in visas for employment abroad---One accused after receiving amount paid the same to the other---Computerized National Identity Cards and passports of prosecution witnesses were recovered from office of accused persons---Judgment delivered by Trial Court was well-reasoned, after appraisal of entire evidence brought on record by prosecution---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.
Sikandar Khan for Appellant (in Criminal Appeal No.318 of 2014).
Muhammad Javed K.K., Assistant Attorney General for Pakistan for the State (in Criminal Appeal No.318 of 2014).
Muhammad Arshad Khan for Appellant (in Criminal Appeal No.298 of 2014).
Muhammad Javed K.K., Assistant Attorney General for Pakistan for the State (in Criminal Appeal No.298 of 2014).
2018 Y L R 1270
[Sindh]
Before Mohammed Karim Khan Agha, J
GUL ZAMAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.958 of 2016, decided on 2nd November, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51---Possessing and trafficking of narcotics---Bail, refusal of---Section 51 of Control of Narcotic Substances Act, 1997 had provided that bail was not available in cases where the death sentence could be awarded---Accused had been challaned under S.9(c) of the Control of Narcotic Substances Act, 1997---Massive amount of charas (69.6 Kg) had been recovered from accused, which potentially could lead to death penalty or life sentence---Sufficient material was available on record to connect accused to the offence for which he had been charged---All the prosecution witnesses, had supported the prosecution case---Recovery was made from accused on the spot with positive chemical report---Accused hailed from Khyber Pakhtunkhwa Province, the possibility of his absconsion, if he was granted bail, could not be ruled out---Accused was third time involved in the case, which suggested that he was a hardened criminal---Drug dealing, being a heinous crime against society, possibility of capital punishment existed---High Court observed that prolonged delay in conclusion of the trial, was condemnable in the strongest possible terms---Matter could be dealt with by issuing a further direction to the Trial Court to complete the trial within a given period---Bail application was dismissed and the Trial Court was directed to hear the matter on a day to day basis and complete the trial within three months.
[Case law referred].
Muhammad Haseeb Jamali and Tariq Mahmood for Applicant.
Habib Ahmed, Special Prosecutor, A.N.F. for the State.
2018 Y L R 1284
[Sindh]
Before Muhammad Shafi Siddiqui, J
MUHAMMAD YOUNUS and others---Petitioners
Versus
ADDITIONAL DISTRICT JUDGE (VII), KARACHI (South) and others--Respondents
C.Ps. Nos. S-160, S-318, S-319, S-320, S-321 and S-399 of 2012, decided on 8th January, 2018.
Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15--- Ejectment application---Commercial premises---Bona fide personal need of landlord---Scope---Prerogative of landlord to supplement portion(s) of rented premises--- Scope--- Petitioners/ tenants contended that landlords were continually evicting the tenants of subject property at their will and whim and ground floor alone of multi-storeyed subject premises was sufficient to run their small scale industry---Landlords/ company contended that as ground floor had no frontage so whole subject building was needed for viable functioning of their company---Validity---Admittedly, subject property was commercial premises so bona fide need of the landlords for such property was to be seen on the touchstone of test different from that of residential rented premises---Record revealed that landlords in the evidence of one ejectment proceedings stated that their initially occupied ground floor had no frontage but in the cross-examination of proceedings of other ejectment petition, main gate as entrance on the rear side of ground floor was admitted---When the prerogative of landlords was left to their desire when the ground floor was acquired, in order to acquire more space some confidence inspiring evidence was required---Prerogative, choice and whims could not be the only tool left to judge the bona fides of the landlords at later attempts when they failed to explain insufficiency of earlier portion---Landlords made no attempt to show any progress of their company which was hampered due to mere insufficiency of space---Memorandum and Articles of Association of the company/landlords was silent as to running of factory as its object---High Court observed that there were no aims and objects of the company enabling the landlords to evict tenants for the purpose of establishing industrial unit " for its own"---Bona fides, in circumstances, became missing ingredient to evict tenants on the ground of personal requirement---High Court set aside impugned judgments passed by the two Courts below, resultantly the ejectment applications were dismissed---Constitutional petitions were allowed accordingly.
Allies Book Corporation v. Sultan Ahmed and others 2006 SCMR 152; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Iqbal Book Depot and others v. Khatib Ahmed and others 2001 SCMR 1197 and Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051 ref.
Mian Mushtaq Ahmed for Petitioners (in C.Ps. Nos. S-318, S-319 and S-321 of 2012).
Atique-ur-Rahman Khan for Petitioner (in C.P. No.S-399 of 2012).
Usman Tufail Shaikh for Petitioner (in C.P. No.S-160 of 2012).
Muhammad Haseeb Jamali for Respondent (in C.Ps. Nos. 160, 319, 321 and 399 of 2012).
Umair Qazi for Respondent (in C.P. No.S-318 of 2012).
2018 Y L R 1307
[Sindh (Sukkur Bench)]
Before Muhammad Saleem Jessar, J
ZAMEER---Applicant
Versus
The STATE through D.P.G. and 4 others---Respondents
Cr. Misc. Application No.401 of 2017, decided on 9th June, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 561-A---Inherent jurisdiction of High Court---Scope---Jurisdiction of High Court as provided under S.561-A, Cr.P.C. was not an alternate or an additional jurisdiction, but it was a jurisdiction preserved in the interest of justice to redress wrong for which no other procedure was available or had been provided by Criminal Procedure Code itself---Normally, every case was to be allowed to proceed according to law and resort to the provision of S.561-A, Cr.P.C., should be avoided; particularly when the relief, sought through that course, had been provided by the Code itself as it would tend to circumvent the due process of law which had never been the intention of law---Said remedy, however, would be available only in exceptional cases i.e., where inisisting upon normal procedure/course, could amount to continuity of an illegality or, could be an injustice, such as a case of abduction, where abductee himself/herself would deny to have been abducted and apprehended harm in approaching to Trial Court---High Court would be reluctant to quash the proceedings under S.561-A, Cr.P.C., unless the court was approached for exercise of its powers under S.249-A or 265-K, Cr.P.C., which were incidentally of the same nature and in a way akin to and co-relating with quashing of proceedings---Resort to the provisions of S.561-A, Cr.P.C., was not to be lightly made, as same would tend to circumvent the due process of law---While exercising inherent jurisdiction, High Court would never dress itself as that of Trial Court, but could well exercise where continuity of a complained proceedings, prima facie, without much deliberation, appeared to be an illegality or injustice---Allegations contained in FIR, could not be properly thrashed out as controversy would require evidence, hence could not be resolved by High Court through such proceedings---Insistence to adopt normal procedure had been for the reason, because inherent jurisdiction of High Court under S.561-A, Cr.P.C., was not analogous to that of Trial Court or Magistrate, who otherwise were competent to examine all the available material, while High Court only had to see prima facie illegality resulting or likely to result into injustice.
Asfandyar and another v. Kamran and another 2016 SCMR 2084; Ghulam Muhammad v. Muzamil Khan and 4 others PLD 1967 SC 317; Muhammad Khalid Mukhtar v. The State through Deputy Director F.I.A. PLD 1997 SC 275; Shaikh Mahmood Saeed and others v. Aamir Nawaz Khan and another 1996 SCMR 839; Shevo v. Regional Police Officer Hyderabad Region Hyderabad and 15 others PLD 2009 Kar. 24; Director City Circle GEPCO Ltd. and others v. Shahid Mir and others PLD 2013 SC 403 and Director General, Anti Corruption Estt. v. Muhammad Akram Khan PLD 2013 SC 401 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 561-A---Penal Code (XLV of 1860), Ss.379 & 427---Theft---Mischief causing damage to the amount of fifty rupees---Application for quashing of proceedings---Applicant/accused, had neither mentioned nor stated that before approaching the High Court under S.561-A, Cr.P.C., he had approached the Trial Court for getting his early acquittal under S.249-A, Cr.P.C., which remedy was analogous to the one, sought through application under S.561-A, Cr.P.C.---Applicant, should have approached Trial Court and thereafter, criminal revisional court, if no relief was granted by the Trial Court in the first instance under Cr.P.C. before approaching High Court directly; which in the circumstances of the case could not be said to be proper as it would amount to diverting and interrupting ordinary course, provided by Cr.P.C.---In the present case, after second investigation, challan had been submitted by the Investigating Officer and Magistrate had taken cognizance of the case, quashing of proceedings directly by the High Court, would tantamount to interruption in ordinary legal course, particularly in presence of alternate remedy available to the applicant in terms of S.249-A, Cr.P.C.---Second investigation was not barred under the law and difference of opinion of Investigating Officers of two investigations alone, could not be a ground for an early acquittal, but it would always be the material, so brought into the record by the investigation because the courts should not be influenced from ipse dixit of Police, which otherwise was not binding upon Magistrate as well the Trial Court---Recommendation of the case for its disposal under 'B-Class', was of no legal weight when the same stood changed by Investigation authority itself---Nothing had been placed on record, which could be taken as an exception for allowing deviation to normal procedure---Plea of pending civil litigation and even lodgment of criminal cases against each other, were not the grounds to plainly declare an allegation as false, but could well be taken as defence, which too at proper stage of the trial---Applicant, had prima facie by passed the ordinary legal course available to him, provided under Cr.P.C., and since no exceptional circumstances existed to justify departure from normal course, hence, in absence thereof inherent powers under S.561-A, Cr.P.C., could not be exercised; which otherwise, would amount to interrupt and divert the ordinary course under Cr.P.C.---Applicant could agitate the same plea before the Trial Court---Criminal miscellaneous application being incompetent was dismissed leaving the applicant to agitate his remedy before the Trial Court, which would pass an appropriate order, within four corners of law.
Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 ref.
Sarang H. Kubbar for Applicant.
Zulfiqar Ali Jatoi, D.P.G. for Respondents.
2018 Y L R 1319
[Sindh]
Before Muhammad Faisal Kamal Alam, J
MUHAMMAD IQBAL DAWOOD and another---Petitioners
Versus
ABDUL QAYOOM HOTH and another---Respondents
Suit No.1367 of 2007, decided on 11th May, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 8---Suit for possession of immovable property and mesne profits---Defendant was inducted by the plaintiffs as care taker to look after the suit land---Defendant/care taker had committed default in payment of money earned from the cultivation to the plaintiffs---Defendant had kept the plaintiffs out of possession of suit property---Plaintiffs were deprived of use and enjoyment of their land---Suit land was leased out to the plaintiffs and period/term of lease had been consumed by the care taker, mesne profits was to be granted to the plaintiffs in circumstances---Care taker was directed to hand over vacant possession of suit land to the plaintiffs free from all encumbrances and claims---Defendant/care-taker should pay mesne profits and contract money to the plaintiffs---Suit was decreed accordingly.
M.G. Hassan and 4 others v. Sheikh Riazul Haque and 5 others 1979 SCMR 15 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 132(2)---Witness not cross-examined on a material part of evidence---Effect---If a witness was not cross-examined on a material part of his evidence, the same would be deemed to be accepted by the opponent.
Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.
M. Shafi Muhammadi for Plaintiffs.
Nemo for Defendants.
2018 Y L R 1341
[Sindh]
Before Arshad Hussain Khan, J
NISAR AHMAD JAPANWALA---Plaintiff
Versus
CITY DISTRICT GOVERNMENT, KARACHI through District Co-ordination Officer---Defendant
Suit No.877 of 2007, decided on 2nd December, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Allotment of land---Cancellation of---Suit land was allotted to the plaintiff and he paid price of the land---Authorities did not hand over possession of suit land to the plaintiff on account of encroachment on the suit property---Validity---Defendant had failed to fulfill its part of obligation under the terms of allotment---Plaintiff had already paid the entire amount of price and to avoid any adverse action, he had filed the present suit---Plaintiff had established his case---Suit was decreed accordingly.
Haji Noor Muhammad and others v. Karachi Development Authority and 2 others PLD 1975 Kar. 373 and Nasira Sultana v. Habib Bank Ltd. and others PLD 1975 Kar. 608 ref.
(b) Specific Relief Act (I of 1877)---
----S. 42--- Suit for declaration---"Maintainability of lis" and "entitlement to relief"---Distinction.
The question of 'Maintainability of lis' and 'entitlement to relief' are two distinct things. 'Maintainability of lis' is a legal question, inter alia, related to a legal character of the person under the provisions of Section 42 of Specific Relief Act, which requires any person entitled to any legal character or to any right as to any property, may institute suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled. It would thus be safely stated that the law authorizes a person to seek enforcement of his right to any property by instituting a suit against a person denying his right or title.
Section 42 of the Specific Relief Act does give a right to institute a suit to any person who has any right as to any property. The 'legal character' is the most important aspect of a lis [case] and in absence thereof one cannot maintain his/her lis though filed for a relief, recognized under 'Specific Relief Act or under any other law' except matters, qualifying requirement of section 91 of the C.P.C. Furthermore, such aspect of the case can also be decided in a summary manner at initial stages. However, the party seeking entitlement to relief has to prove his entitlement through evidence and such aspect cannot be decided in summary manner but after a proper trial.
Parveen Begum and another v. Shah Jehan and another PLD 1996 Kar. 210; Abdul Razzak Khamosh v. Abbas Ali and others PLD 2004 Kar. 269 and Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others 2017 YLR 1579 rel.
Muhammad Aqil for Plaintiff.
S.M. Ali Azam for Defendant.
2018 Y L R 1362
[Sindh]
Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ
MUHAMMAD ANWAR---Appellant
Versus
The STATE---Respondent
Criminal Anti-Terrorism Appeal No. 442 of 2015, decided on 16th August, 2017.
Penal Code (XLV of 1860)---
----Ss. 385 & 386---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused had been demanding "Bhatta" from complainant and was issuing him threats for dire consequences---Complainant had paid Rs. 1,50,000/- to accused due to fear---Accused demanded Rs. 10,000/- more and complainant agreed to pay Rs. 5,000/---On 20.8.2014, complainant was present in his shop and had seen police officials in private car---Police vehicle was stopped and complainant told police about extortion of money by accused---Accused came on his motorbike to the shop of the complainant and received Rs.5,000/- from him---Meanwhile, persons of locality gathered there who caught hold of accused and started beating him, accused received injuries on his face and other parts of body---Police recovered Rs. 5,000/- from him and the case was registered against him---Prosecution evidence reflected that accused was empty handed at the time of incident and there was no evidence that he committed extortion by putting complainant or his daughter in fear of death or of grievous hurt---Complainant had failed to mention the mobile number of the accused from which he received calls on his cell number and no call data was collected by the Investigating Officer during investigation---Record showed that complainant and accused were Bengalis---Accused raised plea that he had given hand of his daughter to the son of the complainant, thereafter, he had refused, which caused annoyance to the complainant---Accused further stated that he had given a loan of Rs. 10,000/- to the complainant and when he went for its return, he was involved in the case and maltreated---Evidence of prosecution witnesses without independent corroboration could not be relied upon in circumstances---Recovery of "Bhatta" money from accused had not been proved by cogent evidence---Prosecution had failed to prove the demand of "Bhatta"---Complainant had made improvements in his evidence, therefore, it would be unsafe to rely upon such type of evidence for maintaining the conviction---Prosecution had failed to establish the alleged act of the accused demanding ransom within the scope of "terrorism" as envisaged under S.6 of the Anti-Terrorism Act, 1997---Evidence produced against accused in the present case did not attract jurisdiction of Anti-Terrorism Court, therefore, offence was triable by court of ordinary jurisdiction---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Accused had faced agony of long trial since 20.8.2014, as such re-trial in the peculiar circumstances of the case could not be ordered---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Khuda-e-Noor v. The State PLD 2016 SC 195; Sagheer Ahmed v. The State and others 2016 SCMR 1754 and Irshad Ali and another v. Mohammad Shahid and another 2015 PCr.LJ 158 rel.
Abdul Baqi Lone for Appellant.
Mohammad Iqbal Awan, D.P.G. for the State.
2018 Y L R 1374
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi and Zulfiqar Ahmed Khan, JJ
WAZIR ALI---Petitioner
Versus
PROVINCE OF SINDH through Home Secretary Home Department Karachi and 3 others---Respondents
C.P. No.D-1136 of 2017, decided on 10th May, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Application for registration of case against petitioner and other police officials was allowed by Ex-officio Justice of Peace---Contention of petitioner was that (private) respondent moved an application before the SHO for registration of criminal case against him and other police officials to the effect that the police took away her son, who was still missing---No offence had been committed by the petitioner but the respondent had managed a false story in order to harass and humiliate the petitioner and other police officials---Allegedly, son of respondent was a criminal, notorious and involved in number of criminal cases and said fact had been mentioned by the SHO in his report submitted to the Ex-officio Justice of Peace---Ex-officio Justice of Peace did not consider it and passed the impugned order, which was not sustainable in law---Validity---Case of respondent was that on 18.4.2017, petitioner along with other police officials entered in her house forcibly in the midnight and after damaging the household articles took away her four sons---Three sons of respondent were released, whereas her fourth son was still missing and his whereabouts were not known, as such, she filed application against the police officials including petitioner before the Ex-officio Justice of Peace for the registration of case, which was allowed---Police was legally bound to register criminal case whenever commission of a cognizable offence was reported to it---If police would not register case regarding cognizable offence, Ex-officio Justice of Peace could issue direction under S. 22-A(6)(i), Cr.P.C. to the concerned police authorities to register criminal case in respect of complainant's allegations---In the present case, allegedly, respondent approached the police officials about the incident but concerned authorities had not redressed her grievance---Respondent had alleged that the accused had taken away her son and now had caused his disappearance; by alleging so, she sought direction against the police to record her FIR---Station House Officer in his report had stated that son of the respondent had criminal record and was absconding---Ex-officio Justice of Peace, in circumstances, had passed the order directing the SHO to record the statement of respondent and if cognizable offence was made out then case be registered---After registration of FIR and during investigation, if the allegations found to be false then respondent could be prosecuted in accordance with the law---Record showed that impugned order was passed after exercising of proper jurisdiction in given circumstances of the case---No illegality in the impugned order of the Ex-office Justice of Peace was made out---Constitutional petition was dismissed accordingly.
Sherin Zada and 8 others v. The State and 4 others 2015 MLD 386; Nazir Ahmed v. Station House Officer, Police Station Adil Pur, District Ghotki and another 2015 PCr.LJ 846; Muhammad Mujahid Iqbal v. Additional Sessions Judge, Rajanpur and 10 others 2009 YLR 330 and Gul Waiz and others v. Zuhra Bibi and others 2010 PCr.LJ 45 ref.
Muhammad Bashir v. Station House Officer Okara Cantt and others PLD 2007 SC 539 rel.
Bhagwan Das Bheel for Petitioner.
Ashfaque Nabi Kazi, Assistant A.G. for the State.
2018 Y L R 1400
[Sindh]
Before Khadim Hussain M. Shaikh, J
MUHAMMAD MUBEEN KHAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.70 of 2016, decided on 26th November, 2016.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15---Possession of narcotic drugs, aiding abetment or association in narcotic offences---Bail, refusal of---Second bail application--- Maintainability--- Scope---High Court had already rejected the bail application of the accused on merits---Second bail application was filed within one month of the rejection of first such application---Contention of counsel for accused that some of the grounds shown in earlier bail application were not dealt with separately while rejecting the bail application, therefore plea for bail of the accused could be reconsidered in the second application, was patently untenable for the reason that High Court had already rejected first bail application on merits---Second bail application on the face of it was misconceived and not entertainable as admittedly there was no fresh ground available to the accused to file the second bail application---Bail was refused.
Raja Muhammad Akram Khan v. Mazhar Iqbal and 2 others 2004 PCr.LJ 935; Ziaur Rehman's case PLD 1973 SC 49; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 and Socha Gul v. The State 2015 SCMR 1077 ref.
The State v. Zubair and 4 others PLD 1986 SC 173 rel.
Nasir Rizwan for Applicant.
2018 Y L R 1422
[Sindh (Sukkur Bench)]
Before Omar Sial, J
BAQAR SHAH---Appellant
Versus
The STATE---Respondent
Cr. Jail Appeal No.S-21 of 2012, heard on 22nd May, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellant stabbed the brother and cousin of the complainant, due to which, brother of complainant died---Ocular account was furnished by three prosecution witnesses comprising brothers and mother of the deceased---Complainant/brother of deceased deposed in trial that whatever he had stated in the FIR was said under threats from his brother and cousin and that the actual facts were the ones what he recorded in his statement under S. 162, Cr.P.C.---Complainant had stated in his statement under S. 162, Cr.P.C. that his cousin along with the co-accused had held the deceased while accused-appellant had stabbed him---Prosecution witness/real brother of complainant had given a different version to the same event in his statement recorded under S. 164, Cr.P.C.---Complainant had changed his stance on the location of the place where the stabbing had occurred---Complainant had stated in FIR that incident had taken place outside his house, while in trial, he deposed that incident took place inside the courtyard of a house owned by some one else---Son of the owner of the house was present in the house at the time of incident---Neither the statement of owner of the house and his son were recorded by the police nor they were examined in trial--- Prosecution witness/brother of complainant deposed that the incident took place in a street---Mother of the deceased/witness deposed that incident occurred inside a house---Witness of site inspection recorded his statement that place of incident was outside the house but deposed in the trial that incident occurred inside the house---Such contradictions between the eye-witnesses created doubt about the presence of eye-witnesses at the place of incident---First Information Report showed that mother of deceased fell down immediately and became unconscious at the time of incident and regained her senses three days later---Complainant stated during cross-examination that he and the rest of the family members were all conscious throughout---Witnesses/mother and brother of deceased deposed that main person behind the murder was brother of the accused-appellant---Said person did not figure in any police investigation---Incident took place on 16.6.1997, but eye-witness/brother of deceased did not record his statement before the police and recorded his statement under section 164 Cr.P.C. on 1.7.1997---Witness/mother of deceased recorded her first statement before the police on 23.6.1997 and before the Magistrate on 1.7.1997---Statement of another witness was recorded on 25.6.1997 before the police and on 1.7.1997 before the Magistrate---No cogent explanation had been given for such delay---Record transpired that the witnesses had not corroborated each other on the time line of events---Circumstances established that prosecution was unable to prove its case beyond reasonable doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Complainant had changed the motive of murder in trial---Effect---Complainant had stated in the FIR that fight which led to the murder had occurred because the deceased had brought two pigeons from the accused and did not pay money---Complainant had stated in trial that the accused used to restrain deceased from visiting the house of one "D", and accused and co-accused murdered the deceased on going there---"D" was not examined as a witness---Circumstances established that prosecution had failed to prove the motive against the accused.
(c) Criminal Procedure Code (V of 1898)---
----S. 161---Statement before police---Delay---Effect---Delay in recording the statement of eye-witnesses of even one or two days without any explanation could not be relied upon.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Prosecution case was that accused-appellant stabbed the brother and cousin of the complainant, due to which, they sustained injuries and brother of complainant died---Record showed that accused-appellant was arrested by the police on 19.6.1997 but witness stated that accused was caught by the complainant and his brother and the alleged knife (weapon of offence) was recovered from him---Said version of witness did not appeal to logic that accused would be roaming around with the knife with which he had committed a murder a day earlier---Said knife/dagger was not produced in trial---Recovery of weapon of offence was inconsequential in circumstances.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence not corroborating ocular revision---Prosecution case was that accused-appellant stabbed the brother and cousin of the complainant, due to which, they sustained injuries and the brother of complainant died---Record showed Postmortem of the deceased was conducted at about 11.00 a.m. on 17.6.1997---Medical Officer, who conducted postmortem of the deceased, opined that the time between injury and death was eight hours and the time between death and postmortem was twenty four hours---Said version of Medical Officer meant that the time between injury and postmortem would be approximately thirty two hours---Prosecution case was that deceased was stabbed at 5 p.m. on 16.6.1997---Medical evidence, in circumstances, did not corroborate the ocular version.
(f) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Record showed that on the basis of same set of evidence, co-accused persons had been acquitted, while accused was convicted---Effect---Prosecution witnesses if disbelieved for co-accused persons, could not be relied upon with regard to the accused unless they were corroborated by evidence which came from unimpeachable independent source.
Ubedullah Malano for Appellant.
Abdul Rehman Kolachi, A.P.G. for the State.
2018 Y L R 1436
[Sindh]
Before Aftab Ahmed Gorar, J
FAZAL MOULA---Applicant
Versus
The STATE---Complainant
Criminal Bail Application No.657 of 2017, decided on 18th October, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15---Possession of narcotic drugs, aiding, abetment or association in narcotic offences---Bail, refusal of---Accused allegedly was arrested red-handed while he was receiving charas (narcotic) packets and putting in the diggy of car---Samples so separated from the recovered lot when were sent to Forensic Science Laboratory were analyzed as 'charas' by Chemical Examiner---Counsel for accused was unable to point out any misreading, non-reading of material and law available on the subject---Accused was involved in other case of recovery of charas; which fact was conceded by accused---Offences punishable under the Control of Narcotic Substances Act, 1997 were by its nature heinous in nature and against the society at large---Bail was refused accordingly.
[Case law referred].
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Preamble---Object of---Control of Narcotic Substances Act, 1997 is to consolidate and amend the law relating to narcotic drugs and psychotropic substances.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----Preamble---Scope of the Act---Control of Narcotic Substances Act, 1997 controls and prohibits the prosecution, processing and trafficking of narcotic drugs and psychotropic substances; it provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 51---Scope---Section 51 of Control of Narcotic Substances Act, 1997 provided that bail would not be granted to accused charged with an offence under the Act or under any other law relating to narcotics where the offence was punishable with death.
(e) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Exercise of discretion---Scope---Discretion under S. 497, Cr.P.C. could not be exercised with regard to offences punishable with death or imprisonment for life unless the court was satisfied that such a charge appeared to be false or groundless.
(f) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Tentative assessment---Scope---Deeper appreciation of record at bail stage could not be gone into but it was to be seen only as to whether the accused was prima facie connected with the commission of offence or not.
(g) Discretion---
----Exercise of---Judicial discretion---Scope---Exercise of judicial power would inevitably take care of the evil consequences which would likely to flow out of its intemperate use---Every kind of judicial discretion would be used with due care and caution---Awareness of the context in which discretion was required to be exercised and of the reasonably foreseeable consequences of its use was the hall mark of a prudent exercise of judicial discretion.
Shoukat Hayat for Applicant.
Habib Ahmed, Sp. Prosecutor ANF for the State.
2018 Y L R 1455
[Sindh (Hyderabad Bench)]
Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ
NAZAR MUHAMMAD and another---Appellants
Versus
The STATE---Respondent
Crl. Appeal No.D-10 of 2015, decided on 8th May, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 310-A & 201---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, giving a female in marriage or otherwise in badl-e-sulah, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the daughter of complainant left his house with her paramour who returned his daughter after few days---Accused/appellants, who were uncle and cousin of the complainant thereafter took the daughter of complainant to their house for some time in order to avoid further disgrace---Complainant and his wife used to visit his daughter from time to time, at the house of accused-appellants but on one such visit, she was not present in the house---Accused-appellants had informed the complainant who had reached there with two witnesses, that she did not want to remain there and wanted to go out of their house---Daughter of complainant was murdered by accused and buried in the ditch to preserve the family honour---Record showed that complainant and his two relatives were the key prosecution witnesses---Said witnesses in the FIR and in their statements recorded under S.164, Cr.P.C. had stated that accused-appellants had murdered the deceased but resiled before the Trial Court and refused to support the prosecution case---Said witnesses stated that accused-appellants had told them that deceased had left their house, they and other relatives searched for her and came to know that her dead body was buried near the graveyard---Witnesses denied that they had changed their evidence due to compromise, threat, inducement or for any other reason---Dead body was exhumed which was identified by the complainant as his daughter---Said witnesses were declared to be hostile---Names of the accused-appellants had been added by the police---Circumstances established that prosecution failed to prove its case against the accused beyond reasonable doubt---Accused-appellants were acquitted by setting aside conviction and sentence recorded by the Trial Court.
Muhammad Sarfraz v. State 2013 SCMR (sic); Aurengzeb v. State 1990 SCMR 619 and Wahid v. State PLD 2002 SC 62 ref.
Khuda Bukhsh v. State 2004 SCMR 331 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 310-A & 201---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, giving a female in marriage or otherwise in badl-e-sulah, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused-appellants were charged for the murder of deceased---Prosecution had alleged that deceased resided in the house of accused-appellants and they were responsible for the murder of deceased---Necessary ingredients to establish the offence by circumstantial evidence were missing in the present case---Circumstances, from which the conclusions were drawn, were to be fully established; all facts must be consistent with the hypothesis; circumstances had to be of a conclusive nature and tendency; circumstances were to be of moral certainty actually excluding every hypothesis, but proved---Circumstances established that prosecution failed to prove the guilt through circumstantial evidence---Accused-appellants were acquitted by setting aside conviction and sentence recorded by the Trial Court.
Ameer Bakhsh v. State 2012 YLR 498 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 164---Confessional statement, denial of---Evidence on oath---Scope---Evidence on oath would trump statement recorded under S.164, Cr.P.C. which were later denied.
Syed Muhammad Waseem Shah for Appellants.
Syed Meeral Shah Bukhari, Deputy Prosecutor General for the State.
2018 Y L R 1467
[Sindh]
Before Fahim Ahmed Siddiqui, J
Mst. NOOR JEHAN---Applicant
Versus
MUHAMMAD KHAN KHOSO and another---Respondents
Cr. Rev. Application No.108 of 2015, decided on 30th October, 2017.
Criminal Procedure Code (V of 1898)---
----S. 491---Guardians and Wards Act (VIII of 1890), S. 12---Habeas corpus petition for recovery of minor---Jurisdiction of High Court---Scope---Petitioner, was maternal grand mother of the minor aged four years, who was residing with her since her birth---Mother of the minor had died---Father of minor had contracted another marriage and with consensus of both the families, father of minor used to meet the minor on every Saturday---Father of minor, on one visit requested the petitioner to allow him to take minor to meet his parents at their house, after that he took the minor from the house of petitioner and had not returned the custody of the minor to the petitioner---Petitioner filed petition before the Sessions Court, which was dismissed---Validity---Custody of minor was to be decided on the consideration of "welfare of minor"---Court was to issue directions in favour of mother and such directions were always of interim in nature and the same would not debar the Family Court to look into the matter and decide the same on merits---In the present case, the controversy was not in-between the spouses but after the death of the mother, the maternal grandmother was demanding custody of minor from the father under S. 491, Cr.P.C.---Proper forum to decide the matter pertaining to custody of minor was the Family Court, as the question of the welfare of minor was factual controversy, which required evidence---No exceptional and extraordinary circumstances available in the present case, which attracted real urgency for exercising the jurisdiction under S. 491, Cr.P.C.---Petition was dismissed in circumstances.
Bashir Ahmed v. Mst. Aziz Begum and another 1973 SCMR 1; Major Zafar Iqbal v. Mst. Rehmat Jan and another 1994 SCMR 339; Mst. Kaneez Fatima v. Shaukat Hussain and others 1998 MLD 1996; Nadeem Iqbal v. Muhammad Kabir Khan and 2 others 2011 YLR 348 and Mst. Nadeem Bibi v. SHO PS Qutubpur, District Multan and 3 others 2011 MLD 1814 ref.
Mst. Nadia Perveen v. Almas Noreen and others PLD 2012 SC 758 rel.
Mirza Sarfaraz Ahmed for Applicant.
Naseer Hussain Jaffri for Respondent No.1.
Mumtazir Mehdi, Assistant Prosecutor General, Sindh for the State.
2018 Y L R 1479
[Sindh (Sukkur Bench)]
Before Abdul Rasool Memon and Rasheed Ahmed Soomro, JJ
ACHAR---Petitioner
Versus
PROVINCE OF SINDH through Secretary Home Department, Sindh Secretariat, Karachi and 3 others---Respondents
C.P. No. D-1745 of 2017, decided on 17th January, 2018.
Pakistan Prison Rules 1978---
----R. 140---Criminal Procedure Code (V of 1898), S. 401---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Power to remit sentence---Life imprisonment, sentence of---Substantive part of life sentence already served---Petitioner-accused was convicted under S. 302, P.P.C. and sentenced to rigorous imprisonment for life---Petitioner contended that he had served out a period of 16 years, 6 months and 29 days and earned remissions of 7 years, 3 months and 16 days; that as per R. 140 of the Prison Rules, 1978, a prisoner who had served out 15 years of his substantive sentence, his case may be referred to Provincial Government through Inspector General Prisons for remittance of his sentence in terms of S. 401, Cr.P.C.; held, that the concerned Senior Superintendent Prisons should commute the sentence of the petitioner in terms of law and if the case of the petitioner fell under R. 140 of the Prison Rules, 1978, then refer the matter to the Provincial Government for dealing with the same in accordance with law---Constitutional petition was disposed of accordingly.
Nadeem Ahmed Malik for Petitioner.
Agha Ather Hussain AAG.
2018 Y L R 1496
[Sindh]
Before Adnan-ul-Karim Memon, J
ZARDULLAH KHAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1675 of 2016, decided on 21st August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Bail, grant/refusal of---Principles--- While deciding a bail application court was to consider allegations in the FIR; statements recorded under S.161, Cr.P.C.; nature and gravity of charge; other incriminating material; legal pleas raised by accused and relevant law.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail, refusal of---Accused was arrested red-handed with huge quantity of 375 Kgs of heroin---Accused had been booked by the prosecution as main exporter of the subject consignment and he had admitted his guilt---Each of the container had been broken by the Inspector in the presence of accused---Accused had acquired the godown from prosecution witness only for storage of sanitary material and had filed undertaking regarding the goods for export---Recovery of heroin powder was witnessed by the Police Officials, they were as good witnesses as any other person, and they had no ostesible reason to falsely implicate the accused in a case of serious nature---Chemical Examiner's report of subject narcotic substance was positive, which supported the prosecution case---Case of accused was hit by prohibition contained in S.51 of Control of Narcotic Substances Act, 1997---No material had been produced to suggest that accused was falsely implicated in the alleged crime---Section 25 of Control of Narcotic Substances Act, 1997 having excluded applicability of S.103, Cr.P.C., no case of further enquiry was made out---Rule of consistency was not applicable in the case---Merely saying that accused had been implicated by Anti-Narcotic Force, was not sufficient to discard the prosecution story as being false, which was even otherwise a factual controversy and at bail stage only tentative assessment of the record was to be made---Plea that handwriting expert's report did not support the prosecution case required evidence and Trial Court seized of the matter was to look into that aspect of the case; as at bail stage that was hardly a ground of bail---Offence against accused was punishable with life imprisonment---Witnesses had supported the case against the accused---Trial of the case was at the verge of con-clusion and could be concluded within a period of two months---Accused having not made out a case for grant of bail, appli-cation for bail was dismissed, in circum-stances.
State v. Aleem Haider 2015 SCMR 133; Socha Gul v. The State 2015 SCMR 1077 and Babar Hussain v. The State and others 2016 SCMR 1538 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Bail, grant of---Rule of consistency--- Applicability--- Rule of consistency, could only be pressed, if co-accused with similar and identical role was released on bail by the court and others were declined the same concession.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail on statutory ground---Scope---Bail could be refused on the statutory ground, if circumstances so warranted.
Muhammad Nadeem Khan for Applicant.
Habib Ahmed, Special Prosecutor for ANF.
2018 Y L R 1515
[Sindh (Hyderabad Bench)]
Before Mohammed Karim Khan Agha, J
AHMED KHAN and 2 others---Appellants
Versus
The STATE---Respondent
Criminal Jail Appeal No. S-104 of 2004, decided on 26th April, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-Amd---Appreciation of evidence---Benefit of doubt---Evidence of related witness--- Principle--- Medical evidence and ocular account---Contradictions--- Alternate motive---Eye-witness was not to be disbelieved simply because he was related to deceased but it was to be seen that enmity had come on record between accused persons and complainant side---Minor contradictions were to be ignored---Evidence of eye-witnesses was non-confidence inspiring and the same was contrary to the normal and usual behavior and did not appeal to reasons---Major contradictions existed in prosecution evidence vis-à-vis shooting of deceased and medical evidence which conclusively showed that the deceased received no bullet wound; enmity between parties; possibility of alternate motive; lack of reliability; trustworthiness of police; and prosecution evidence as a whole was also riddled with contradictions---Even Chemical Examination report was delayed by over 5 months which went completely unexplained---When evidence was read and considered in totality there was a reasonable doubt in a prudent mind that accused persons were not guilty of offences for which they had been convicted by Trial Court---Prosecution had failed to prove its case beyond reasonable doubt against accused persons who were entitled to benefit of doubt---High Court set aside conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.
[Case-law referred].
(b) Criminal trial---
----Benefit of doubt---Applicability---Prosecution was to prove its case against accused beyond shadow of doubt---If there was any doubt in prosecution's case, benefit of such doubt must go to accused as of right as opposed to concession.
[Case-law referred].
Syed Tarique Ahmed Shah for Appellants.
Shahid Ahmed Shaikh, A.P.G. for the State.
Nazeer Ahmed Bhatti for the Complainant.
2018 Y L R 1546
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J
SHOUKAT ALI---Applicant
Versus
ADDITIONAL SESSIONS JUDGE, TANDO ADAM and 3 others---Respondents
Criminal Transfer Application No. S-49 of 2016, decided on 26th May, 2017.
Criminal Procedure Code (V of 1898)---
----S. 526---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence or giving false information to screen offender, common intention---Application for transfer of case---Contention of counsel for applicant/witnesses was that since applicant had serious apprehension of being killed or kidnapped by accused party his case be transferred from Sessions Judge "T" to any other district---Held, applicant, instead of seeking help from the local Police or the Trial Court, had chosen to file transfer application without any valid, firm and justifiable reason---Such request of applicant could not be accepted, which would defeat smooth functioning of Court---Application for transfer of case was dismissed in circumstances.
Muhammad Hassan Chandio for Applicant.
2018 Y L R 1554
[Sindh]
Before Aftab Ahmed Gorar, J
MUHAMMAD KAMRAN BHATTI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1808 of 2017, decided on 11th December, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.489-F--- Dishonestly issuing cheque---Bail, refusal of---Habitual offender---Mere fact that the offence for which the accused was charged did not attract the prohibitory clause of S.497, Cr.P.C. could not per se make him entitled to the concession of bail---Grant of bail in such like cases was not a rule of universal application as each case merited decision on the basis of its own facts and circumstances---Record revealed that the accused was a habitual offender of committing such like offences and was involved in number of cases---Accused prima facie was linked with commission of offence thus was disentitled to the concession of bail---Bail was refused, in circumstances.
Aamir Mansoob Qureshi for Applicant.
Ms. Seema Zaidi, Deputy Prosecutor General, Sindh for the State.
2018 Y L R 1557
[Sindh]
Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ
HAROON ZIA MALIK---Appellant
Versus
Mst. FARIHA RAZZAK and 6 others---Respondents
High Court Appeals Nos.47 and 48 of 2013, decided on 21st November, 2017.
(a) Gift---
----Ingredients---Gift in favour of wife---Scope---Contention of plaintiff husband was that he was owner of suit property and gift in favour of defendant wife was a forged document---Suit was dismissed by the Trial Court---Validity---Plaintiff was owner of suit property who voluntarily gifted the same to the donee-wife---Trial Court had correctly appraised the evidence while recording his findings---Impugned gift deed was not a forged and fabricated document but same had been signed by the donor---Suit property had been gifted in favour of defendant who was wife of donor at the relevant time---Ingredients of gift were offer, acceptance and delivery of possession which were present in the case---Possession of suit property was already with the donee which till date continued to be with her---If husband had made a gift of anything to his wife or vice-versa then it could not be retracted---Transaction in question was not a financial one but it was gift of which a reciprocal financial obligation was not a consideration---Provisions of Arts. 17 & 79 of Qanun-e-Shahadat, 1984 were not applicable in the matter of gift---Gift did not require a compulsory registration---Donor did not suffer any mental distress at the hand of donee---Impugned judgment did not suffer from any infirmity or illegality---Appeal was dismissed in circumstances.
[Case-law referred].
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 132(2)--- Witness not cross-examined on material part of evidence---Effect---If a witness was not cross examined on material part of his evidence then the same would be deemed to be accepted by the opponent.
(c) Islamic law---
----Gift---Ingredients---Ingredients of gift were offer, acceptance and delivery of possession.
(d) Islamic law---
---Gift---Revocation of---Gift could be revoked through Court decree or consent of the donee.
(e) Evidence---
----Documentary evidence---Document which was confronted to the witness and exhibited should only be considered in evidence.
Mubarak Ahmed for Appellant.
Khalid Javed for Respondents.
2018 Y L R 1584
[Sindh]
Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ
MUHAMMAD ASLAM---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Jail Appeals Nos. 102 and 103 of 2015, decided on 14th September, 2017.
Anti-Terrorism Act (XXVII of 1997)---
----Ss. 6 & 7(h)--- Penal Code (XLV of 1860), Ss. 384 & 386--- Extortion, demanding Bhatta and aerial firing--- Appreciation of evidence--- Benefit of doubt---Accused was convicted by Trial Court and sentenced to imprisonment for five years--- Validity--- Trial Court could not have convicted and sentenced an accused for offense under S. 7(h) of Anti-Terrorism Act, 1997 as mere firing in area for bhatta did not ipso facto bring case within purview of S. 6 of Anti-Terrorism Act, 1997 so as to brand action as terrorism--- Ingredients for extortion of money were not satisfied, bhatta money, pistol and empties were not sealed at the spot---Overwriting was noticed in Mushirnama of arrest and recovery without explanation by prosecution---Several circumstances existed which created reasonable doubt in the case of prosecution---If a single circumstance which created reasonable doubt in a prudent mind about guilt of accused, accused was entitled to benefit not as a matter of grace and concession but as a matter of right--- High Court set aside conviction against accused by extending him benefit of doubt--- Accused was acquitted in circumstances.
Sagheer Ahmed v. The State and others 2016 SCMR 1754; Khuda-e-Noor v. The State PLD 2016 SC 195 and Amjad Ali and others v. The State PLD 2017 SC 661 ref.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
Abbas Hyder Gaad for Appellant.
Mohammad Iqbal Awan D.P.G. for the State.
2018 Y L R 1605
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
KHUSHAL---Applicant
Versus
The STATE---Respondent
Crl. Revision Petition No.S-138 of 2016, decided on 18th November, 2016.
Juvenile Justice System Ordinance (XXII of 2000)---
----S. 7---Age of accused, determination of---Scope---Determination of age of accused claiming himself to be minor---Application for separate trial as juvenile filed by the accused was declined after considering the academic certificates and ossification report---Validity---Undisputed official education record/birth certificate, be given preference particularly when such record was got entered much prior to the incident without having any intention to use it in such eventuality---Since, the provision of S. 7 of Juvenile Justice System Ordinance, 2000 did not specify the mechanism of inquiry for determination of age, but insisted to base a finding after an inquiry, which would include medical report---Ossification test could be helpful in resolving the controversy regarding age of the accused, but such test was a guess work based on the fusion of joints in the human body between birth and age of twenty five years---Expert, in the present case, had opined that there could be an error of about 1 to 2 years in the age, determined by the ossification test---High Court observed that if the academic record stood verified and prima facie was not found to be dubious or an arranged work for getting benefit then the court should give benefit to the accused within the margin of six months, if not of one year or two---If ossification test had declared the accused to be six months older, while the academic or other record was not maneuvered one had shown him to be less than eighteen years, then the accused was to be declared as "child"---Record showed the claim of accused to have born on 4.1.1997 which stood verified not only with reference to his matriculation certificate but also with reference to General Register, which the prosecution did not dispute or claimed to have been arranged or dubious affair---Trial Court, in circumstances, was not legally justified in declaring the accused as "not juvenile", merely with reference to ossification report, which showed the accused "about eighteen years and four months old" at the time of offence---Margin of expression "about" ought to have been given to accused in presence of verified academic record, prepared and maintained by officials much prior to the alleged date of incident or even without having any such intention to be used in future---Order of the Trial Court was not sustainable, in circumstances, and was set-aside accordingly---Revision petition was allowed and accused was declared as "juvenile" within the meaning of S. 7 of the Juvenile Justice System Ordinance, 2000 and his case was to be tried separately.
2014 PCr.LJ 858 ref.
2013 PCr.LJ 1440; PLD 2004 SC 758 and 2009 SCMR 1073 rel.
Aziz Ahmed Leghari for Applicant.
Mir Nadeem Talpur for the Complainant.
Shahid Shaikh,A.P.G. for the State.
2018 Y L R 1616
[Sindh]
Before Nazar Akbar, J
Syed ALI MUHAMMAD NAQVI through L.Rs. and others---Plaintiffs
Versus
ABBAS RAZA and another---Defendants
Suit No.1250 of 1997, decided on 10th January, 2018.
Specific Relief Act (I of 1877)---
----Ss. 42 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for declaration, possession and cancellation of instrument---Document, proof of---Procedure---Contention of plaintiffs was that they had purchased the suit land and sale deed in favour of defendant was without consideration--- Validity---Plaintiffs were in continuous possession of suit property even before and at the time of sale deed in favour of defendant---Vendor never handed over possession of suit land to the defendant---Plaintiffs had purchased the suit land jointly---Sale deed in favour of defendant had not been even attested by two persons as required under Art. 17 of Qanun-e-Shahadat, 1984---Only one man and one woman had been mentioned as witnesses on the said sale deed---Sale deed in favour of defendant had been unlawfully registered by the Sub-Registrar as same had not been attested by two men or one man and two women---Execution of said sale deed could not be proved in terms and Art. 79 of Qanun-e-Shahadat, 1984---Sale deed in favour of defendant had not been established in circumstances---Plaintiffs were joint owners of suit property and they were entitled to their respective share as per Sharia Law applicable to the parties---Defendant being legal heir of deceased was also entitled to his share being family member of the plaintiffs---High Court directed that suit property being indivisible, same should be sold through auction and sale proceeds be distributed amongst the plaintiffs and legal heirs of the deceased---Suit was decreed in accordingly.
Abdul Hameed through L.Rs. and others v. Shamasuddin and others PLD 2008 SC 140; Shams-ud-Din and others v. Nusrat Hussain Cheema and others 2002 YLR 1568; Mirza Allah Ditta alias Mirza Javed Akhter v. Mst. Amna Bibi and another 2004 YLR 239; Mst. Akbar Jan through L.Rs. and 9 others v. Mst. Kalsoom Bibi and 6 others 2015 CLC 549; Mst. Bakhan v. Ahmad Yar 2006 YLR 831; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Manzoor Ahmed and 4 others v. Mehrban and 5 others 2002 SCMR 1391; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Wasi-ud-Din v. Fakhra Akhtar and 4 others 2011 SCMR 1550; Dr. Muhammad Riaz Mirza and others v. Muhammad Yousaf Mirza and others 2005 YLR 2213; Salman Ashraf v. Begum Asmatun Nisa 1997 CLC 176; Din Muhammad Wagan v. Mst. Rashida Khatoon through L.Rs. 2002 CLC 1573; Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829 and Mst. Sharifan Bibi and others v. Abdul Majeed Rauf and others PLD 2012 Lah. 141 ref.
Muhammad Ameen for Plaintiffs.
K.A. Wahab for Defendant No.1.
City District Govt., Karachi (Nemo) for Defendant No.2
2018 Y L R 1639
[Sindh]
Before Adnan-ul-Karim Memon, J
FAIZ MUHAMMAD and another---Petitioners
Versus
INSPECTOR GENERAL OF POLICE SINDH and 6 others---Respondents
C.P. No.S-770 of 2017, decided on 13th July, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Application for registration of case against proposed accused was dismissed by Ex-Officio Justice of Peace---Contention of petitioners was that they were brothers and owners of agriculture land approximately fifty six acres, wherein they were farming and had fishing pond comprising of seventeen acres---Accused person's came there with deadly weapons and snatched fishes valuing Rs. 2,00,000/= as well as crops valuing Rs. 1,50,000 and extended threats of dire consequences of life---Petitioners approached the higher authorities of police for taking action against the accused persons but nothing was done---Petitioners had filed application under Ss. 22-A & 22-B, Cr.P.C. to the Ex-officio Justice of Peace for direction to the SHO for registration of FIR, but the application was dismissed on the ground that petitioners and accused were at disputed terms over landed property and there was civil litigation between them---Validity---Admittedly, there was civil dispute between the parties, therefore the petitioners had remedy under the law for redressal of their grievance and the extraordinary jurisdiction of the Court under Art. 199 of the Constitution could not be invoked to resolve civil dispute between the parties---Petitioners had a remedy to file a private complaint about snatching of fishes and crops---High Court had no jurisdiction to decide disputed question of facts in Constitutional petition---Record showed that petitioners had failed to produce convincing material to substantiate their claim for issuance of directions for registration of FIR---Petitioners had failed to make out a case for indulgence of High Court---Constitutional petition was dismissed in circumstances.
Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.
Hafeezullah Khan Niazi for Petitioners.
Ms. Yasmin Sultana, State Counsel for Respondents Nos.1 to 4.
Respondent No. 5 in person.
2018 Y L R 1645
[Sindh]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
SUNNY---Applicant
Versus
The STATE---Respondent
Criminal Bail Applications Nos. 630 and 631 of 2017, heard on 19th February, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.353, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.25(1)---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, common intention, act of terrorism, possessing unlicensed arms---Bail, grant of---Further inquiry---Accused and co-accused, as per the FIR, both sustained firearm injuries on their right leg, but medical certificate had shown that both had sustained firearm injuries on their left legs---Ocular evidence was contradictory to medical evidence and prosecution could not explain such contradiction---None from the Police party had received firearm injury---Application of S.324, P.P.C., was to be determined at trial after recording evidence---Accused was in custody since 1-12-2016---More than one year had passed, but trial was not completed---All prosecution witnesses being Police personnel, no question of tampering with evidence arose---Sufficient grounds existed for further inquiry into guilt of accused---Benefit of doubt, would go to accused even at bail stage---From tentative assessment of the material available on record, it was to be seen that prima facie case for grant of bail to accused was made out---Case of accused requiring further inquiry, concession of bail was extended, in circumstances.
Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.
Abdul Irfan for Applicant.
Muhammad Iqbal Awan for Respondent.
2018 Y L R 1655
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
MUBARAK---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-476 of 2016, decided on 8th June, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497--- Bail--- Scope--- Mere appearance of one's name in FIR was not sufficient to snatch his liberty---Law required prima facie existence of reasonable grounds so as to believe that accused was guilty of an offence and while making tentative assessment judicial scale would be allowed to tilt wherever the available material took it.
Zaigham Ashraf v. State and others 2016 SCMR 18 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Scope---If the accused succeeded in showing absence of reasonable grounds towards his being guilty, he would be entitled for grant of bail not as a matter of grace but as of right.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Scope---Question of vicarious liability was one of further inquiry unless other compelling reasons existed to reach a different conclusion.
2010 SCMR 1178 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Common intention---No active role was assigned to accused except that of his alleged presence at the crime spot---Co-accused persons were charged and placed in column No. II of report submitted by Investigating Officer---Deceased received one injury which was categorically assigned to co-accused---Prima facie no other exceptional circumstances existed to attract principle of common intention and requiring further probe---Bail was granted accordingly.
2014 SCMR 1347; 2012 SCMR 1137; 2016 MLD 886 and 2014 PCr.LJ 1415 ref.
Zaigham Ashraf v. State and others 2016 SCMR 18 and 2010 SCMR 1178 rel.
Hameedulah Dahri for Applicant.
Muhammad Jameel Khan for the Complainant.
2018 Y L R 1664
[Sindh]
Before Muhammad Iqbal Mahar, J
MUHAMMAD TAQI KHAN---Petitioner
Versus
DARULULOOM QADRIA RIZVIA TRUST through Trustee and 2 others---Respondents
Constitution Petition No. S-46 of 2015, decided on 13th October, 2017.
Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Eviction petition---Wilful default by tenant---Personal bona fide need of landlord---Tenant contended that amount paid as Pugri was not considered by the Rent Controller---Validity---Evidence of the landlord was consistent on the point of default and personal bona fide need and tenant could not show that the act of landlord was tainted with malice---Tenant, in his cross-examination had admitted the default---Nothing had been brought in evidence in respect of alleged amount of Pugri, as neither any receipt had been produced nor any witness had been examined and landlord had denied the same in his cross-examination---Findings of facts had been recorded by two courts below which were based on appreciation of evidence---Constitutional petition was not an appeal from a subordinate court nor could embark upon reappraisal of evidence---High Court under Art. 199 of the Constitution had only to see jurisdictional defect or illegality floating on the record---No interference in the extra ordinary constitutional jurisdiction was warranted in circumstances---No illegality or infirmity having been noticed, tenant was directed to vacate the subject shop and hand over its vacant possession to the landlord within 60 days from the date of judgment---Constitutional petition was dismissed.
Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 ref.
Adnan Usman for Petitioner.
Fazal-e-Rabbi for Respondent.
2018 Y L R 1690
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
ABDUL SATTAR---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-138 of 2017, decided on 6th June, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 324, 504 & 34---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Bail, refusal of---Name of accused was mentioned in FIR with specific role---Injury was caused to prosecution witness on back of his chest below the neck; which could not be said to be vital part of his body but it had entailed impairment of organs which according to opinion of Medical Board fell under S.336, P.P.C.---Case of co-accused (admitted to bail) was distinguishable from that case of present accused because co-accused was attributed the role of causing ineffective firing---Delay in lodging FIR was no ground for grant of bail if accused appeared to be linked with alleged offence---Reasonable grounds existed for believing that accused was guilty of alleged offence---Bail was refused accordingly.
Ghulam Hussain Malano for Applicant.
2018 Y L R 1695
[Sindh]
Before Adnan ul Karim Memon, J
STATE through Prosecutor General, Sindh---Appellant
Versus
WASEEM FARAZ---Respondent
Criminal Acquittal Appeal No. 252 of 2012, decided on 26th July, 2017.
(a) Arms Ordinance (XX of 1965)---
----S. 13-D---Criminal Procedure Code (V of 1898), S. 249-A---Possession of unlicensed arms---Appreciation of evidence---Appeal against acquittal---Prosecution case was that 9-MM pistol with loaded magazine (without bullets) was recovered from the possession of accused---Accused at the time of arrest was also booked in a murder case registered under Ss. 302, 397 & 34, Penal Code, 1860---Accused during the trial, moved application under S.249-A, Cr.P.C.---Trial Court accepted the said application and acquitted the accused---Validity---Record showed that accused was acquitted on the sole ground that period of one year had lapsed after framing of charge but, none of the prosecution witnesses turned up to record evidence inspite of coercive method adopted by the Trial Court---Accused was languishing in jail without any progress in the trial---Case diaries of the case showed that on several date of hearings of the trial, jail authority did not produce accused for evidence---On almost five dates, the Presiding Officer was on leave, the case could not proceed---Accused facing trial without any progress was hardly a ground for acquittal without recording evidence---Prima-facie, the charge against accused was not groundless as he was caught red-handed with crime weapon---Trial Court had wrongly applied S.249-A, Cr.P.C., therefore, no sanctity could be attached to the impugned order---Trial Court had ignored the fact that accused was facing murder charge under S.302, Penal Code, 1860 in another case---Circumstances established that impugned order was perverse, arbitrary, which was not sustainable and suffered from factual and legal infirmity---Appeal against acquittal was allowed by setting aside the order passed by the Trial Court and case was remanded to Trial Court with the direction to conclude the case after recording evidence of the parties.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 342 & 340---Principle---Matter was to be disposed of on merits after recording of prosecution evidence, statement of accused under S.342, Cr.P.C. and under S.340(2), Cr.P.C., if so desired and hearing the arguments of both the parties.
State through Advocate General Sindh v. Raja Abdur Rehman 2005 SCMR 1544 rel.
Ms. Seema Zaidi, D.P.G. for Appellant.
Zafar Ali Sipyo for Respondent.
2018 Y L R 1711
[Sindh (Hyderabad Bench)]
Before Khadim Hussain M. Shaikh, J
KHALILUR REHMAN---Applicant
Versus
2nd ADDITIONAL SESSIONS JUDGE, MIRPURKHAS and 6 others---Respondents
Criminal Transfer Application No.S-126 of 2016, decided on 14th July, 2017.
Criminal Procedure Code (V of 1898)---
----S. 526---Transfer of case---Transfer of sessions cases were sought from place "M" to place "T" on the ground that both the parties hailed from place "T" and the incident took place within the territorial jurisdiction of court at place "T"---Validity---Record transpired that earlier the sessions cases were withdrawn from the court at place "T" and were transferred to the court at place "M"---Admittedly, said orders had not been called in question by the applicant---No progress in the cases before the transferee Trial Court at place "M" had been made due to delay caused by both the parties by seeking adjournments on one pretext or the other---Record reflected that applicant party was instrumental in delay of the trial before the court at place "M"---Circumstances established that no case for re-transfer of the cases from the court at place "M" to the court at place "T" had been made out and the applicant by filing the present application had made an attempt to hamper the proceedings of the cases---Application for re-transfer of cases was dismissed in circumstances.
Muhammad Akhtar Bhatti for Applicant.
Muhammad Yousuf Leghari for Respondent No.2.
2018 Y L R 1726
[Sindh]
Before Ahmed Ali M. Sheikh C J and Omar Sial, J
MEHBOOB ALAM alias MADNI and others---Appellants
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos.108, 109, 134 and 135 of 2016, decided on 13th July, 2017.
Penal Code (XLV of 1860)---
----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(ff)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, Act of terrorism, possessing unlicensed pistol, attempt to cause explosion, or for making or keeping explosive substance with intent to endanger life or property, possessing explosive under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that police party spotted four suspicious persons and a shoot-out ensued---Accused persons, however, managed to escape---Police registered FIR under Ss. 324, 353 & 34, P.P.C.---Accused persons were arrested on spy information---Pistols 30-bore and hand grenades were recovered from the possession of accused persons---Record showed that accused persons had been acquitted in the case registered under Ss. 324, 353 & 34, P.P.C., which was a set back to the entire prosecution case---State did not prefer appeal against their acquittal which therefore attained finality---Memo of arrest and recovery had no description of the seized weapons, which would help in proving that the weapons seized were the same which were sent for Ballistic examination and produced in trial---Prosecution witnesses and the memo of arrest and recovery showed that the pistol recovered from accused with four bullets was seized and sealed on the spot---Report of Ballistic Expert, however revealed that the pistol was sent along with three bullets, which suggested tampering of case property---Seizure of weapons and the grenades was said to have been made on 3.3.2014, whereas the Bomb Disposal Unit Expert deposed that he received a request for examining the seized grenades on 21.3.2014---No explanation was given as to how and where the unsealed grenades were kept during said period---No explanation was available for the inordinate delay in having the grenades examined---Bomb Disposal Unit Expert deposed during trial that the grenade had 65 grams of explosive in the same---Clearance certificate issued by the said witness indicated that no explosive material was found---No effort was made by the Investigating Officer to establish that the accused had a design to commit terrorism---Admittedly, the grenades were without detonators and even if the accused persons wanted to cause damage, they would have not been able to do so---First Information Report showed that accused persons were professional militants who were also target killers, however the prosecution had failed to produce their past criminal record---Record showed that accused persons were arrested on 3.3.2014, whereas the accused persons and witnesses deposed that they were picked up from their houses on 1.3.2014-- Investigating Officer deposed that accused persons were arrested on 1.3.2014, which cast a shadow of doubt over the entire prosecution case and upon the veracity and credibility of the prosecution witnesses---Circumstances established that prosecution was unable to prove its case beyond reasonable doubt, benefit of which would resolve in favour of accused persons---Accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Rana Khalid Hussain for Appellant No.1.
Musthaq Ahmed for Appellant No.2.
Abrar Ali Khichi, A.P.G. for the State.
2018 Y L R 1735
[Sindh (Hyderabad Bench)]
Before Khadim Hussain M. Shaikh and Muhammad Iqbal Kalhoro, JJ
HAKIM through L.Rs and others---Petitioners
Versus
MEMBER, (R&S), BOARD OF REVENUE, SINDH, HYDERABAD and 5 others---Respondents
C. P. No.D-918 of 2011, decided on 31st January, 2018.
Sindh Land Revenue Act (XVII of 1967)---
----S. 163---Limitation Act (IX of 1908), S. 5---Re-construction of revenue record by the revenue officer---Review---Limitation--- Condonation of delay---Scope---Revenue record of Taluka was destroyed and Revenue Officer re-constructed the same after holding inquiry---Appeal against such inquiry was filed which was dismissed being time-barred---Revision against the said was dismissed as withdrawn---Second revision was filed after eleven years from dismissal of first revision petition and review petition was also dismissed---Validity---Petitioners filed appeal after more than twelve months without any explanation for such inordinate delay---No application for condonation of delay in filing of appeal was moved---Second revision petition filed after eleven years of dismissal of first revision was not competent---Review petition moved before Board of Revenue to revive the dead matter was rejected---No illegality had been pointed out in the impugned order by the Member Board of Revenue---Constitutional petition was dismissed in circumstances.
Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others 2004 SCMR 1524; Abdur Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another 2006 CLC 543 and Haji Abdul Haq and others v. Province of Punjab and others 2007 SCMR 1524 distinguished.
Muhammad Hussain Bajeer for Petitioners.
Allah Bachayo Soomro, Additional, A.G. for Respondents.
2018 Y L R 1743
[Sindh]
Before Aftab Ahmed Gorar, J
MUKHTIAR ALI and others---Applicants
Versus
The STATE---Respondent
Criminal Bail Applications Nos. 843 and 1298 of 2017, decided on 27th October, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 496-A, 376, 114 & 34---Enticing or taking away or detaining woman with criminal intent, rape, abettor present when offence committed, common intention---Bail, refusal of---Accused was directly charged by name by the victim in her statement recorded under S.164, Cr. P. C. for committing rape---Allegation against co-accused real brother of victim was that he in collusion of other co-accused kidnapped the victim along with her children and left them at the house where accused and co-accused committed rape with the victim---Co-accused real brother of victim also demanded Rs. 5,00,000/- from husband of victim for their release---Recovery of victim from secret place proved that victim was kidnapped and detained there---Contention that accused persons had been charged falsely with ulterior motive was misconceived because it was not possible for a woman to falsely implicate the accused in such an offence which could remain a stigma not only for her life but also for the whole family---Medical report showed that victim was subjected to rape---Non-availability of Forensic Science Laboratory Report and Deoxyribonucleic Acid Test (DNA) was not sufficient for grant of bail---Sufficient material particularly medical evidence was available on record---Bail was refused accordingly.
Muhammad Naveed v. State 2000 SCMR 150 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Tentative assessment---Scope---Court would observe tentative assessment for deciding bail application and deeper appreciation of evidence was not required.
Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. The Zubair and 4 others PLD 1986 SC 163 rel.
Zeeshan Haider for Applicant (in Cr. Bail Application No.843 of 2017).
Abdul Wahab Baloch for Applicant (in Cr. Bail Application No. 1298 of 2017).
Ms. Rahat Ehsan, Additional Prosecutor General, Sindh for Respondents.
2018 Y L R 1749
[Sindh]
Before Irfan Saadat Khan and Aziz-ur-Rehman, JJ
KHURSHEED ALI---Petitioner
Versus
3rd ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI SOUTH and 4 others---Respondents
Constitution Petition No. D-6430 of 2017, decided on 22nd November, 2017.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Suit for declaration---Fraud and misrepresentation---Scope---Decree, setting aside of---Scope---Applicant was party in the suit which had been decided by the Court---None of the parties had filed appeal against the impugned judgment and decree---Application under S.12(2), C.P.C. was not a substitute of an appeal---Impugned judgment and decree had attained finality in circumstances---Mere using the words fraud and misrepresentation itselves were not sufficient to bring the case within the scope of S.12(2), C.P.C.---Question of alleged fraud and misrepresentation did not arise in the present case---Remedy available under S.12(2), C.P.C. was not like the remedy as in the regular suit---Court could dispose of application under S.12(2), C.P.C. without framing issues and recording evidence of the parties or otherwise following the procedure for trial of the suit---Lack of knowledge was not a good/enough reason for bypassing the available legal remedies---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed in circumstances.
Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 SC 226 and Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR 959 rel.
(b) Civil Procedure Code (V of 1908)---
----O. I, R. 10---Suit for declaration---Petition for impleadment of a party in a case which had been disposed of or decreed---Maintainability---Application for impleadment of a party in the disposed of/decreed suit was not maintainable/ entertainable---Court upon passing a decree or disposal of the case had become functus officio---Application was rightly dismissed through impugned order---Constitutional petition was dismissed in circumstances.
Muhammad Umar and another v. Gul Muhammad through L.Rs. and 4 others 2010 CLC 397 rel.
(c) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Concurrent findings of law and facts were immune from interference until there appeared illegality, irregularity, mis-reading and/or non-reading of evidence.
Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 rel.
(d) Words and phrases---
----'Functus officio'---Meaning.
Law Lexicon Venkatraramaiya rel.
Muhammad Nasim Shad for Petitioner.
Syed Miran M. Shah, Addl. A.G., Sindh for Respondents Nos.1 and 2.
Muhammad Arif Khan for Respondent No.3.
Respondents Nos.4 and 5 in person.
2018 Y L R 1768
[Sindh (Hyderabad Bench)]
Before Muhammad Iqbal Kalhoro, J
CHIRAGHUDDIN---Petitioner
Versus
MUHAMMAD SHAREEF and 2 others---Respondents
Constitution Petition No. S-623 of 2014, decided on 8th December, 2017.
Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Ejectment of tenant---Personal bona fide need of landlord---Tenant to counter the application for ejectment had emphasized that since in the rent agreement, it was provided that the landlord would not file any ejectment proceedings against the tenant on the ground of personal use; landlord was precluded from filing ejectment application being bound by the terms of the said agreement---Validity---Landlord, no doubt was bound by the terms and conditions of the rent agreement entered by him with the tenant, but such construction of the deed would be presumed when the terms and conditions of the rent agreement, were not in conflict with the provisions of the law governing relations between the parties---Law recognized the right of the landlord to file ejectment application on personal bona fide use, which would not stand abridged just because a condition holding such right had been stipulated in the rent agreement signed by him---Such a condition in the rent agreement would not be considered having overriding effect over the very provisions of law regulating such agreements and the consequential relations between the parties---Contention of the tenant that the landlord was not competent to resort to ejectment proceedings against the tenant on the ground of personal bona fide use, was not sustainable---Evidence of the landlord that he was jobless and required the shop in question for his personal bona fide need, had not been rebutted---Said findings being based on proper appreciation of evidence, need not be interfered with---Order accordingly.
PLD 1998 SC 190; 1997 MLD 3232; 1985 CLC 1997; 1997 MLD 2725; 1988 SCMR 819; 1989 SCMR 1366 and Shakeel Ahmed and another v. Muhammad Tarique Farogh and others 2010 SCMR 1925 ref.
Arbab Ali Hakro for Petitioner.
2018 Y L R 1800
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
SHAH ZAMAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-776 of 2016, decided on 30th January, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Bail, grant of---Further inquiry---Enmity existed between the parties and both the parties had filed criminal cases against each other---Plea of sharing common intention in such like cases, would always be one of further probe, particularly when accused who was allegedly present at scene without any active role---Accused though was allegedly shown present at place of incident with pistol, but had not been attributed any active role whatsoever---Alleged place of incident from where the shot was fired was not claimed to be the place of the complainant party, but from the roof of house of accused which was adjacent to the house of deceased person---Said position had strengthened plea of widening of net, as mere availability of accused at such place would not constitute an offence, unless it was established that his presence was not only premeditated, but in result of common object---Vicarious liability, could be thrashed out after recording evidence, which could only be done by the Trial Court---Nothing had been recovered from possession of accused and he was also not required by the prosecution for any purpose but had been in continuous confinement for more than one and half year and trial was yet to commence---Accused was not alleged to have caused any injury to the deceased---Case of accused falling within the scope of further inquiry, he was admitted to bail, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail--- Benefit of doubt---Scope---Benefit of doubt, at bail stage goes in favour of accused.
Zaigham Ashraf's case 2016 SCMR 18 rel.
(c) Administration of justice---
----Each and every case was to be decided on its own peculiar facts and circumstances.
Mohsin Ali's case 2016 SCMR 1529 and Muhammad Aslam's case 2016 SCMR 2094 ref.
Nisar Ahmed Durrani for Applicant.
Shahid Ahmed Shaikh, A.P.G. for the State.
Syed Muhammad Waseem Shah for the Complainant.
2018 Y L R 1805
[Sindh]
Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ
ABDUL RAZZAQ---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1230 of 2017, decided on 25th October, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (XI of 1908), Ss.4 & 5---Act of terrorism, recovery of dangerous explosive material---Bail, refusal of---Police Officials, upon the pointation of accused, dug the earth and recovered two shoppers, containing ball bearings, off-white colour explosive powder, one detonating cord and non-electric detonator, in the presence of Mashirs; who had no enmity with the accused---Recovered material was sent to Additional Director, FIA, Counter Terrorism Wing, for examination/report of said explosive material and report in that respect was positive---Dangerous explosive material was recovered from the pointation of accused, which was grave offence, punishable for a term extending ten years---Police personnel were as good witnesses as any other persons and private persons of the locality were not required in the case of recovery, where accused himself had led the Police to a particular place and had got explosive substance recovered in view of Art.40 of the Qanun-e-Shahadat, 1984---Challan had already been submitted, deeper appreciation of evidence was not permissible---Prima facie, reasonable grounds appeared for believing that accused had committed the alleged offence---Bail application was dismissed, in circumstances.
Muhammad Noman v. The State 2017 SCMR 560; Shan v. The State 2015 PCr.LJ 747; Zainul Abidin v. The State 2010 MLD 173; Muhammad Khalid Qureshi v. The State 2009 PCr.LJ 381 Javid-ur-Rehman and another v. The State 2010 SCMR 1744 and Abdul Sattar and 2 others v. The State 2013 YLR 1364 ref.
Ms. Rizwana Mughal for Applicant.
Muhammad Afzal, Special Prosecutor for the State.
2018 Y L R 1810
[Sindh]
Before Aftab Ahmed Gorar, J
ZIA-UR-REHMAN---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1294 of 2017, decided on 17th October, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 322, 337-G, 279 & 114---Qatl-bis-sabab, hurt, rash driving or riding on a public way, abettor present when offence committed---Bail, grant of---Further inquiry---Complainant had alleged that co-accused while driving a coach in a negligent manner hit the deceased persons, and on turning down of the coach three persons were injured---Co-accused (driver) absconded after the alleged incident---Accused, owner of said coach, was not driving at the time of alleged incident---Accused, being owner of said coach had handed over the vehicle to the driver after proper verification of driving license---Reasonable grounds showed accused's innocence---Case of accused required further inquiry---Bail was granted accordingly.
Shabeer v. The State 2012 SCMR 354; Aamir v. The State 2006 PCr.LJ 1236; Shaikh Muhammad and another v. The State and another 2013 YLR 248 and Raja Muhammad Akram Khan v. Mazhar Iqbal and 2 others 2004 Cr.LJ 985 ref.
Yar Muhammad v. The State and another 2004 YLR 2230; PLD 1989 SC 585 and Munir v. The State 2002 MLD 712 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497--- Bail--- Further inquiry--- Scope---Bail would be granted as a matter of right and not by way of any concession or grace in case of further inquiry.
(c) Constitution of Pakistan---
----Art. 4---Life and liberty of citizen---Scope---Life and liberty of a citizen was very precious and guaranteed by Art. 4 of the Constitution.
PLD 1989 SC 585 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 497--- Bail--- Further inquiry--- Scope---Bail was refused to accused on the consideration of commencement of trial but such consideration would be based purely upon propriety---Question of propriety whenever was confronted by a question of right the latter must prevail and commencement of trial would pose no insurmountable hurdle in the way of bail when accused succeeded in making out a case of further inquiry.
Munir v. The State 2002 MLD 712 rel.
Aamir Jamil for Applicant.
Ms. Seema Zaidi, D.P.G., Sindh for the State.
2018 Y L R 1831
[Sindh]
Before Mrs. Kausar Sultana Hussain, J
MUHAMMAD AHSAN MUSHTAQ PARACHA---Applicant
Versus
Sheikh ARIF-UR-REHMAN---Respondent
Civil Revision Application No.26 of 2016, decided on 2nd April, 2018.
(a) Civil Procedure Code (V of 1908)---
----S.96---Limitation Act (IX of 1908), S.5--- Appeal--- Limitation--- Condonation of delay---Sufficient cause---Appellate court dismissed appeal being time-barred---Contention of appellant was that his counsel was ill and he had proceeded to perform Hajj---Validity---Illness of any party was beyond his/ her control---Appellant had right to proceed for performing his religious obligation/duty---Appellate Court was obliged to consider the plea raised by the appellant and his counsel in application under S.5 of Limitation Act, 1908---Question of limitation would not arise in case of setting aside a void order---Matter was remanded to the Appellate Court with the direction to decide the same on merits---Revision was allowed in circumstances.
PLD 2015 SC 1 and PLD 2001 SC 355 rel.
(b) Limitation---
----Void order---Question of limitation would not arise in case of setting aside a void order.
Muhammad Taqi for Applicant.
Munir-ur-Rehman for Respondent.
2018 Y L R 1865
[Sindh]
Before Mrs. Kausar Sultana Hussain, J
ADEEL SHABAN HIRANI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.1733 of 2017, decided on 20th February, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.489-F, 420 & 34---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property, common intention---Bail, refusal of---Two cheques, issued by accused to the complainant, were presented in the Bank, but were bounced with endorcement that "account closed"---Accused, after lodging of FIR, became fugitive of law for considerable time---Police record showed that accused had issued number of cheques to several persons, which were also bounced---Accused was habitual in committing fraud---Accused had absconded in order to avoid his arrest for a long time and deliberately issued cheques of account which was closed---Accused, was not entitled to grant of bail, in circumstances.
Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 distinguished.
Muhammad Nisar Warsi for Applicant.
Abdul Karim Lakhair for the Complainant.
Muntazir Mehdi, D.P.G. for the State.
2018 Y L R 1875
[Sindh]
Before Syed Hasan Azhar Rizvi and Abdul Maalik Gaddi, JJ
SIRAJ and others---Appellants
Versus
The STATE---Respondent
A.T.A. Appeals Nos.42, 43, 51, 82, 83, 84 and 85 of 2016, decided on 19th June, 2017.
(a) Anti-Terrorism Act (XXVII of 1997)---
----Ss.6 & 7---Act of terrorism---Proof---Applicability of S.7, Anti-Terrorism Act, 1997---Every section of Anti-Terrorism Act, 1997, has independent definition and punishment for offences---Prosecution is obliged to prove the same as per requirement of law, besides proving allied offences---Section 7, Anti-Terrorism Act, 1997 has been applied, therefore, it is to be seen whether before applying S.7 of Anti-Terrorism Act, 1997, requirement of S.6 of Anti-Terrorism Act, 1997 has been fulfilled---Such aspect is to be seen with allegation on record and as to whether material collected by investigating officer and surrounding circumstances depicted commission of offence and whether a particular act is an act of terrorism or not---Motivation, object, design or purpose behind act has to be seen.
(b) Anti-Terrorism Act (XXVII of 1997)---
----Ss. 6 & 7---Penal Code (XLV of 1860), Ss. 324, 353, 186---Explosive Substances Act (V of 1908), Ss.4 & 5---Sindh Arms Act (V of 2013), S.23 (i)(a)---Terrorism, attempt to commit qatl-i-amd, recovery of weapon, use of explosive substance---Police encounter---Proof---Appreciation of evidence---Accused persons were alleged to have committed police encounter and they were convicted by Trial Court and sentenced variously maximum up to imprisonment for fourteen years---Validity---Nobody received any injury from police side even no bullet was hit to police mobile during the encounter---Trial Court was silent in judgment with regard to police encounter, therefore, S.7 of Anti-Terrorism Act, 1997 was misapplied---High Court set aside conviction and sentence to the extent of S. 7 of Anti-Terrorism Act, 1997 awarded to accused persons---Recovery of alleged articles from possession of accused persons though were independent offenses and as S. 7 of Anti-Terrorism Act, 1997 was wrongly applied, sentence awarded to accused persons with regard to recovery of articles was reduced to one which they had undergone---High Court maintained conviction but reduced sentence to one which accused had already undergone and fines imposed were also remitted---Appeals were dismissed in accordingly.
Hashmat Khalid, Bushra Rehman and Muhammad Lateef for Appellants.
Muhammad Iqbal Awan, Assistant Prosecutor General, Sindh for Respondent.
2018 Y L R 1906
[Sindh (Hyderabad Bench)]
Before Naimatullah Phulpoto and Muhammad Karim Khan Agha, JJ
MUHAMMAD HUSSAIN---Petitioner
Versus
DISTRICT AND SESSIONS JUDGE, MIRPURKHAS and 10 others---Respondents
Constitutional Petition No.D-1973 of 2016, decided on 19th May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Petitioner was allegedly kidnapped and tortured by the respondents and thereafter he was handed over to the Police---Petitioner was recovered on the petition filed by his brother under S.491, Cr.P.C.---Brother of the petitioner approached the police for filing FIR against the culprits but the police refused to register the case---Brother of the petitioner moved application under S.22-A, Cr.P.C. seeking direction from the Justice of Peace to lodge FIR, which was declined with the advice to the applicant to file a direct complaint---Petitioner, thereafter, filed application seeking similer relief, which was also dismissed as it was deemed to be a review of the earlier order which was not permissible---Validity---If a person approached the SHO of Police Station and wanted to make a statement concerning a crime that statement must be recorded by the concerned SHO in writing and then entered as a cognizable offence under S.154 or a non-cognizable offence under S.155, Cr.P.C.---Station House Officer had no discretion in the matter---High Court directed the SHO concerned to record the statement of petitioner without further delay and to register the same as a cognizable offence or non-cognizable offence and then proceed further in accordance with law---Constitutional petition was disposed of accordingly.
Ali Muhammad v. Syed Bibi PLD 2016 SC 484; Mushtaq Hussain v. State 2011 SCMR 45; Inayatullah Khilji v. 1st Additional District and Sessions Judge 2007 PCr.LJ 909; Mumtaz Ali v. S.H.O. Naushahro Feroz 2011 PCr.LJ 268; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556 and Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 ref.
Muhammad Bashir v. Station House Officer PLD 2007 SC 539 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 154---Registration of second FIR---Scope---Second FIR could be registered as a counter version/cross case.
Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 and Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556 rel.
Syed Haider Imam Rizvi and Abdul Rauf for Petitioners.
Syed Meeral Shah Bukhari, Deputy Prosecutor General for Respondents Nos. 1 and 2.
Abdul Aziz Memon for Respondents Nos.3 to 11.
2018 Y L R 1936
[Sindh]
Before Adnan Iqbal Chaudhry, J
MUHAMMAD SHAHID AKRAM---Plaintiff
Versus
GHULAM QADIR JUMANI and 2 others---Defendants
Civil Suit No.344 of 2007, decided on 2nd March, 2018.
Civil Procedure Code (V of 1908)---
----O. VII, R. 2, O. IX, R. 8, O. XX, Rr. 12 to 16, 18, O. XXIII, R. 3, O. XII, R. 6 & S. 2(2)---Money suit---Counter claim against the plaintiff---Non-appearance of plaintiff---Effect---Preliminary judgment and decree---Scope---Defendant made counter claim against the plaintiff---Plaintiff did not appear and his suit was dismissed for non-prosecution---Plaintiff had admitted liability to the extent of Rs.6,43,000/---Preliminary judgment and decree was passed in favour of defendant and against the plaintiff for the said amount---Defendant's remainder counter claim was to be decided after recording evidence---More than one decree could be passed in the same suit---Office was directed to prepare a preliminary decree in the counter suit.
Aijaz Haroon v. Inam Durrani PLD 1989 Kar. 304 and Bai Chanchal v. Syed Jalaluddin AIR 1971 SC 1081 rel.
None present for the Plaintiff.
2018 Y L R 1942
[Sindh (Hyderabad Bench)]
Before Abdul Maalik Gaddi, J
KIRSHAN LAL---Applicant
Versus
PERTAB RAI and another---Respondents
Cr. Misc. Appln. No.S-26 of 2017, decided on 25th May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), Ss. 365-B, 506(2) & 34---Kidnapping, abducting or inducing woman to compel for marriage, criminal intimidation, common intention---Application for cancellation of bail, dismissal of---Girl was allegedly abducted by accused persons---Abductee submitted that nobody kidnapped her and she contracted marriage with accused according to her choice being sui-juris---Prima facie, reasonable grounds did not exist for believing that accused had committed the offence---Reasons for granting bail to accused were quite sufficient and Court of Session had recorded a speaking order---Strong and exceptional grounds were required for cancellation of bail granted by a court of competent jurisdiction because provisions of S. 497(5), Cr.P.C. were not punitive---No exceptional grounds were made out for cancellation of bail---Application for cancellation of bail was dismissed accordingly.
Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Bail, cancellation of---Scope---Accused could not be deprived of the benefit of bail whenever reasonable doubt arose about his participation in the crime or about the truth or probability of prosecution case---Liberty granted to accused by court of competent jurisdiction could not be snatched from him unless it became absolutely necessary to do so.
Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.
Muhammad Jameel Ahmed for Applicant.
Altaf Hussain Khokar for Respondent No.1.
Shahid Ahmed Shaikh, A.P.G., along with ASI Muhammad Bux P.S. Tando Jan Muhammad Mirpurkhas.
2018 Y L R 1976
[Sindh]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
YOUSUF ALI KHAN GHOURI---Petitioner
Versus
The STATE through IX J.M. and 2 others---Respondents
Constitutional Petition No.D-5219 of 2016, decided on 16th March, 2018.
Penal Code (XLV of 1860)---
----Ss. 392, 506-B, 504 & 34---Criminal Procedure Code (V of 1898), S.190---Robbery, criminal intimidation, intentional insult with intent to provoke breach of peace, common intention---Powers of Magistrate---Investigating Officer submitted final report under 'B' class, but Magistrate did not agree with such report and directed the Investigating Officer to submit final report under S.173, Cr.P.C., in prescribed form---Petitioner feeling aggrieved by said order of the Magistrate had filed constitutional petition for setting aside order of Magistrate and directing him to accept the report of Investigating Officer under 'B' class---Complainant and prosecution witnesses had implicated petitioner in FIR and in their statements under S.161, Cr.P.C. ---Duty of Investigating Officer was only to collect evidence, not to decide the case---Magistrate was very much empowered under S.190, Cr.P.C., to take cognizance of the offence and he was not bound to accept the investigation conducted by Police---Magistrate had to apply his judicious mind and was very much competent to take cognizance of the offence on the final report---Impugned order being just, proper and based on overwhelming findings, no interference by High Court was called for.
Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 rel.
Abid Akram for Petitioner.
Muhammad Iqbal Awam, D.P.G. for Respondents Nos. 1 and 2.
Respondent No.3 in person.
2018 Y L R 1992
[Sindh (Hyderabad Bench)]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
NAZAR MUHAMMAD alias NAZROO---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.D-130 of 2017, decided on 17th May, 2018.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Alleged recovered charas was sent to the Chemical Examiner two days after its recovery and prosecution had failed to produce any entry of Malkhana as well as statement of incharge thereof in order to establish its safe custody---Despite the fact that case was of prior information, the complainant had admitted that neither he asked any private person to associate as mashir to witness the recovery proceedings, nor he tried so, though there were so many people available at the place---Evidence produced by the prosecution, was not reliable, trustworthy and confidence inspiring and there were material contradictions in the evidence of the prosecution witnesses---Delay of two days in sending samples of charas to Chemical Examiner could not be ignored---Report of Chemical Examiner, was also not in accordance with prescribed rules---Material contradictions were noticed in the evidence of the complainant and mashir which could not be relied upon---Prosecution having failed to prove its case against accused beyond reasonable shadow of doubt, extending benefit of doubt to accused, impugned judgment passed by the Trial Court was set aside and accused was ordered to be released forthwith.
2015 SCMR 1002; 2016 SCMR 621; PLD 2009 Kar. 191; 2017 YLR 712; 2016 PCr.LJ Note 79 and Ikramullah and others v. The State 2015 SCMR 1002 ref.
(b) Criminal trial---
----Benefit of doubt---If some reasonable doubt was created in a prudent mind, the benefit of the same, was to go in favour of accused.
Tariq Pervez v. The State 1995 SCMR 1345 ref.
Mumtaz Alam Leghari for Appellant.
Syed Meeral Shah Bukhari, Additional Prosecutor General for the State.
2018 Y L R 2003
[Sindh (Hyderabad Bench)]
Before Agha Faisal, J
GHULAM MURTAZA---Petitioner
Versus
Mst. KHURSHID LUBNA and another---Respondents
C.P. No.S-819 of 2015, decided on 27th February, 2018.
Family Courts Act (XXXV of 1964)---
----S.5, Sched. & S.17-A---Maintenance--- Quantum--- Determination--- Interim maintenance order, non-compliance of--- Striking off defence--- Petitioner was father of minor who did not comply with the order passed by Family Court regarding payment of interim maintenance allowance--- Family Court struck off the defence of petitioner and decreed the suit against petitioner--- Judgment and decree passed by Family Court was maintained by Lower Appellate Court--- Plea raised by petitioner father was that quantum of maintenance was to be based upon income and capacity of petitioner and not upon any other factor--- Validity--- Inadequacy of financial means of petitioner was duly rebutted by local commissioner's report, which was available on record before High Court and was also relied upon by the Family Court--- Means of a person were to be factored in when apportionment of maintenance was taking place--- Same was undertaken judiciously by Family Court while determining quantum of maintenance payable by petitioner--- High Court in exercise of Constitutional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as the same was in due consonance with law--- Constitutional petition was dismissed in circumstances.
M. Saleem Ahmad Siddique v. Mst. Sabira Begum and others 2001 YLR 2329; Syed Saleem Imtiaz Hussain through Syed Imtiaz Hussain v. Muhammad Salim and 2 others 2004 MLD 1548; Tauqeer Ahmad Qureshi v. Additinoal District Judge, Lahore and 2 others PLD 2009 SC 760; Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Fazlur Rehman v. Mst. Shazia Bibi and 2 others 2015 CLC 116; Munawar Rasul v. Hafsa Rasul and 2 others 2011 MLD 991; Muhammad Ashraf v. Mst. Nusrat Bibi and 3 others 2010 CLC 1411 and Abid Hussain v. Miss Sadia Luqmani Civil/Judge Family Court, Multan and 2 others 2010 YLR 960 ref.
Hakim Ali Siddiqui for Petitioner.
Khalil-ur-Rehman Pirzada for Respondent No.1.
Wali Muhammad Jamari, Assistant A.G. for the State.
2018 Y L R 2018
[Sindh]
Before Mrs. Ashraf Jahan, J
MANGAT HUSSAIN BUTT---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.291 of 2016, decided on 6th February, 2018.
Sindh Arms Act (V of 2013)---
----S. 23-A(i)---Criminal Procedure Code (V of 1898), S. 562---Possessing unlicensed arms---Power of court to release certain convicted offenders on probation---Appreciation of evidence---Sentence, modification of---Prosecution case was that one .30-bore pistol without number along with two live bullets was recovered from accused who failed to produce any license for the pistol---Trial Court sentenced the accused for two years, however, before implementing the sentence, his custody was handed over to the Probation Officer to be kept under his supervision for a period of two years being first offender, young and the only earning member of his family---Prosecution, in order to prove its case, had examined three witnesses, the complainant, mashir of arrest and recovery and the Investigating Officer---All the witnesses had supported the case of prosecution on material points as their evidence could not be shattered during the cross-examination---Recovered pistol sent for forensic examination was found to be in working condition---Record showed some contradictions in the evidence brought on record as in the FIR, time of incident was mentioned as 1.30 p.m., whereas in mashirnama it was mentioned as 2.30 p.m., but so far as the date and manner of incident were concerned, there was no contradiction in the evidence of prosecution witnesses, therefore, the same could be ignored---Accused had taken the defence that he was involved in the case at the behest of someone, with whom he had some dispute over a plot of land, but neither he opted to record his statement on oath on that point nor examined any defence witness to support his stance---Record transpired that accused had remained involved in six other criminal cases, out of which one was pending, whereas in other cases, either he had been acquitted or proceedings had been stopped---Accused did not deny or challenge his criminal record during the proceedings of the appeal---Accused had himself disclosed his age as 45 years and businesses as profession, therefore, it could not be said that accused was of young age and the only bread earner of his family---Section 562, Cr.P.C. denoted that it could be applied in the offence which was punishable with imprisonment for not more than seven years, while in the present case, the offence was punishable upto fourteen years with fine, thus it was not covered by S. 562, Cr.P.C.---Circumstances established that reasons assigned in the judgment, were contrary to the facts on record and the reasons assigned by the Trial Court for handing over the custody of the accused to the Probation Officer were perverse, erroneous and illegal, therefore could not be sustained---Judgment of the Trial Court to the extent of convicting the accused under S. 23(1)(a) of the Act, awarding him sentence for a period of two years was maintained but set aside to the extent of handing over his custody to the Probation Officer---Appeal was disposed of accordingly.
Allah Bakhsh Narejo for Appellant.
Ms. Rahat Ehsan, Addl. P.G. along with Abbas Ali Leghari, Probation Officer Reclamation and Probation, Karachi (West) for the State.
2018 Y L R 2031
[Sindh]
Before Mrs. Kausar Sultana Hussain, J
WAJAHAT ALI ZAIDI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.144 of 2018, decided on 6th March, 2018.
Criminal Procedure Code (V of 1898)---
----Ss. 497, 537 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 21 & 25 --- Possession of narcotic weighing 2250 grams--- Bail, refusal of--- More than two kilograms of Charas was allegedly recovered from the accused---Punishment provided under clause (c) of S.9 Control of Narcotic Substances Act, 1997 was either death, imprisonment for life or imprisonment for a term which might extend to fourteen years with fine which might upto one million rupees and the same fell under prohibitory clause of S.497, Cr.P.C.---Section 21 of Control of Narcotic Substances Act , 1997 dealt with power of police officer to enter, search and seize without warrant by an officer not below the rank of Sub-Inspector of police or equivalent authorized in such behalf by the government---Investigation by an unauthorized Officer was an irregularily careable under S.537, Cr.P.C.---Section 25 of Control of Narcotic Substances Act, 1997 had excluded applicability of S. 103, Cr.P.C. in such cases---Bail, in circumstances, was refused to the accused.
2009 SCMR 291; 2009 SCMR 306 and 2001 PCr.LJ 398 ref.
Qasim Niazi for Applicant.
Ali Haider Salim, D.P.G. for the State.
2018 Y L R 2039
[Sindh]
Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ
SHAHI SYED through Attorney---Appellant
Versus
TOTAL PARCO MARKETING LIMITED through Company Secretary and another---Respondents
High Court Appeal No.254 of 2016, decided on 10th January, 2018
(a) Transfer of Property Act (IV of 1882)---
----S.108---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration---License agreement---Lease of land for operation of petrol Filling Station---Privity of contract---Plaint, rejection of---Scope---Contention of plaintiff was that he was entitled to retain possession of suit land---Trial Court rejected the plaint being barred by law---Validity---Plaintiff was merely a licensee to carry on business of Filling Station and had executed agreement of service station and dealership with the Oil Company---Plaintiff had no privity of contract with the owner of suit property---Oil Company had acquired possession of suit property from its owner through lease agreement---Plaintiff was allowed temporary use of the service/filling station and sell the company's petroleum products---Plaintiff was licensee of Oil Company for a limited purpose and could not claim any right over subject property owned by the defendant---Owner of suit property had obtained an order of ejectment against the defendant-Oil Company---Defendant-Oil Company could not claim any right or entitlement to remain in possession of suit property and carry on business of selling its products---Plaintiff had no cause of action to seek enforcement of any contractual obligations---Suit was barred by law---Dispute with regard to possession of suit property had already been decided by Rent Controller---Court was bound not only to examine the territorial/monitory jurisdiction but maintainability of a suit in the first instance---Parties were not to be allowed to abuse the process of law by filing frivolous proceedings in the Court---Frivolous proceedings should be put to an end at a very initial stage---Impugned order did not suffer from any factual error or legal infirmity---Appeal was dismissed in limine in circumstances.
Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 rel.
(b) Easements Act (V of 1882)---
----S. 52--- 'License'--- Connotation.
Black's Law Dictionary rel.
Salahuddin Ahmed along with Salman Mirza for Appellant.
Iftikhar Javed Qazi for Respondent No.1.
Amel Kansi for Respondent No.2.
2018 Y L R 2059
[Sindh (Larkana Bench)]
Before Muhammad Iqbal Kalhoro and Irshad Ali Shah, JJ
RIAZ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. D-08 along with Criminal Reference No. D-02 and Criminal Jail Appeal No.D-11 of 2017, decided on 6th March, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Delay of about four days in lodging of FIR---Record showed that FIR was lodged with delay of about four days of the incident---Prosecution witnesses had stated that FIR was lodged after due consultation with the elders---No elder who was allegedly consulted by the complainant before the lodging of FIR was examined by the police during the course of investigation or at trial---Delay in lodging of FIR could not be lost sight of in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons in furtherance of their common intention abducted the minor boy and then demanded Rs. five lac as ransom for his release from his parents---Record showed that the complainant during the course of his examination had stated that both the accused present in court were not the same ones who abducted the minor---Complainant thus belied his FIR, wherein it was stated by him that both the accused abducted the minor and then demanded from him the ransom of Rs. five lac for his release---Record transpired that abducted boy was recovered from the accused by the police after encounter, which was allegedly continued for about ten minutes, yet none from the police personnel sustained any fire shot injury at the hands of accused persons---Abducted boy was recovered safely from the accused persons after causing fire shot injury to the accused, which appeared to be significant and smelled of doubt because it had come on record that the boy was present on the middle of the road and on the both sides of the road the parties were present and exchanging direct firing---Mother of the abducted boy stated that the boy was recovered from the house of accused---Mashirnama of arrest and recovery, showed that numbers on the pistols allegedly secured from the accused persons, were found erased, but during course of examination, it was admitted by the mashir that one of the pistols produced in the court had the number on its barrel---Recovery of pistol from co-accused could be said to be doubtful---Investigating Officer did not record statement of any person from the locality about involvement of the accused persons in commission of the incident---Investigating Officer recorded statements of parents of the abducted boy under S.161, Cr.P.C. with delay of about eight days, which could not be lost sight of---Mother of the abducted boy stated that one of the accused was her cousin as such known to the complainant party---Abduction of boy with demand of ransom, if seen with the delay in lodging of FIR, appeared to be doubtful---Circumstances established that the involvement of the accused persons in the case was not free from doubt, benefit of which would resolve in favour of accused persons---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentence recorded against them by the Trial Court.
Tiloo and others v. The State 2007 YLR 239; Muhammad Akram v. The State 2009 SCMR 230; Gul Muhammad alias Guloo v. The State 2004 YLR 216; Azmat Ali v. The State 2012 YLR 1152; Muhammad Rafique through Muhammad Anwar v. The State PLD 2008 Lah. 268 and Muhammad Tufail v. The State 2010 PCr.LJ 1389 ref.
Ahmed Bux Abro for Appellant (in Criminal Appeal No.D-08 of 2017).
Aijaz Ahmed Bhatti for Respondent (in Criminal Appeal No.D-11 of 2017).
Khadim Hussain Khooharo, Additional Prosecutor General for the State.
2018 Y L R 2091
[Sindh]
Before Agha Faisal, J
Messrs DELUXE INTERIORS through Managing Partner and Authorized person---Plaintiff
Versus
SINDH INDUSTRIAL TRADING ESTATES (SITE) LTD. through Secretary and others---Respondents
Suit No.2431 of 2017, decided on 16th February, 2018.
Civil Procedure Code (V of 1908)---
----S. 21 & O. VII, R. 10---Suit for declaration and permanent injunction pertaining to the land outside the territorial limits of the districts of Karachi---Territorial jurisdiction of Karachi Bench of Sindh High Court at the original side---Scope---Dispute with regard to title of land situated outside the territorial jurisdiction of districts of Karachi could not be entertained or adjudicated by Karachi Bench of Sindh High Court---Suit having been preferred before wrong forum, plaint was returned to the plaintiff for its presentation before the court of appropriate jurisdic-tion.
Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others 2003 SCMR 990; Itehad Cargo Services, National Hotel, Lahore and 2 others v. Rana Rafaqat Ali and 3 others PLD 2002 Kar. 420; Messrs Popular Pharmacy, Karachi v. Messrs Nova Bio Medical and others PLD 1996 Kar. 411 and Messrs Sh. Muhammad Amin and Co. v. The Provincial Industrial Development Corporation 1991 CLC 684 distinguished.
Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176 and Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others PLD 2010 Kar. 261 rel.
Ziyaad Khan Abbasi for Plaintiff.
Khursheed Javed and Muhammad Ameen for Defendant No.2.
2018 Y L R 2107
[Sindh]
Before Ahmed Ali M. Shaikh, C.J. and Mohammad Karim Khan Agha, J
Ch. MUHAMMAD ASHRAF, ADVOCATE HIGH COURT---Petitioner
Versus
FEDERATION OF PAKISTAN through Chairman, NAB, Islamabad and 2 others---Respondents
C.P. No.7083 of 2016, decided on 14th December, 2017.
National Accountability Ordinance (XVIII of 1999)---
----Ss. 9(b) & 16(a)---Constitution of Pakistan, Art. 199--- Constitutional petition--- Bail, grant of--- Delay in conclusion of trial--- Effect--- Petitioner was in custody and facing trial under National Accountability Ordinance, 1999--- Plea raised by petitioner was that delay in conclusion of trial was violation of mandatory requirements of law--- Validity--- No express consequences/ sanctions were provided by Legislature in the event that S.16(a) of National Accountability Ordinance, 1999, was not complied with, therefore, the provision was directory in nature rather than mandatory despite word 'shall' was used--- Some of co-accused including the petitioner moved criminal transfer application before High Court and since then they had been deliberately not been proceeding with the reference despite there was no stay against the proceedings--- Delay in completion of trial was due to petitioner and his co-accused--- Bail was refused in circumstances.
Aga Jahanzeb v. NAB 2005 SCMR 1666; Muhammed Nadeem Anwar v. NAB PLD 2008 SC 645; Jamshed Hassan Butt v. MCB Bank Ltd. 2015 CLD 1894; Messrs Wazir Khan Store v. UBL 2015 CLD 1729 at P.1736; Collector of Sales Tax Gujranwalla v. Messrs Super Asia Mohammed Din and Sons 2017 SCMR 1427; Abdul Aziz Memon v. The State PLD 2013 SC 594; Rai Mohammed Khan v. NAB 2017 SCMR 1152 and Asfandyar Wali Khan's case PLD 2001 SC 607 ref.
Petitioner in person.
Muhammad Altaf, Special Prosecutor, NAB for Respondents.
2018 Y L R 2128
[Sindh (Hyderabad Bench)]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
IRFAN ALI and another---Appellants
Versus
The STATE---Respondent
Cr. Jail Appeals Nos.D-41 and D-43 of 2016, decided on 18th April, 2018.
Criminal Procedure Code (V of 1898)---
----S.353---Penal Code (XLV of 1860), Ss. 365-A & 395---Constitution of Pakistan, Art.10-A---Kidnapping or abducting for extorting property, valuable securities, dacoity--- Appreciation of evidence---Fair trial---Scope---Evidence to be taken in presence of accused---Trial Court recorded the evidence of as many as seven prosecution witnesses in absence of accused---Procedure adopted by the Trial Court was not in accordance with law, because accused were condemned unheard as they were not provided an opportunity to cross-examine the prosecution witnesses whose evidence was recorded in their absence and taking such evidence into account, accused persons were convicted---Trial Court while convicting accused persons had not taken into account prescribed law as envisaged under Art.10-A of the Constitution; which guaranteed for fair trial in order to determine the civil as well as criminal rights of any citizen---Accused having not been afforded a fair trial and they having been condemned unheard in violation of law and Constitution, their appeals were partly allowed; conviction and sentence, recorded by the Trial Court, were set aside and case was remanded to the Trial Court with direction to record the evidence of the prosecution witnesses by affording the opportunity to accused persons to cross-examine witnesses and pass judgment afresh within three months positively after hearing both the parties in accordance with law.
Allah Dino and 2 others v. The State 2018 PCr.LJ 200 and Muhammad Saddique v. The State 2018 SCMR 71 rel.
Shoukat Ali Pathan for Appellant.
Shahzado Saleem Nahiyoon Deputy Prosecutor General,Sindh for the State.
2018 Y L R 2143
[Sindh]
Before Muhammad Junaid Ghaffar, J
Messrs LAND MARK ASSOCIATES through partner---Plaintiff
Versus
SINDH INDUSTRIAL TRADING ESTATE LTD. through Chief Executive Officer and another---Respondents
Suit No.247 of 2008, decided on 9th January, 2018.
Civil Procedure Code (V of 1908)---
----S. 120, O.VII, R. 10 & O. XLIX, R.3(1)---Sindh Civil Courts Ordinance (II of 1962), S. 7---Suit for declaration and injunction---Return of plaint---Original civil jurisdiction---City of Karachi---Scope---Suit property was situated at district "Jamshoro" but suit was filed in High Court at "Karachi"---Plea raised by plaintiff was that High Court at "Karachi" had original civil jurisdiction for the entire Province, therefore, it could assume jurisdiction in the matter---Validity---Original jurisdiction in civil suits and proceedings vested in a District Judge without any pecuniary limit, except in Karachi Districts, where jurisdiction in civil suits exceeding Rupees 15 million was exercised by the High Court---Jurisdiction in civil suits, exercised by High Court Karachi was neither original civil jurisdiction nor extraordinary civil jurisdiction as referred to in S. 120 & O. XLIX R. 3(1), C.P.C.---High Court had no territorial jurisdiction in the matter as property was situated outside the territorial jurisdiction of High Court---Provisions of S. 120 & O. XLIX, R. 3(1), C.P.C. did not in any manner curtail or restrict jurisdiction and powers of High Court---Plaint was returned in circumstances.
Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others PLD 2010 Kar. 261; Muhammad Naved Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176; Muhammad Naved Aslam and others v. E.D.O Revenue Jamshoro and others 2016 CLC Note 132; Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through President and 2 others 2012 CLC 507; Samir Oosman and 2 others v. Rex Talkies (Pvt.) Ltd. PLD 1997 Kar. 579; Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. 1988 CLC 59; West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. PLD 1964 (W.P) Kar. 11; Messrs Sh. Muhammad Amin & Co. v. The Provincial Industrial Development Corporation 1991 CLC 684; Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 CLC 110; Fauji Foundation and others v. Yousuf 1985 CLC 2799; Muhammad Waseem Ghori and another v. Altaf Hussain Tunio and others 2016 YLR 157; Mrs. Shamshad Begum and another v. Syed Iftikhar Hussain Jafri and others 2015 YLR 2277; Ghulam Fareed v. Shahid-ud-Din Tughlaq PLD 2008 Kar. 536; Multi Line Associates v Ardeshir Cowasjee 1995 SCMR 362; Rimpa Sunbeam Co-operative Housing Society Ltd. through Managing Director v. Karachi Metropolitan Corporation through Administrator PLD 2006 Kar. 444; Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. PLD 1961 Kar. 565; Haji Razzaq v. Usman and 9 others PLD 1975 Kar. 944; Province of Sindh v. Haji Razzaq 1991 SCMR 920; Mirza Abdul Rahim Baig and another v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388 and Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha and others 2005 MLD 1506 ref.
Khawaja Shamsul Islam for Plaintiff.
Suneel Kumar Talreja, AAG for Defendants.
Muhammad Najeeb Jamali, for Intervener.
2018 Y L R 2184
[Sindh (Hyderabad Bench)]
Before Salahuddin Panhwar, J
IMDAD HUSSAIN alias IMTIAZ and 2 others---Appellants
Versus
The STATE---Respondent
Cr. Jail Appeal No.S-90 of 2014, decided on 21st August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 154---First Information Report---Delay in lodging of FIR---Effect---Mere delay in lodgement of the FIR was not sufficient to believe or disbelieve the contents of the FIR---Question of guilt or innocence would need required standard of evidence---Promptness or delay of lodging FIR, would however, have relevance as a circumstance, which otherwise would not prejudice the liabilities of either sides and that of court to examine that aspect by holding the scale of justice tight.
Muhammad Zubair v. State 2007 SCMR 437 and Mushtaq Hussain and another v. State 2011 SCMR 45 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Delay of about one month in lodging of FIR---Effect---Accused were charged with the offence that while armed with pistols, they had looted gold ornaments, cash of Rs. 50,000 from show case of the shop of complainant and snatched Rs. 11000 and one mobile phone from son of the complainant---Delay of about one month in reporting the matter and victims had no enmity against the accused persons to falsely involve them---Conduct and attitude on the part of complainant party appeared to be quite natural as the complainant detailed everything in straight forward manner while recording the FIR---First Information Report, prima facie, attached the truthfulness to such narration particularly where no benefit / advantage appeared to have been obtained so as to settle any personal score---In absence of any thing adverse against the complainant party or the circumstances showing possibility of any advantage having been taken by the complainant, the delay alone in lodgement of FIR would not be material to disbelieve the prosecution case.
Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and State/ ANF v. Muhammad Arshad 2017 SCMR 283 rel.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art.22---Identification parade---Scope---No provision existed that identification proceedings should be held in cases where a crime was committed by persons unknown to the witness---Identification had by itself no independent value but was of corroborative in nature which too to exclude the possibility of sending up the innocent person---If case was proved otherwise by convincing evidence then mere absence of identification parade or lapses would loose value thereof---Mere identification in identification parade alone would not be sufficient for conviction, being a corroborative piece of evidence---If the witness was consistent on all material particulars and there was nothing in evidence to suggest that he was deposing falsely then non-participation of such a witness at the time of identification parade would become immaterial.
Muhammad Akram v. State 2011 SCMR 877 and Rafaqat Ali and others v. State 2016 SCMR 1766 rel.
(d) Criminal trial---
----Evidence---Corroborative piece of evidence---Scope---If ocular account failed, the corroborative piece of evidence would become immaterial as the same alone could not hold conviction.
Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Accused were charged with the offence that while armed with pistols they had looted gold ornaments, cash of Rs. 50,000 from show case of the shop of complainant and snatched Rs. 11000 and one mobile phone from the son of complainant---Ocular account was furnished by three witnesses including complainant---Record showed that place of incident was the gold smith shop of the complainant and time of incident was 10.45 a.m., hence presence of witnesses (complainant and his two sons) was quite natural---Presence of said witnesses at the relevant time was never a matter of dispute---Complainant narrated the whole story of the case as mentioned in the FIR---Version of complainant was fully supported by eyewitnesses on all material aspects with regard to entrance of accused till lodgement of the FIR---Prima facie, witnesses of ocular account, including the complainant, had categorically supported each other in respect of all material aspects, i.e. manner of happening of incident, date and time of incident, detail of robbed articles---Said witnesses categorically identified the accused persons during the course of trial and also detailed the incident---Witnesses of ocular account deposed that the accused persons had entered into the shop with open faces and remained in the shop for a considerable period while looting the valuable articles---Such straight forward and natural detailing of whole episode itself spoke that same was not only logical but confidence inspiring---Complainant party had no motive or reason to falsely involve the accused persons who were neither residents of the Illaqa of complainant nor the accused persons pleaded any direct enmity against the complainant party---Said witnesses were subjected to lengthy cross-examination by the defence but nothing except minor discrepancies could be sucked---Circumstances established that the judgment of conviction, as recorded by the Trial Court, was well reasoned and proper, hence needed no interference---Appeal was dismissed accordingly.
Abid Ali and 2 others v. The State 2011 SCMR 208 rel.
(f) Qanun-e-Shahadat (10 of 1984)---
----Art.40---Joint recovery---Admissibility---Robbed articles were recovered at the pointation of the accused persons---Such recovery was admissible within meaning of Art. 40 of Qanun-e-Shahadat, 1984.
(g) Criminal trial---
----Eye-witness, statement of---Minor discrepancies---Effect---Evidence of a witness was always to be read as a whole---Minor discrepancies were to be ignored because the same did creep by passage of time or by keeping the witness under lengthy cross-examination.
Ravi Kapur v. State of Rajastan 2013 SCMR 480 and Dilbar Masih v. State 2006 SCMR 1801 rel.
Badal Gahoti and Shahid Baloch for Appellants.
Shahid Ahmed Shaikh, A.P.G. for the State.
Qurban Ali Bhutto for the Complainant.
2018 Y L R 2210
[Sindh]
Before Muhammad Faisal Kamal Alam, J
Major (Rtd.) Sheikh ABDUL NAEEM---Plaintiff
Versus
PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Secretary and another---Defendants
Suit No.622 of 2003, decided on 23rd January, 2018.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Pakistan Defence Officers Housing Authority---Cancellation of allotment of plot---Plaintiff being employee of Pakistan Army was allotted plot but same was cancelled by the Housing Authority on the ground that he had already been allotted another plot---Contention of plaintiff was that said plot was allotted to him as per his service entitlement---Validity---Plaintiff was earlier allotted a plot under his membership---Plaintiff when filled up and submitted application form knowingly suppressed the fact with regard to allotted plot---Plaintiff was not entitled to more than one residential plot under by-laws of the Housing Authority---Impugned allotment was in violation of by-laws of the Housing Authority---Allotment of suit plot had been obtained through misrepresentation of facts---No person could be allowed to retain ill-gotten gain---Court was not to come to the aid of a person to retain a benefit or privilege to which he was not entitled at the very inception---Plaintiff was afforded chance to appear before the Scrutiny Committee of Housing Authority but he failed to avail that opportunity---Housing Authority had not violated any of the principles of natural justice---Suit was dismissed in circumstances.
Mustafa Lakhani's case 2008 SCMR 611 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 10---Subsequent suit---Maintain-ability---If cause of action in two suits were different from each other for which independent and separate evidence was to be led on different set of facts, then subsequent suit was not barred.
(c) Administration of justice---
----No one could be allowed to retain ill-gotten gain.
(d) Maxim---
----Ignorance of law is no excuse.
Zahid Marghoob for Plaintiff.
Nazar Hussain Dhoon for Defendant No.1.
Defendant No.2 Nemo (Plaint struck off).
2018 Y L R 2236
[Sindh]
Before Mrs. Kausar Sultana Hussain, J
MUHAMMAD NABEEL SHAH and 3 others---Applicants
Versus
The STATE---Respondent
Criminal Bail Application No.1699 of 2017, decided on 2nd April, 2018.
Criminal Procedure Code (V of 1898)---
----S.498---Penal Code (XLV of 1860 ), Ss. 302, 337-J & 34---Qatl-i-amd, hurt by poison, common intention---Pre-arrest bail, confirmation of---Delay in registration of FIR---Effect---Refusal to allow post-mortem of deceased lady by her family--- Deceased lady was second wife of one of the petitioners---Complainant/ father of deceased lady earlier stated that his daughter took poisonous thing/medicine which caused her death but later nominated not only the husband of deceased but his first wife and her family also---Petitioners contended that the deceased remained alive for two days in hospital, but her statement was not recorded and that complainant himself took dead body of his daughter without allowing doctors to conduct her post-mortem---Record revealed that the complainant lodged the FIR after 15 days of the incident---Prosecution witnesses which included sister and brother of the deceased had alleged in their statements recorded under S. 161, Cr.P.C. that the deceased made oral dying declaration before them---Strained relations existed between family of deceased and the family of first wife as both were related inter se, yet the family of deceased kept quiet for considerably long period---Record also showed that the complainant and his family members did not allow the doctors to conduct post-mortem of the deceased, which called for further inquiry into guilt of the petitioners---Ad-interim pre-arrest bail already granted to the petitioners was confirmed in circumstances.
Muhammad Nadeem for Applicants.
Ms. Rahat Ahsan Addl. P.G. Sindh for the State.
2018 Y L R 2246
[Sindh]
Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ
TARIQ---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos. 75, 76 and 77 of 2017, decided on 28th November, 2017.
(a) Criminal trial---
----Heinousness of offence---Effect---Mere heinous nature of alleged offence was not sufficient to convict the accused because the accused was presumed to be innocent until found otherwise at the end of the trial.
(b) Penal Code (XLV of 1860)---
----Ss. 385, 386, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possessing of unlicensed arms---Appreciation of evidence---Benefit of doubt---Charge against the accused was that he demanded money from the complainant, threatening that he would throw grenade on him---Complainant went to Police Station, where Police Officer and complainant put Rs. 10,000 in white envelop as extortion money for giving to the accused and went on the place as pointed out by the accused---At about 12.30 a.m., two persons came on motorcycle and received extortion money from the complainant---Meanwhile, police tried to apprehend accused---On seeing police, accused started firing with their weapons with intention to commit murder upon which police fired in their self defence; resultantly, accused received bullet injury and co-accused escaped---.30-bore pistol without number with loaded magazine two bullets loaded one bullet in chamber, was recovered from the right hand of the accused---Accused was arrested under memo of arrest and recovery in presence of mashirs---Accused with case properties was brought at Police Station, where two separate FIRs were registered against him---Case being that of prior information, record was silent as to why the police did not associate independent person of the locality at the time of alleged recovery---Accomplice of the accused ran away when police party was armed with official arms and ammunition, which was unbelievable---Accused was allegedly armed with pistol, and was arrested without causing any harm to the police, was also unbelievable---Accused in his statement on oath had deposed that he was arrested by police in the night from his house, blind folded him and then fired at his right leg---Said factor had not been considered by the Trial Court---Complainant stated in FIR that he received first Bhatta call through cell phone---Nothing was available on record to show that said cell phone was in the name of accused---Record transpired that accused demanded Rs. one lac as Bhatta from complainant, else he would throw grenade on his shop, but evidence of complainant showed that accused demanded Bhatta of Rs. 50,000/----Complainant was declared hostile, during his evidence, as he had given wrong name of the accused---SIM card of cell phone allegedly recovered from the accused was in the name of some other person, who was not joined in investigation---Number of pistol allegedly recovered from the accused was not mentioned in the mashirnama, but Forensic Science Laboratory report showed the rubbed numbers of the said pistol---Incident had taken place on 11.9.2015, but pistol and empties were received by the incharge Forensic Science Laboratory on 14.9.2015, after the delay of three days for which no explanation had been furnished by the prosecution---Possibility of tampering with the weapon could not be ruled out in circumstances---Safe custody of weapon at police station and safe transit to expert had not been established---Investigating Officer in his evidence had deposed that nothing was recovered from the possession of accused---In view of contradictions, false implication of the accused in the cases could not be ruled out---Circumstances established that there were several infirmities in the prosecution case, which had created reasonable doubt about the guilt of the accused, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
Ali Muhammad Lasi for Appellant.
Ali Haider Saleem, Deputy Prosecutor General for the State.
2018 Y L R 2264
[Sindh]
Before Naimatullah Phulpoto and Zulfiqar Ahmad Khan, JJ
TANVEER alias CHAND---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos.194, 195 and 196 of 2017, decided on 23rd January, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 324, 353 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention, possession of unlicensed weapon, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and his co-accused persons made firing upon the police party with their weapons with intention to kill, which was retaliated---Accused received bullet injury on his right thigh and fell down and was apprehended---One 9-MM pistol with loaded magazine and one hand grenade were recovered from the possession of the accused---Four empties of 9-MM and two empties of SMG were secured from the place of occurrence---Record showed that it was a case of spy information and accused was arrested at a public park but no efforts at all were made by the complainant/police to associate any independent person to witness the arrest and recovery---Complainant did not make any contact with the police station concerned before he and his team boarded towards the place of incident---Provisions of S. 103, Cr.P.C. were not attracted in case of personal search of a person, but in the present case, accused was arrested near a public park---Omission to secure independent mashirs from the locality was significant and could not be brushed aside---Record revealed that there were numbers of infirmities and lacunae in the present case, which had created serious doubts in the prosecution case---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.
Anwar Shamim and another v. The State 2010 SCMR 1791 and Mehboob Alam alias Mandi v. The State SBLR 2017 Sindh 1967 ref.
(b) Criminal trial---
----Benefit of doubt---Principle---Benefit of all favourable circumstances in the prosecution evidence would go to the accused regardless of whether he had taken any such plea or not.
Muhammad Nawaz and another v. The State and others PLD 2005 SC 40 rel.
(c) Criminal trial---
----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
Nadeem Ahmed Azhar for Appellant.
Muhammad Iqbal Awan, DPG and Khalid Hassan, Special Public Prosecutor, Pakistan Rangers (Sindh) for the State.
2018 Y L R 2284
[Sindh]
Before Naimatullah Phulphoto and Shamsuddin Abbasi, JJ
SHEHBAZ AHMED---Appellant
Versus
The STATE---Respondent
Spl. Crl. A.T.A. No.308 of 2016, decided on 16th March, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 385 & 386---Anti Terrorism Act (XXVII of 1997), S. 7---Putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt and act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he, while introduced himself as a member of Gangwar, demanded Bhatta from complainant and extended threats that in case he informed the police or failed to pay extortion amount, he would be killed---Complainant handed over a brown coloured envelope, containing cash to the caller, meanwhile police had arrested him and recovered the envelope, containing cash of Rs.10,000/---Prosecution had examined as many as four witnesses to prove the guilt of the accused---Record showed that neither in the mashirnama of arrest and recovery, the serial numbers of currency notes were mentioned nor any of the prosecution witness deposed so---Investigating Officer had not sealed the recovered property i.e. envelope containing extortion money allegedly recovered from the possession of accused---Police had not sealed the mobile phone SIM allegedly recovered from the possession of the accused---Overwriting about time and date was found in the mashirnama of arrest of accused and recovery of extortion money and SIM---Complainant had suppressed his relationship with prosecution witness---Said prosecution witness had contradicted the contents of mashirnama of arrest of accused and recovery of extortion money and SIM---Police allegedly had recovered extortion money on 3-9-2015, but date mentioned on the envelope containing extortion money was 4-9-2015---Said state of affairs not only made the recovery doubtful, but had demolished the whole case of the prosecution and shattered the entire fabric of the testimony of witnesses---In the present case, the credibility of prosecution witnesses was highly doubtful and untrustworthy---In the present case, the complainant neither had a sound financial status nor earned substantial income---In the absence of any tangible evidence with regard to sound financial position of the complainant, the demand of Bhatta by the accused seemed to be unbelievable---Plea taken by the accused with regard to his false implication, in circumstances, seemed to have sufficient weight---Circumstances established that prosecution had failed to discharge its liability of proving the guilt of the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Sagheer Ahmed v. The State 2016 SCMR 1754 rel.
(b) Criminal trial---
----Benefit of doubt---Principle---If there was element of doubt as to the guilt of accused, benefit of the same would be extended to the accused.
Ayub Masih's csae PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
(c) Criminal trial---
----Burden of proof---Scope---Burden to prove the case rested on the prosecution---Prosecution was duty bound to prove the case against accused beyond shadow of doubt---Said duty did not change or vary in the case in which no defence plea was taken by the accused.
Appellant in person.
Muhammad Iqbal Awan, D.P.G. for the State.
2018 Y L R 2297
[Sindh]
Before Irfan Saadat Khan and Aziz-ur-Rehman, JJ
LAL BUX---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Industries and Production and others---Respondents
Constitution Petition No.D-1776 of 2017, decided on 14th November, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Factual controversy---Petitioner sought direction of High Court against officials alleging misrepresentation, fraud and embezzlement--- Validity--- Fraud/mis-appropriation/embezzlement was to be proved through cogent evidence---Officials denied allegations of petitioner and disputed question of fact required drill of recording of evidence and the same could not be undertaken in a petition filed under Art. 199 of the Constitution---High Court declined to interfere in the matter---Petition was dismissed in circumstances.
Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990; Muhammad Abid and 2 others v. Nisar Ahmed 2000 SCMR 780 and Tayyab Iqbal v. Member (Colonies) Board of Revenue, Punjab Lahore and 3 others 2005 CLC 1447 ref.
Imtiaz Mansoor Solangi for Petitioner.
S. Ali Ahmed Tariq for Respondents Nos. 2, 8 and 9.
Abdul Wasey Khan Kakar, D.A.G. and Meeran Muhammad Shah, Addl. A.G. Sindh for Respondents Nos. 1 and 5.
Nemo for other Respondents.
2018 Y L R 2321
[Sindh]
Before Mrs. Ashraf Jahan, J
BADAL and another---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No.39 of 2014, decided on 23rd January, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 114 & 34---Qatl-i-amd, abettor present when offence was committed, common intention---Delay of about four hours in lodging of FIR---Effect---Incident took place at 11.00 a.m. whereas FIR was lodged by the complainant, who was one of the eye-witnesses of the incident on the same day at 2.00 p.m.---Parties were known to each other and FIR was lodged without any delay, which ruled out any possibility of substitution or consultation to falsely rope the accused persons.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 114 & 34---Qatl-i-amd, abettor present when offence was committed, common intention---Appreciation of evidence---Sentence, modification of---Benefit of doubt---Prosecution case was that the accused made straight fire with T.T. pistol at the nephew of complainant, who received fire arm injuries on his chest at the lower part of his neck and fell down and died at the spot---Co-accused made aerial firing with his Kalashnikov---Ocular account of the occurrence was furnished by four witnesses including complainant---Said witnesses had fully supported the case of prosecution to the extent of firearm injury caused to the deceased by the accused---Evidence of doctor who examined the deceased on the same day and issued post-mortem report was of material value---Medical Officer had opined that the death of the deceased was the result of firearm injury and his evidence regarding cause of death was not challenged during cross-examination---Eye-witnesses had categorically deposed that accused fired at the deceased and there was no contradiction in the evidence brought on record regarding time, place and manner of the incident---Police had secured the empty of the fire from the place of incident, which was sent along with pistol recovered from accused for the forensic examination---Report of Forensic Science Laboratory showed that recovered empty was fired from the recovered pistol---Attending circumstances suggested there was not only direct evidence against accused, but also sufficient corroboratory pieces of evidence connecting the accused with the commission of crime---Circumstances established that prosecution had succeeded to discharge its burden against the accused---Eye-witnesses had deposed that co-accused/father of accused had made aerial firing at the time of incident and also instigated accused to commit murder of the deceased---Prosecution witnesses required circumstantial evidence in support of their allegations, in the shape of recovery of Kalashnikov and empties from the place of incident; case of prosecution was silent in that regard---Admittedly, no empties of Kalashnikov were recovered from the place of incident---Inspite of oral evidence of eye-witnesses against the co-accused, due to non-recovery of empties, prosecution case against him, seemed to be doubtful---Co-accused was arrested on the fourth day of the incident, but there was no recovery of Kalashnikov from him---Circumstances proved that prosecution had failed to prove its case beyond shadow of doubt against co-accused, consequently, the judgment of Trial Court was partially modified and his (accused's) appeal was dismissed---Appeal to the extent of co-accused was accepted and he was acquitted by giving him benefit of doubt.
Muhammad Javed v. The State 2016 SCMR 2021; Shahid Abbas v. Shahbaz and others 2009 SCMR 237; Hakeem and others v. The State 2017 SCMR 1546; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Muhammad Asif v. The State 2017 SCMR 486; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Abdul Karim v. Khaliq Jan and another 2016 PCr.LJ 513 ref.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 114 & 34---Qatl-i-amd, abettor present when offence was committed, common intention---Appreciation of evidence----Testimony of interested/related witness---Scope---Defence had objected that all the witnesses were related to each other---Record showed that witnesses were related to deceased, but their evidence could not be disbelieved merely on account of their relationship with the deceased and complainant, unless they were proved to be on inimical terms with the accused.
(d) Criminal trial---
----Witness---Interested/related witness---Testimony of interested/related witness---Scope---Mere relationship of eye-witnesses with the deceased was not enough to declare such witness to be partisan or interested when his testimony was confidence inspiring and corroborated by circumstantial evidence.
Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.
(e) Criminal trial---
----Confession---Retracted confession---Evidentiary value---Confessional statement though retracted could be made basis for conviction if it was voluntary and supported by corroboratory evidence.
(f) Criminal trial---
----Benefit of doubt---Principle---Single doubt, if found reasonable, would entitle the accused for acquittal.
Hashim Qasim and another v. The State 2017 SCMR 986 and Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 rel.
Muhammad Hanif for Appellant No.1.
Mehmood Alam Rizvi and Zakir Leghari for Appellant No.2.
Jamil Ahmed Shah for the Complainant.
Mst. Rahat Ehsan, Additional P.G. for the State.
2018 Y L R 2337
[Sindh]
Before Muhammad Shafi Siddiqui, J
DEWAN SUGAR MILLS LTD.---Petitioner
Versus
Messrs TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and 2 others---Respondents
C.P. No.S-1862 of 2016, decided on 4th December, 2017.
Civil Procedure Code (V of 1908)---
----Ss. 12(2), 47 & O. XXI, R.2---Executing Court--- Jurisdiction---Adjustment / settlement of decree---Petitioner was tenant and respondent was landlord and dispute between parties was with regard to execution of ejectment decree---Right of petitioner was struck of who firstly filed application under S. 12(2), C.P.C. against such order which was dismissed, thereafter petitioner filed application under S. 47, C.P.C. before Executing Court which also met the same fate---Plea raised by petitioner was that settlement was being arrived at between the parties for payment of arrears of rent and decision / orders passed under S. 12(2), C.P.C. could not be relied upon to oust petitioner from invoking provision of S. 47, C.P.C.---Validity---Executing Court was enabled under S. 47, C.P.C. to determine all questions between parties regarding which decree was passed relating to execution, discharge or satisfaction of a decree and not by a separate suit---Attempt was made to show that there was consensus between parties as to the mode and mechanism of payment of arrears and future rent which was subject matter and 'question arising out of rent case', which could culminate to discharge and satisfaction of decree by accepting postdated cheques but the decree was for eviction and not for payment of arrears of rent---Ousting petitioner from availing their remedy which it could have before Executing Court amounted to a denial of fair trial---Such compromise should have been recognized by Executing Court---Orders passed by Executing Court and Lower Appellate Court were set aside and case was remanded to Executing Court for passing appropriate order on application under S. 47, C.P.C.---"Constitutional" petition was allowed accordingly.
Southern Gas Co. Ltd. and another v. Dr. Abdul Rashid Pirzada and others 2000 CLC 414; Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Fakir Abdullah and others v. Government of Sindh and others PLD 2011 SC 131 and Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163 ref.
Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322; Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366; Muhammad Mukhtar Rana v. Special Tribunal, Punjab, Lahore and another PLD 1977 Lah. 524; Muhammad Akram Khan v. Abrar Ahmed and others 2012 CLC 1621; S.A. Latif v. Nadir Khan PLD 1968 Lah. 144 and Messrs Haji Ahmed and Co v. Muhammad Siddique and others PLD 1965 (W.P.) Kar. 293 distinguished.
Lakshmi Naraynan v. S.S. Pandian AIR 2000 SC 2757; Padmanabha Pillai v. Sankaran Viswambaran AIR 1987 Ker 98; Piralal Das v. Sadhana Kar 84 CWN 322; Behrulal v. Ramautar AIR 1981 MP 181; Smt. Kalloo and others v. Dhakadevi and others AIR 1982 SC 813; Suraj Kala v. Mandir Kalishan JI, Nahan 1994 RRR 304 and Rangaswamy Reddiar and others v. Jaylakshmi Ammal (1974) AIR 2 Mad 167 rel.
Khalid Jawed Khan for Petitioner.
Rafiq Ahmed Kalwar for Respondent No.1.
2018 Y L R 2358
[Sindh]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
ABDUL WAQAR---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.80 of 2016, decided on 20th February, 2018.
Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possessing and trafficking narcotics---Benefit of doubt---All the prosecution witnesses were police officials and no private person was associated without any valid reason to witness recovery proceedings, despite place of incident was a busy place---No efforts were made to persuade any person from the locality to act as witness of incident---Material discrepancies had been noticed in the documents produced by the prosecution at trial and the deposition of the prosecution witnesses in respect of timings---Weight of recovered charas was 2500 grams, but as per report of Chemical Examiner the gross weight of charas was 2554 grams---Prosecution had failed to justify how the weight of charas was increased by 54 grams---Said ambiguity had made the case of prosecution highly doubtful---Prosecution had failed to satisfy on the point of safe custody of property at Police Station and its transit to Chemical Examiner---Prosecution had not examined Head Muharrir and the Police Official who deposited the charas to the office of Chemical Examiner---Prosecution had failed to discharge its liability of proving the guilt of accused beyond shadow of doubt---While extending benefit of doubt, conviction and sentence recorded by the Trial Court against accused by impugned judgment, were set aside---Accused was acquitted of the charge and was ordered to be released forthwith, in circumstances.
Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
Mumtaz Ali Khan Deshmukh for Appellant.
Muhammad Iqbal Awan, D.P.G. for Respondent.
2018 Y L R 2394
[Sindh]
Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ
MUHAMMAD IMRAN AFRIDI---Appellant
Versus
The STATE---Respondent
Spl. Cr.A.T.A. No.219 of 2017, decided on 26th February, 2018.
(a) Explosives Act (IV of 1884)---
----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7(FF)---Possessing hand grenade, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution story appeared to be unbelievable---Prosecution evidence was contradictory on material particulars of the case---Description/number of hand grenade had not been mentioned in the mashirnama of arrest and recovery, but clearance report produced before the Trial Court reflected its number---Prosecution had failed to bring on record evidence with regard to safe custody of the hand grenade at Police Station till its inspection by the Expert---Overwriting was noticed in the Roznamcha Entry for which no plausible explanation had been furnished by the prosecution---Police Officials, no doubt, were as good witnesses as private witnesses, unless the defence proved that they had bias or enmity with accused---Accused had pleaded that he was picked up by the Rangers Force and was handed over to Police and a false case was registered against him---Number of infirmities and material contradictions were found in the prosecution evidence and in such circumstances, it would be unsafe to rely upon the evidence of Police Officials without independent corroboration, which was lacking in the case---Conviction and sentence awarded to accused by the Trial Court were set aside, extending him benefit of doubt.
(b) Criminal trial---
----Benefit of doubt---If a single circumstance would create doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 ref.
Shah Imroz Khan for Appellant.
Muhammad Iqbal Awan, Dy. Prosecutor General for the State.
2018 Y L R 2420
[Sindh (Hyderabad Bench)]
Before Agha Faisal, J
GOVERNMENT OF SINDH through Secretary to Government and another---Applicants
Versus
LAND ACQUISITION OFFICER and 3 others---Respondents
Civil Revision Application No.44 of 2018, decided on 5th March, 2018.
Civil Procedure Code (V of 1908)---
----O. XVIII, R. 18---Land Acquisition Act (I of 1894), Ss. 18, 4 & 54---Reference to court---Inspection of suit property---Interlocutory order---Remedy---Defendants moved application for inspection of acquired land but same was dismissed---Validity---Impugned order had been passed on an interlocutory application---Interference in such order could only be merited in exceptional or extraordinary circumstances---No provision of appeal against the interlocutory orders had been provided within the purview of Land Acquisition Act, 1894---Final order was subject to appeal under the provisions of S.54 of Land Acquisition Act, 1894---Any detriment suffered by the applicants by virtue of impugned order, if any, could be agitated in an appeal against the final order in the proceedings---Interference of Court at such stage in presence of such remedy to the applicants was not merited---No extraordinary or exceptional circumstances had been demonstrated by the applicants to exercise jurisdiction in such regard---Evidence had already been recorded by the Trial Court---Order for inspection of acquired land at present stage would be futile---No illegality or irregularity had been pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.
Mst. Hanifa Bibi v. Munawar Ahmad 2004 SCMR 1521; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others PLD 2004 Kar. 492; Muhammad Juman and another v. Mst. Aqlan and 02 others PLD 1980 Kar. 108 and Muhammad Ismail and others v. Malik Muhammad Shafi and others 1992 CLC 2060 ref.
Khalid Mehmood through Special Attorney v. Judge Family Court, Faisalabad and another 2010 YLR 336 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691 rel.
Allah Bachayo Soomro, Additional A.G for Applicants.
Imran Qureshi, Advocate for Respondents Nos.2 and 3.
2018 Y L R 2441
[Sindh (Hyderabad Bench)]
Before Agha Faisal, J
GOVERNMENT OF SINDH through Secretary---Applicant
Versus
LAND ACQUISITION OFFICER, RBOD-II JAMSHORO/DEPUTY COMMISSIONER JAMSHORO and 3 others---Respondents
R.A. No.47 of 2018, decided on 5th March, 2018.
Land Acquisition Act (I of 1894)---
----Ss. 18 & 54---Civil Procedure Code (V of 1908), Ss. 115 & 151 & O. XIV, R. 5---Acquisition of land---Interlocutory order---Compensation, determination of---Framing of additional issue---Scope---Authorities filed an application before Trial Court for framing of additional issue with regards to market value of land in question but application was dismissed---Validity---Any detriment suffered by authorities by virtue of order in question could be agitated in an appeal against final order in proceedings---In presence of such remedy available to the authorities, interference of court at such stage was not merited---No extraordinary or exceptional circumstances were demonstrated by applicants to compel High Court to exercise its jurisdiction in such regard---Allegations and assertions made by the authorities find no mention in proceedings before Trial Court which had already concluded evidence and was close to concluding the matter---Amendment of issues was declined at the stage when parties had already concluded their evidence before the Trial Court after framing and settlement of amended and consolidated issues---Revision was dis-missed in circumstances.
Muhammad Darwaish Khan v. Bahadar Nawaz Khan and others 1996 MLD 2011; Messrs Aswan Tentage and Canvas Mills Ltd., Lahore v. Messrs M.A. Razzaq and Company 1993 MLD 243; 1995 CLC 729; 1995 CLC 43; 2000 SCMR 1172; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Rehmat Khan v. Iftikhar Ahmad and 8 others 1991 MLD 981; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Khalid Mehmood through Special Attorney v. Judge Family Court, Faisalabad and another 2010 YLR 336 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691 ref.
Allah Bachayo Soomro, Additional A.G. for Applicants.
Imran Qureshi for Respondents Nos. 2 and 3.
2018 Y L R 2512
[Sindh]
Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ
JUMA KHAN---Appellant
Versus
The STATE---Respondent
Spl. Crl. A.T.A. No.292 of 2016, decided on 23rd April, 2018.
Penal Code (XLV of 1860)---
----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.103---Kidnapping for ransom, common intention---Act of terrorism---Appreciation of evidence---No eye-witness of the alleged kidnapping, except complainant, whose testimony required independent corroboration---No eye-witness had been cited for alleged demand of/or payment of ransom amount to accused persons---Accused was neither present nor involved in the abduction/kidnapping of the complainant nor receiving of ransom amount---Ransom as alleged, had been demanded and paid via cellular, but nothing was on record with regard to the cell data record---Absence of said evidence, would create doubt---Alleged hiring of taxi, from taxi stand when normally other taxi drivers and the public would be roaming there, but no private person had been cited as a witness which was violation of mandatory provisions of S.103, Cr.P.C.---Inordinate delay in lodging of FIR, was not plausibly explained---Series of contradictions in the statements of the prosecution witnesses, cast reasonable doubts---Conviction and sentence awarded to accused, were set aside and accused was directed to be released forthwith, in circumstances.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and 1993 SCMR 550 ref.
Farooq Khan and Farah Khan for Appellants.
Rahat Ehsan Additional Prosecutor General for the State.
2018 Y L R 2548
[Sindh]
Before Fahim Ahmed Siddiqui, J
Ms. FARAH TAJ---Petitioner
Versus
The SECRETARY, LOCAL BODIES and others---Respondents
Constitutional Petition No.S-347 of 2012, decided on 19th April, 2017.
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 6(5)(b)---Pakistan Rules under Muslim Family Laws Ordinance, 1961, R.21---Criminal Procedure Code (V of 1898), S.249-A---Quashing of proceedings--Bigamy, trial of---Complaint filed by petitioner against her ex-husband for not seeking her permission to contract second marriage prior to issuance of "Divorce Effective Certificate", was dismissed---Petitioner (wife) sought direction to Secretary Union Council to file complaint against respondent (husband) on the allegation of bigamy---Validity---Petitioner initiated criminal case by filing private complaint herself before concerned Judicial Magistrate---Complaint was not competent according to R. 21 of Pakistan Rules under Muslim Family Laws Ordinance, 1961---Trial Court in exercise of powers under S.249-A, Cr.P.C., acquitted respondent and petitioner did not assail the same, therefore, the same had attained finality---After proceeding was initiated by petitioner against respondent by filing private complaint in which he was acquitted, no other criminal proceeding for the same cause was possible---Only Union Council concerned was competent to file complaint in respect of offence of bigamy/polygamy and petitioner herself had no locus standi regarding the same---Constitutional petition was dismissed in circumstances.
Zakir Hussain Siddiqui v. Mst. Nasim Bano and others 1989 CLC 1062; 1994 SCMR 2098; PLD 1972 Lah. 694; NLR 1980 Lah. 205; PLD 1985 Lah. 319; 1985 MLD 1175; PLD 1988 FSC 42; PLD 1988 Kar. 169; 1992 SCMR 1273 and Atiq-ur-Rehman v. Mst. Sadia and another 2010 MLD 470 ref.
Abdul Hafeez v. Additional District Judge-VII, South Karachi and 2 others PLD 2009 Kar. 350 distinguished.
Muhammad Ashraf Kazi for Petitioner.
Asim Iqbal for Respondent No.3.
Parvez Akhtar, State Counsel.
2018 Y L R 2577
[Sindh]
Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ
MUHAMMAD JAMEEL---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeal No.78 of 2014, decided on 18th September, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 324, 334 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to commit qatl-i-amd, Itlaf-i-udw, common intention, act of terrorism, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosive under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and his co-accused had thrown hand grenade upon Police Post which caused injuries to the Police Officials---Prosecution produced injured Police Officials in order to prove the charges against the accused---Injured witnesses deposed that he had not seen the culprits of the incident---Police Officer, who had claimed to be eye-witness of the case, deposed that on 13.11.2012, he along with Police Official were proceeding to their village and at 1.10 a.m., they found four persons on motorcycles, who had thrown something on the Police Post and there was a bomb blast---Accused persons drove away on their motorcycles---Two Police Officials were injured---Evidence on the same line had been given by the other eye-witness---Alleged eye-witnesses were the chance witnesses as they had not given sufficient explanation for their presence around place of incident during mid night---Both the said witnesses were not eye-witnesses of actual incident---Said witnesses had not disclosed source of identification of the accused at mid night---Said Police Officials/witnesses made no efforts to catch hold of accused persons or they could have fired upon the culprits who had thrown bomb at the Police Post---Nothing was available on record to show that accused persons were previously known to the Police Officials on account of their criminal background---Prosecution evidence appeared to be unnatural and unbelievable---High Court observed that standard of proof should have been far higher as compared to any other criminal case when there was a police case---Such case should have been investigated by some other agency, as police in such case, could not be investigators of their own cause---Investigation lacked independent character therefore, conviction could not be based on such investigation---Record transpired that identification parade of the accused persons was held on 15.3.2013 before Judicial Magistrate---Judicial Magistrate had avoided to reply to the question that he had granted remand of the accused in police custody in another case under the Arms Ordinance prior to holding of the identification parade---Judicial Magistrate also avoided to reply as to whether that face of the accused was muffled when accused was produced before him for remand---Identification parade, in circumstances, was not held according to law, as such reliance could not be placed upon the same---Nothing incriminating was recovered from accused---Circumstances established that no trustworthy evidence had been brought on record to prove the case and there were number of infirmities in the prosecution case, which created doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Zeeshan alias Shani v. The State 2012 SCMR 428 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 324, 334 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to commit qatl-i-amd, Itlaf-i-udw, common intention, act of terrorism, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosive under suspicious circumstances---Appreciation of evidence---Delay in lodging FIR---Effect---Incident had occurred at 1.10 a.m., but it was reported to police station at 3.20 a.m.---Delay in lodging of the FIR would give rise to the inference that the occurrence had not taken place in the manner projected by the prosecution---Time was consumed in making an effort to give a coherent attire to the prosecution case---Said delay was more fatal when the police station was situated at the distance of 7/8 kilometers from the place of occurrence---Such delay would militate against the veracity of the prosecution witnesses when it was not their case that they had no vehicle to reach the police station soon after occurrence.
(c) Criminal trial---
----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
Tahir Raheem for Appellant.
Mohammad Iqbal Awan, D.P.G. for Respondent.
2018 Y L R 2624
[Sindh]
Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ
WALI MUHAMMAD SHAIKH---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary and 2 others---Respondents
Constitutional Petition No.D-1914 of 2015, decided on 19th July, 2018.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117 & 120---Criminal trial---Burden of proof---Scope---Burden of proof is upon prosecution to establish charges against accused by producing evidence.
(b) Penal Code (XLV of 1860)---
----Ss. 409, 419, 420, 468 & 471---Criminal Procedure Code (V of 1898), S. 249-A---Constitution of Pakistan, Arts. 199 & 203---First Information Report, quashing of---Delay in producing of witnesses---Abuse of process of law---Prima facie case---Petitioner was accused of criminal breach of trust, cheating and forgery in a case and was facing trial in which there were 124 prosecution witnesses and evidence of only one witness was recorded in 08 years---Application under S. 249-A, Cr.P.C. for quashing of proceedings was dismissed by Trial Court---Validity---No specific allegations existed which might have directly connected petitioner with alleged offences falling under Ss.409, 419, 420, 468 & 471, P.P.C.---No reference to any specific forged document prepared by petitioner with intent to cause damage or injury to any person was available---No material was in possession of prosecution, which could otherwise suggest that petitioner had dishonestly committed misappropriation or converted public property to his own use or had dishonestly disposed of such property---Prosecution failed to disclose or make out a prima facie case against petitioner as there was no material or evidence available with prosecution which could have connected petitioner with alleged offence---Unexceptional delay had occurred in conclusion of trial which could not be attributed to petitioner, whereas prosecution had not examined a single witness out of 124 prosecution witnesses during last more than 8 years---If proceedings against petitioner were allowed to continue, it would amount to abuse of process of law and would result in deplorable mental and physical torture, besides destroying his service career which could not be permitted---High Court in exercise of inherent jurisdiction set aside order passed by Trial Court and quashed proceedings against petitioner in order to prevent abuse of process of law---Constitutional petition was allowed accordingly.
Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; The State v. Asif Ali Zardari and another 1994 SCMR 798; Safdar Ali v. Ghulam Mustafa 1995 MLD 595; Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 and State of Islamic Republic of Pakistan v. Kenneth Marshal and 2 others 2003 PTD 675 ref.
Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR and 4 others 2015 PTD 349; The State v. Asif Ali Zardari and another 1994 SCMR 798; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Miraj Khan v. Gul Ahmed and 3 others 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.
Khalid Javed Khan for Petitioner.
Salman Talibuddin, Additional Attorney General along with Mumtaz-ul-Hassan, Deputy Director, Ms. Lubna Tiwana, Assistant Director, Inspector Gulsher Mugheri, Inspector Deedar Ali Shaikh, Inspector Abdul Jabbar Mendhro and Inspector Nabil Mehboob of Federal Investigation Agency (FIA) for Respondents.
2018 Y L R 2645
[Sindh (Sukkur Bench)]
Before Omar Sial, J
ALLAH DAD SANGRAH and another---Appellants
Versus
The STATE---Respondent
Criminal Jail Appeal No.S-95 of 2015, decided on 31st July, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Medical evidence---Scope---Complainant had stated that five bullets were inflicted upon the deceased by five persons, one shot to the chest, one shot to the right eye, one shot to the left eye and a shot each on the back---Eye-witnesses corroborated complainant's sequence of injuries---Contrary to the version of complainant and witnesses, the memo of inspection of the dead body showed four injuries on the deceased---Post-mortem report of the deceased showed thirteen fire arm injuries on the deceased and that only two bullets had entry and exit wounds whereas eleven had only entrance wounds---Medical Officer admitted to have recovered only one bullet and one pellet from the body of the deceased and had no explanation as to where the remaining ten bullets went---Pellet found from the body of the deceased was not corroborated by the eye-witnesses as the witnesses had stated that accused had fired from pistols---Medical evidence, in circumstances, did not corroborate the ocular version.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that six persons, (five known to the complainant) including the present accused and one unknown person armed with pistols and shotguns assaulted on the son of the complainant, who died on the spot---Ocular account was furnished by witnesses including the complainant---Eye-witness/ daughter of complainant deposed that at the time of incident, there were five persons, two on one motorcycle and three on another and no sixth person was present at the time or the place of incident---Said circumstances suggested that complainant attempted to throw the net wide just to implicate people in the crime without any evidence against them---Both the eye-witnesses had deposed that witness/daughter of complainant was present at the place of occurrence and she was an eye-witness---Prosecution witness / son of complainant, however contradicted the deposition of his sister by stating that he was informed by someone that deceased had been murdered, and he along with eye-witness/daughter of complainant reached the place of occurrence where the said informer was present with the dead body---Presence of eye-witness (daughter of complainant) on the scene was doubtful in circumstances---Place of occurrence though was a busy road and according to the prosecution, many people had gathered but there was no independent corroboration of the depositions of eye-witnesses---Judicial Magistrate had deposed that he had conducted the identification parade of the accused on the application of Investigating Officer whereas, the Investigating Officer had stated that he had not produced the accused for identification parade---Blood of deceased ostensibly collected from the spot was sent for analysis---Such analysis was of no use as the blood collected did not match witch the blood of the deceased---Circumstances established that prosecution failed to establish its case beyond reason-able doubt, benefit of which would resolve in favour of accused persons---Accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Motive not proved---Effect---Admittedly, there was a longstanding dispute between the parties on murders---Motive, in such a case was a double edged weapon---Accused party could be involved in killing the deceased in view of the said motive---Onus of proof to establish the motive was on the complainant---Prosecution had failed to provide corroboration to its version that the present murder was an outcome of earlier murders of family of complainant committed by the accused---Circumstances established that motive in the present case remained unproved.
(d) Criminal Procedure Code (V of 1898)---
----S. 161---Statement of witness recorded at belated stage---Effect---No reason was given for the delay---Said witness testified that contents of her statement were not read over to her by the police---Statement of complainant was recorded after 11/12 days and no reason was given for the said delay---Complainant had deposed that on the third day of the incident, the police had come and taken her thumb impression on some documents and she had no clue about the said document---Such delay in recording the statements of witnesses without any explanation was fatal to the prosecution case.
Rahat Ali v. The State 2010 SCMR 584 and Syed Muhammad Shah v. State 1993 SCMR 550 rel.
(e) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(g)--- Withholding of best evidence---Presumption---Prosecution did not produce an eye-witness of the incident and no reason was given for the absence---Provision of Art. 129(g) of Qanun-e-Shahadat, 1984 would come into play and it would be presumed that had the said witness been examined, he would have not supported the prosecution case.
(f) Penal Code (XLV of 1860)---
---Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence--- Recovery of weapon of offence--- Reliance---Prosecution case was that accused was arrested with a pistol belonging to the deceased which was said to have been stolen after the deceased was killed---Accused had led the police four days later to his house fromwhere the licence of the pistol in the name of deceased was recovered---No one after having committed murder would preserve the weapon and licence of the deceased in such a situation---Forensic Science Laboratory Report showed that the empties of the pistol recovered from the place of the incident matched with the pistol of the deceased recovered from the accused meaning thereby that the empties of 30-bore pistol collected from the spot were fired by the deceased---Recovery of weapon became suspicious in circumstances.
Muhammad Asif v. The State 2017 SCMR 486 rel.
Ghulam Shabbir Shar and Farooq Ali Jatoi for Appellants.
Zulfiqar Ali Jatoi, A.P.G. for the State.
2018 Y L R 2658
[Sindh]
Before Salahuddin Panhwar and Zulfiqar Ahmed Khan, JJ
Nawab SIRAJ ALI and another---Appellants
Versus
The STATE---Respondent
Special Criminal A.T.A. No.19 of 13, Criminal Revision Application No.40 of 2014, Special Criminal A.T.J.A. No.24 and Special Criminal A.T.A. No.25 of 2013, decided on 28th November, 2017.
Anti-Terrorism Act (XXVII of 1997)---
----Ss. 6, 7 & 25---Criminal Procedure Code (V of 1898), S. 345 (2)---"Act of terrorism"---Appreciation of evidence---Compounding of offence---Personal vendetta---Effect---Plea raised by accused persons was that any act done under personal vendetta was not an "act of terrorism"---Validity---Motive concluded by Trial Court was personal vendetta and essential element of creating terrorism in public was never established nor attempted---Case prima facie fell in the category of cases not liable to be tried by Special Court---As there was personal vendetta, provision of S.6 of Anti-Terrorism Act, 1997, was misapplied by police as well cognizance and trial was not proper---High Court set aside judgment passed by Special Court and remanded the case to Sessions Court for de novo trial and that Court would be competent to decide application for compromise within the four corners of law---Appeal was allowed accordingly.
Waris Ali's case 2017 SCMR 1572 fol.
Mehmood A. Qureshi for Appellant (in Spl. Crl. A.T.A. No.19 of 2013).
Haq Nawaz Talpur and Abbas Rasheed Rizvi for Appellant (in Spl. Crl. A.T.A. No.25 of 2013).
Mehmood Alam Rizvi for Appellant.
Abdul Amir Raza Naqvi and Abdul Razzak for Appellant.
Farooq H. Naik for Applicant (in Criminal Revision Application No.40 of 2014).
2018 Y L R 2671
[Sindh]
Before Aftab Ahmed Gorar, J
ASIF---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.70 of 2016, decided on 23rd November, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 342 & 537---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Accused was charged for the murder of the son of the complainant---Incriminating evidence was not put to the accused---Effect---Record showed that all the material evidence was not put to the accused while recording his statement under S.342, Cr.P.C.---Each and every material piece of evidence, which was being relied by the prosecution against the accused, must be put to him at the time of recording of his statement under S. 342, Cr.P.C. so as to provide him an opportunity of fair trial to explain his position---Attending circumstances of the present case suggested that a fair opportunity was not provided to the accused, which defeated the ends of justice and failure to comply the mandatory requirement of law had vitiated the trial---Such omission on the part of Trial Court was not curable under S. 537 Cr.P.C.---Appeal was partly allowed in circumstances---Case was remanded to the Trial Court for trial afresh from the stage of recording statement of accused under S. 342, Cr.P.C.
Muhammad Nawaz and others v. The State and others 2016 SCMR 267 rel.
Asghar Ali Khan for Appellant.
Seema Zaidi, D.P.G. for the State.
2018 Y L R 2685
[Sindh]
Before Salahuddin Panhwar, J
PETITION BY MST. SULTANA BEGUM FOR LETTERS OF ADMINISTRATION UNDER S.278 OF SUCCESSION ACT, 1925 IN RESPECT OF ASSETS OF DECEASED SHAIKH
ABDUL GHAFFAR: In the matter of
S.M.A. No.14 of 2013, decided on 14th March, 2016.
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 4---Constitution of Pakistan, Art. 203D---Succession---Grandchild to be entitled to inheritance if mother / father of such grandchild had predeceased such grandchild's grandfather/grandmother---Benefit of S.4 of the Muslim Family Laws Ordinance, 1961---Scope---Declaration that S.4 of the Muslim Family Laws Ordinance, 1961 was repugnant to the Injunctions of Islam by Federal Shariat Court---Application of S. 203D of the Constitution---Scope---Question before the High Court was whether children of the predeceased daughter/son of a person were entitled to inheritance/succession after death of such person in line with S.4 of the Muslim Family Laws Ordinance, 1961; which section had been declared repugnant to the Injunctions of Islam by the Federal Shariat Court----Held, that whilst it was a fact that S.4 of the Muslim Family Laws Ordinance, 1961 had been declared repugnant to Injunctions of Islam by the Federal Shariat Court, however, Art. 203D of the Constitution would apply to such decision for said order of Federal Shariat Court had been challenged before the Shariat Appellate Bench of the Supreme Court, and thus said judgment would become operative only after disposal of said appeal by the Shariat Appellate Bench of the Supreme Court and therefore, till such time, those entitled for benefit of S. 4 of the Muslim Family Laws Ordinance, 1961 shall continue enjoying fruit thereof, which entitled grandchild for receiving share which their mother/father would have inherited, had she/he been alive.
Ghulam Asghar v. State PLD 2000 FSC 1; Fazeelat Jan v. Sikandar PLD 2003 SC 475 and Jamroz Khan v. Aamir Khan and others 2013 CLC 542 rel.
Ms. Naseema Mangrio for Petitioner.
Gazain Zafar for Respondent.
2018 Y L R 2687
[Sindh]
Before Muhammad Iqbal Mahar and Khadim Hussain M. Shaikh, JJ
MUHAMMAD HAMDANI---Appellant
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos.D-65 and D-66 of 2016, decided on 8th August, 2017.
Sindh Arms Act (V of 2013)---
----S.23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(ff)---Act of terrorism, possessing unlicensed arms, possessing explosives with intend to endanger the life or property---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that one unlicensed .30-bore pistol loaded with five bullets were recovered from the possession of the accused---Ocular account was furnished by police officials/witnesses including complainant---Record showed that there were contradictions and discrepancies in the prosecution witnesses, which could not be ignored and on the basis whereof, no conviction could be recorded---Plea taken by the accused supported by documents appeared to be more plausible---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by Trial Court.
Rafaqat Ali v. The State 1995 PCr.LJ 2364 and Tariq Parvez v. The State 1995 SCMR 1345 rel.
Jawaid Ahmed Chattari for Appellant.
Zafar Ahmed Khan, A.P.G. for the State.
2018 Y L R 1
[Lahore (Rawalpindi Bench)]
Before Mirza Viqas Rauf and Jawad Hassan, JJ
MUHAMMAD HASHIM and others---Petitioners
Versus
The STATE and others---Respondents
W.P. No.2021 in Crl. Appeal No.633-T of 2017, decided on 7th August, 2017.
Criminal Procedure Code (V of 1898)---
----S. 426---Explosive Substances Act (VI of 1908), S. 5---Anti-Terrorism Act (XXVII of 1997), S.7---Suspension of sentence---Terrorist act---Proof---Accused persons were arrested for possessing 270 grams of explosive substance, three feet safety fuse wire, match box and three detonators---Trial Court convicted accused persons---Validity---Total sentence of accused persons was one year and they had already served out sentence for period of nine months and nine days while remaining sentence was two months and 21 days and bar contained in S. 426, Cr.P.C. was not attracted---While recording conviction of accused persons, Trial Court had held that prosecution had failed to prove that accused persons belonged to proscribed organization or their act amounted to terrorism as defined in S. 7 of Anti-Terrorism Act, 1997---High Court suspended the sentence of accused persons---Constitutional petition was allowed in circumstances.
Bisharat Ullah Khan for Petitioners.
2018 Y L R 26
[Lahore]
Before Ayesha A. Malik and Jawad Hassan, JJ
M. FUWAD A. MUGHAL---Appellant
Versus
FEDERATION OF PAKISTAN and 4 others---Respondents
I.C.A. No.78962 of 2017, decided on 28th September, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Locus standi---Aggrieved party---Competency to file / invoke constitutional jurisdiction of High Court---Scope--- To invoke Constitutional jurisdiction of High Court under Art. 199 of the Constitution, it has to be established that the petitioner's legal or Fundamental Rights guaranteed under the Constitution had been violated and locus standi to seek such direction under denial of legal right, if any, had to be proved---Sine qua non for initiation of proceedings under Art. 199 of the Constitution was that the petitioner should have a locus standi which meant that he/she must be an aggrieved party.
Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6 and Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar. 451 ref.
Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases West Pakistan and others PLD 1957 (W.P) Lah. 914; Kamran Martin v. Mst. Siera Bibi and 4 others 2017 PLC (C.S.) 597 and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 rel.
2018 Y L R 49
[Lahore (Multan Bench)]
Before Abdul Rahman Aurangzeb, J
GHULAM MUSTAFA---Petitioner
Versus
Mian MUHAMMAD NAWAZ and others---Respondents
Civil Revisions Nos.631 to 634 of 2012, decided on 17th May, 2017.
Punjab Pre-emption Act (IX of 1991)---
----S. 13---Civil Procedure Code (V of 1908), O. VI R. 17 & O. VII R. 11---Pre-emption suit---Rejection of plaint---Amendment of pleadings---Scope---Vendees moved application under O. VII, R. 7, C.P.C. for rejection of plaint on the ground that "place" of alleged performance of Talb-e-Muwathibat was not mentioned in the plaint---Pre-emptors moved application for amendment of plaint---Non-mentioning of place of performance of Talb-e-Muwathibat---Effect---Petitioners/vendees contended that mentioning of place of performance of Talb-e-Muwathibat in the plaint was sine qua non and amendment of plaint was equal to rectification of the plaint and Trial Court had rightly rejected the plaint of pre-emptors while appellate court had wrongly allowed pre-emptors to amend their claim--- Pre-emptors/respondents contended that place of performance of Talb-e-Muwathibat was inadvertently missed in the plaint so order of appellate court allowing to amend the plaint was justified---Validity---Mentioning of particulars as to "date", "time" and "place" of making talbs are sine qua non for a successful pre-emptory action, and failure would invariably be fatal for the pre-emptor---Respondents/pre-emptors had accepted their non-performance of the requisite detail of "place" where Talb-e-Muwathibat had been performed and the essential principle of "place" when missing in the plaint, they had to face the consequences for the omission---Trial Court while evaluating the pleadings had considered that in presence of said material defect the cause of action to the pre-emptor had not accrued and in such circumstances the further proceedings in the matter was merely a futile exercise and thus the plaint was rightly rejected---Effect of rectification of the plaint on the basis of proposed amendment of the pleadings had taken the pivotal position in the present case---Amendment in the pleadings was sought by the respondents when the petitioners on the basis of said fatal aspect filed application under O. VII, R. 11, C.P.C., therefore, its insertion in the plaint was clearly visualized that application was filed for filling-up the lacuna and if said amendment was allowed same would be against the spirit of S. 13 of the Punjab Pre-emption Act, 1991---Appellate court allowing the respondents to amend the pleadings to make-up the deficiency/shortcoming in the suit was not sustainable as the same would change nature and complexion of the suit which was originally filed by the respondents, therefore, view rendered by the appellate court was not sustainable---High Court observed that appellate court while allowing the proposed amendment acted in exercise of its jurisdiction with grave illegality and material irregularity on the basis of erroneous and unreasonable view---Exercise of revisional jurisdiction was meant for correction of illegal orders, in circumstances, no other option was left with the High Court except to allow the revision---Impugned judgment and decree passed by appellate court was set aside while judgment and decree passed by Trial Court was upheld---Revision was allowed accordingly.
Mian Pir Muhammad v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Mst. Imtiaz Begum and others v. Mst. Sultan Jan 2008 SCMR 1268; Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others 2013 SCMR 178; Dr. Pir Muhammad Khan v. Khuda Bakhsh and others 2015 SCMR 1243; Muhammad Anwar v. Safeer Ahmed and 5 others 2017 SCMR 404; Karamat Ali Shahzad v. Muhammad Zulqarnain and 4 others PLD 2009 Lah. 356 and Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 ref.
Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824 distinguished.
Mian Saeed Ahmed for Petitioner.
Aamir Altaf Khan Alaizai for Respondents.
2018 Y L R 66
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
Mst. JAMEELA BEGUM---Plaintiff
Versus
QADEER AHMAD---Respondent
C.R. No.999-D of 2006, decided on 6th January, 2017.
(a) Gift---
----Ingredients--- Proof of---Transaction with pardanasheen lady---Procedure---Undue influence---Effect---Contention of plaintiff was that gift mutation was result of fraud and misrepresentation---Suit was dismissed concurrently---Validity---Case of an illiterate lady was to be treated at par to a case of 'pardanasheen' lady---Heavy onus to prove would lie on a transferee/beneficiary of transaction with a 'pardanasheen' lady---Onus after denial of transfer of property by the plaintiff would shift to the defendant to prove the genuineness of gift mutation---Defendant had failed to prove the transaction to be a "gift"---Ingredients of gift i.e. offer, acceptance and delivery of possession had not been proved in the present case---Defendant had not proved the time, date, place and witnesses before whom declaration of gift was made by the plaintiff---Actual consideration for the transfer of property had not been established on record---Claim of defendant that gift mutation had been entered on account of mutual love and affection as consideration had failed---Identity of person appearing for recording of mutation was not established---Identity of parties to the transaction, subject matter of the transaction, nature of transaction and consideration had to be proved to prove the genuineness of a transaction of transfer of property---None of the said ingredients had been proved by the defendant---Defendant could have applied for comparison of thumb impression to prove that plaintiff appeared before the revenue authorities to get mutation entered but it was not done---Defendant had not been able to prove that plaintiff got the gift mutation sanctioned and the entries in roznamcha waqiati had lost significance and could not be used to corroborate the gift that had not been proved otherwise---Property of plaintiff was firstly transferred to her father who was in a position to influence her decision---Defendant had not proved that any independence advice was available to the plaintiff if she had actually transferred the property to her father---Component of undue influence could not be ruled out in circumstances---Transaction in question was doubtful in every aspect and could not be upheld---Impugned mutation was void---Judgments passed by the Courts below were based on mis-reading and non-reading of evidence and erroneous exercise of jurisdiction---Suit property had been fraudulently transferred and suit was within time---Possession of one co-sharer was the possession of all co-sharers---Plaintiff being co-owner should be deemed to be in possession of inherited property---Private witnesses had not been able to prove the gift transaction so evidence of official witnesses would be of no use---Quality of witnesses and not quantity would matter---Erroneous concurrent findings based on mis-reading and non-reading of evidence were no longer sacrosanct---Law protected the right of women to inherit ancestral property---Trial Court had wrongly held that suit of plaintiff was not maintainable---Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed---Revision was allowed in circumstances.
Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Peer Bakhsh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417; Mst. Rasheeda Bibi a nd others v. Mukhtar Ahmad and others 2008 SCMR 1384; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Abdul Aziz v. Mst.Malika and another 1997 SCMR 1599; Sabur Rehman and another v. Govt. of Sindh and 3 others PLD 1996 SC 801; Nazim ud Din and others v. Sh. Zia ul Qamar and others 2016 SCMR 24; Noor Muhammad and others v. Mst.Azmat-e-Bibi 2012 SCMR 1373; Mst.Hussain Bibi and others v. Barkat Ali and others 2004 SCMR 1391 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.
(b) Words and phrases---
---'Cause of action'---Meaning.
Muhammad Asif and another v. Haji Fazal Ahmad and 2 others 2014 CLC 965 and Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354 rel.
Waseem Mumtaz for Petitioner.
Mirza Dilawar Hussain for Respondent.
2018 Y L R 82
[Lahore]
Before Mujahid Mustaqeem Ahmed, J
RIASAT ALI---Petitioner
Versus
MUHAMMAD ANWAR---Respondent
Civil Revision No.1267-D of 2009, heard on 5th May, 2017.
(a) Gift---
----Ingredients---Proof---Contention of plaintiff was that impugned gift mutation was against facts and based on fraud---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff was owner of suit property---No valid ground existed for gifting away entire suit property in favour of his "Chacha Zad" depriving his family---Defendant had not pleaded that due to love and affection plaintiff had gifted away suit property---Defendant had not mentioned the date and place where offer and acceptance of gift was made and in pursuance thereto possession was delivered---Only one witness of gift mutation was produced and other witness had not come forward to support the version of defendant---Defendant had failed to establish the factum of gift by producing two attesting witnesses---Impugned gift mutation was against facts and based on fraud---Findings recorded by the Appellate Court were based on proper appreciation of evidence---Revision was dismissed in circumstances.
Mst. Hajran Bibi and another v. Mst. Maryam Bibi and another 2000 SCMR 1021 and Muhammad Sadiq and others v. Bashir Ahmad and others 2004 SCMR 1734 distinguished.
Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Syed Muhammad Baqir Shah v. Farida Sajid 2013 CLC 52; Allah Ditta v. Manak alias Muhammad Siddique 2017 SCMR 402; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Muhammad Iqbal v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Khaliq Dad Khan v. Mst. Zeenat Khatoon and others 2010 SCMR 1370 and Mst. Raj Bibi and others v. Province of Punjab thorugh Distt. Collector, Okara and 5 others 2001 SCMR 1591 rel.
(b) Civil Procedure Code (V of 1908)---
----S.115---Revision---Conflict in judgments of Trial Court and Appellate Court---Effect---Decision of First Appellate Court was to be preferred in revisional jurisdiction.
Ilamud Din v. Syed Sarfraz 1999 CLC 312 rel.
Walayat Umar Chaudhry for Petitioner.
Qamar Abbas Haidri for Respondent.
2018 Y L R 99
[Lahore (Rawalpindi Bench)]
Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ
MUHAMMAD SOHAIL---Appellant
Versus
The STATE---Respondent
Criminal Appeals Nos.344 and 382 and Murder Reference No.53 of 2013, decided on 9th March, 2017.
(a) Criminal trial---
----Sentence--- Principle--- Conviction involving ultimate penalty cannot be based upon a presumptive or moral satisfaction in absence of positive proof.
(b) Penal Code (XLV of 1860)---
----S.302(b)---Qatl-i-amd---Appreciation of evidence---Solitary witness, evidence of---Scope---Solitary witness can sustain charge of capital sentence provided his testimony rings true and found synchronized with in the ambit of probability.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---Identity of accused---Medical and ocular account---Deceased person had married daughter of principal accused without parental approval---First Information Report was registered against two persons after one and half years---Trial Court convicted both the accused and sentenced principal accused to death while co-accused was sentenced to imprisonment for life---Validity---Invitation by hostile in-laws for a visit that too at an odd hour of night in the month of February sounded preposterous---Obliging promptitude to accept such call without soliciting purpose thereof was no less mind boggling---Family could have postponed the visit to a more convenient point of time under safer environment and with appropriate precautions---Prosecution case from its inception was far from being confidence inspiring---Occurrence was a night time affair in a chilled winter night, question of identity of assailants was another dilemma confronting prosecution---Site plan showed that electric bulb was illuminated in courtyard but none was taken into custody---Draftsman admitted that he himself did not see any bulb and merely mentioned its presence in the site plan on the asking of complainant and prosecution witnesses and except the bulb there was no other source of light---Mute presence of witnesses throughout during the occurrence and alarm thereafter was inconceivable to say the least---Complaint and inquest report were drafted at the spot and in column No. 24 of the inquest report dead body was found lying with head and the same was not in consonance with the narrative furnished by investigating officer, who claimed to have retrieved the head of the victim from a well near another village and deputed a police constable to escort the dead body---As to how the investigating officer reached to the well and who disclosed its location were the issues left to the imagination of court---Inquest report was prepared much later than the time mentioned therein and there was possibility that complaint was recorded subsequent to the point of time mentioned therein after consultation and deliberations---Forensic Science Laboratory report was negative and prosecution case was tumbling on forensic side as well---In a violent crisis situation with witnesses standing next to deceased, removal of head of deceased by co-accused merely to be thrown in a deserted well was without any logical explanation and instead spelled out some different scenario---Admission by Medical Officer in his cross-examination that he conducted autopsy on dead body without head was a position diametrically inconsistent with the statement of investigating officer as well as description given in inquest report---Statement of police constable who escorted the dead body was also out of tune---Evidence presented by prosecution did not fit within the ambit of probability---Occurrence probably did not take place in the manner as alleged in the crime report---Conviction could not be maintained merely on the premise that accused harboured the only possible motive against deceased, for it required evidentiary certainty to hold the charge, and it was unsafe to maintain conviction---High Court extended benefit of doubt to accused persons, set aside conviction and sentences awarded by Trial Court and acquitted them of the charge---Appeal was allowed in circumstances.
Basharat Ullah Khan for Appellant.
Malik Amjad Ali for the Complainant.
Muhammad Usman Mirza, DPG and Qaisar Mushtaq, ADPP with Khalid S.I. for the State.
2018 Y L R 131
[Lahore (Multan Bench)]
Before Muhammad Ali, J
JAVED HAMEED and 7 others---Petitioners
Versus
AMAN ULLAH and 12 others---Respondents
Civil Revision No.133-D of 2017, heard on 3rd May, 2017.
Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Suit for declaration---Closure of evidence---Scope---Final adjournment was granted to the plaintiffs to produce their evidence with a warning that no further opportunity would be given---Request for adjournment on behalf of plaintiffs was opposed by the defendants---Plaintiffs again failed to produce witnesses on the date fixed by the Trial Court---Contumacious conduct of plaintiffs was left with no option but to close their right to produce evidence---Plaintiffs had been cautioned by the Trial Court on six different occasions that it would be the final opportunity to produce evidence---Case was adjourned ten times for recording evidence of plaintiffs---High Court observed that Court should not have granted further adjournments in circumstances---Plaintiffs had made impossible for the Trial Court to make further progress in the suit---Order XVII, R. 3, C.P.C. could be pressed into service even where a party who was granted time to perform some act not only failed to do so but was also absent on the date to which the hearing was adjourned---No illegality or material irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.
Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 and Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others 1983 SCMR 619 rel.
Syed Muhammad Ali Gillani for Petitioners.
Ch. Muhammad Hussain Jahania for Respondents.
2018 Y L R 151
[Lahore]
Before Shahid Hameed Dar, J
GHULAM RASOOL---Petitioner
Versus
The STATE and another---Respondents
Criminal Revision No.1237 of 2010, heard on 15th March, 2017.
(a) Criminal Procedure Code (V of 1898)--
----S. 540---Summoning of witness---Scope---Law empowered the courts to examine anyone as a witness, which in its wisdom, should necessarily be recorded for a just decision of the case.
Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Shahbaz Masih v. The State 2007 SCMR 1631 ref.
The State v. Muhammad Yaqoob 2001 SCMR 308; Jamatraj Kewalfi v. State of Maharashtra AIR 1968 SC 178; Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Ansar Mehmood v. Abdul Khaliq 2011 SCMR 713; Muhammad Murad Abro v. The State through A.G. Baluchistan 2004 SCMR 966; Painda Gull and another v. The State and another 1987 SCMR 886 and Karam Din v. Abdul Aziz PLJ 2004 SC 642 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 409, 419, 420, 467, 468 & 471---Criminal Procedure Code (V of 1898), S. 540---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for purpose of cheating, using as genuine a forged document---Appreciation of evidence---Summoning of material documents and witnesses---Scope---Complainant had alleged that matric-certificate of the petitioner, on the basis of which, he illegally got employment in the Municipal Corporation, was a bogus/tampered with document, which, in fact, was of an in-service Wing Commander---Application by complainant for summoning the inquiry report of the department about matric-certificate of Wing Commander, class fellows of the said Wing Commander and District Registrar, National Database and Registration Authority, along with relevant record, was allowed by the Trial Court---Validity---Record showed that material allowed to be produced and witnesses to be examined, might not wholly/all be relevant and essential for just decision of the case---Inquiry report formulated by the Department would not matter much as Wing Commander had already been examined by the Trial Court---Wing Commander, in his testimony had touched almost every aspect of his education and qualification---Class fellows of the Wing Commander might not be exhilarated the case meaningfully nor their examination looked essential for just decision of the case---Evidence available on the record might not be insufficient by the Trial Court to formulate any definite opinion as to genuineness or otherwise of the matriculation certificate in issue---District Registrar, National Database and Registration Authority, whose statement along with the material hinted at the application, might be of utmost importance so as to unearth the missing link, if any---Revision petition was partly accepted accordingly.
Rana Muhammad Akram for Petitioner.
Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Sh. Adnan Ahmad, ADC/ACE for Respondents.
Azeem Sarwar for the Complainant/Respondent No.2.
2018 Y L R 173
[Lahore (Bahawalpur Bench]
Before Habib Ullah Amir, J
MUHAMMAD ASHRAF and others---Petitioners
Versus
ADDITIONAL DISTRICT JUDGE/APPELLATE AUTHORITY, R. Y. KHAN and others---Respondents
Writ Petition No.9676 of 2016, decided on 21st December, 2016.
Punjab Local Government Act (XVIII of 2013)---
----S. 38---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Election for local government---Election petition---Nomination papers, filing of---Requirements---Contention of petitioner was that candidate did not mention the details of his Bank accounts, thus made concealment of facts---Nomination papers submitted by the candidate were accepted and objection petition was dismissed---Validity---Impugned order passed by the Appellate Authority dealt with each and every objection raised by the petitioner---List of assets had been annexed to the nomination papers---Nothing was on record that accounts mentioned in the objection petition were being operated by the candidate---Candidate was not owner of the alleged property---High Court, could not interfere in an election process, by invoking its constitutional jurisdiction, except where no legal remedy was available to an aggrieved party during the process of election or after its completion against an order of election functionary which was patently illegal/without jurisdiction--- Law favoured liberal interpretation as to facilitate a party to contest election--- Constitutional jurisdiction disfranchising a candidate could not be readily invoked when post-election challenge was available---No illegality or jurisdiction defect had been pointed out in the impugned orders passed by the forum below---Constitutional petition was dismissed in circumstances.
Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge Tehsil Liaqatput, District Rahim Yar Khan and others 2016 SCMR 893 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 rel.
Muhammad Nawazish Ali for Petitioners.
Nadeem Iqbal Chaudhry and S.M. Hussain for Respondents Nos. 3 and 4.
2018 Y L R 185
[Lahore]
Before Shahid Hameed Dar, J
IRFAN and another---Petitioners
Versus
The STATE and another---Respondents
Crl. Misc. No.1911-B of 2017, decided on 11th April, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 392, 397 & 411---Qatl-i-amd, robbery or dacoity with attempt to cause death, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused persons were not named in the FIR but figured in the case as probable offenders at the time of arrest under S. 54, Cr.P.C.---Unknown robbers were seen in the headlight of motorcycle as alleged by complainant and his companions---Statements of eye-witnesses during identification parade virtually changed the tenor of occurrence---Complainant picked up both the accused and stated that they had snatched his motorcycle, cell phone, and wrist watch at the time of occurrence---Nothing was stated by the complainant about robbing and murdering his brother by the said accused persons---One eye-witness had identified the accused persons and stated that they had murdered his brother but did not allege of snatching any property from him during the occurrence; another eye-witness did not say a word about offence of robbery---Said statements when kept in juxtaposition with their previous statements recorded by police, presumably made a different circumstance as against what recorded in FIR or statements under S. 161, Cr.P.C.---Test identification report prepared by Magistrate had made no relevance to the accused persons as serial numbers given in the report at the time of their identification denoted some other prisoners and not the accused persons---Evidence of recovery of motorcycle and Rs. 2000/- cash at the instance of accused and recovery of cell phone of deceased along with carbine at instance of co-accused was to be adjudged in better terms by Trial Court during course of trial--- Investigation officer had not prepared any memo of identification in relation thereto---Accused persons were in jail for six months and were not required by police for further investigation---Sufficient reasons existed to believe that case of accused persons constituted need for further probe into their guilt within scope of S. 497(2), Cr. P. C.---Bail was granted accordingly.
Muhammad Yar Khan Dah for Petitioners.
Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab and Muhammad Akram ASI for the State.
2018 Y L R 196
[Lahore]
Before Abdul Sami Khan, J
SAJID HUSSAIN---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.3380-B of 2017, decided on 5th April, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 496-A & 376---Enticing or taking away or detaining with criminal intent a women, rape---Bail, grant of---Further inquiry---Allegation against the accused was that he abducted the daughter of complainant for illicit intercourse---Alleged abductee had contracted Nikah (marriage) with the accused and copy of Nikahnama (marriage certificate) was attached with bail application---Abductee had given her affidavit in that regard---Nikahnama was verified by the investigating officer from the concerned quarters---Admittedly the alleged victim had not challenged the marriage before any forum which showed that she had been living with the accused as his legally wedded wife---Family court was the proper forum to decide the matter in question---Accused was previous non-convict and never involved in any other case; he was behind the bars for five months---Investigation of case was complete and accused was no more required for further investigation---Further incarceration of accused in jail would not serve any useful purpose---Case of accused was that of further inquiry covered by subsection (2) of S. 497 Cr.P.C.---Bail was granted accordingly.
Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 rel.
Muhammad Aamir Latif Sehr Bhutta for Petitioner.
Muhammad Irfan Zia Deputy Prosecutor General and Ejaz Ahmad ASI with record.
2018 Y L R 207
[Lahore (Multan Bench)]
Before Abdul Sami Khan, J
Rana MUHAMMAD JAVED IQBAL---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.2103-B of 2017, decided on 8th May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 376 & 365-B---Rape, kidnapping abducting or inducing women to compel for marriage etc.---Bail, grant of---Further inquiry---Case of two versions---Although accused was named in FIR, yet there was a delay of four days in registration of FIR---Allegations against the accused was that he along with co-accused abducted niece of complainant and whereafter co-accused committed rape with her---Alleged victim got recorded statement under S. 161, Cr.P.C. in which she had not levelled allegation of rape against accused and categorically stated that accused kept on guarding the premises where she was detained---Alleged victim levelled allegations against accused that he committed rape with her in her statement under S. 164, Cr.P.C. recorded after seventeen days of statement under S. 161, Cr.P.C.---Medico Legal Report of victim revealed no marks of violence on any part of her body---During investigation it had come on record that accused was not found involved in occurrence and his discharge report was prepared but same was disagreed by the Magistrate---Although opinion of police was not binding on court yet same could be taken into consideration while deciding bail application---Keeping in view contents of FIR and outcome of investigation, prima facie case of prosecution to the extent of accused had become a case of two versions i.e. one put forward by complainant and other came on record during investigation and which version was correct would be decided by Trial Court after recording evidence---Accused was previous non-convict and never involved in any other case---Accused was behind the bars for two months without any fruitful progress in trial---Report of Forensic Science Agency regarding swabs was still awaited---Nobody could be kept in jail for indefinite period---Investigation of case was complete and he was no more required for further investigation---No useful purpose would be served by keeping accused behind the bars thus his further incarceration in jail would not serve any beneficial purpose---Bail was granted accordingly.
Ehsan Ullah v. The State 2012 SCMR 1137 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Police report---Scope---Although opinion of police was not binding on the court yet same could be taken into consideration while deciding bail applications.
Rana Muhammad Asif Saeed for Petitioner.
Adnan Latif, DDPP and Noor Muhammad, SI with record for the State.
2018 Y L R 214
[Lahore (Bahawalpur Bench)]
Before Habib Ullah Amir, J
SOHAIL ASGHAR---Petitioner
Versus
The STATE and another---Respondents
Crl. Misc. No.2911-B of 2016/BWP, decided on 4th January, 2017.
Criminal Procedure Code (V of 1898)---
----S. 498---Agricultural Pesticides Ordinance (II of 1971), Ss. 21(1)(2)(b), 22 & 26-A---Adulterated and substandard pesticides---Pre-arrest bail, confirmation of---Accused was holding a valid license to keep and sell the pesticides---No allegation existed against the accused that he tampered with the seals of packs---Accused was required to sell only such stock of pesticides which was duly registered in the manner provided in the statute or the rules framed thereunder---Accused had offered to sell away pesticides which were manufactured by a renowned manufacturing pesticides company---If there was deficient component, it was not the fault of accused---Investigating Officer had not verified from the manufacturing unit whether or not the pesticides recovered from the shop of accused had been prepared by the said manufacturers---Accused was only dealer of pesticides and could not be held responsible and could be treated as a witness---Main liability would lie on the shoulders of manufacturer of the substandard pesticides---Manufacturer of the alleged product had not been arrayed as accused in the present case---Accused had joined investigation and nothing was to be recovered from him---Accused was not charged with the offence covered by prohibitory clause of S.497, Cr.P.C.---No useful purpose would be served in sending the accused behind the bars---Attempt on the part of prosecution to arrest the accused alone by letting off the manufacturer of substandard pesticides was case of mala fide on its part---Accused was entitled to the concession of pre-arrest bail---Pre-arrest bail already granted to the accused was confirmed subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of Trial Court.
Muhammad Tayyab Zameer Khan for Petitioner.
2018 Y L R 234
[Lahore]
Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ
MUHAMMAD SHAFIQUE---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.355-J and Murder Reference No. 323 of 2013, heard on 20th March, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not proved---Effect---Accused was charged for the murder of real sister of the complainant by firearm---Ocular account was furnished by three witnesses including complainant claiming themselves to be the eye-witnesses of the occurrence---Complainant had deposed that he was not present at the time of occurrence---Police allegedly had obtained his signatures on blank paper and chalked out the FIR of their choice---Said witness stated that he came at the spot after the occurrence---Complainant was declared hostile on the request of Public Prosecutor---Remaining eye-witnesses stated that they were present in the house of deceased and saw the occurrence---Admittedly, said witnesses were not residing in the house of deceased---Circumstances suggested that said witnesses were chance witnesses, but had failed to establish their presence at the time and place of occurrence---Complainant had not supported the prosecution case---Co-accused, real brother of the accused had been attributed effective role of fire shot on the person of deceased but he had been acquitted by the trial court by disbelieving the evidence of eye-witnesses---Complainant/State had not filed any appeal against acquittal---Same evidence against the accused could not be believed in absence of any independent corroborative evidence, which was missing in the present case---Circumstances established that prosecution had failed to prove the case against the accused beyond shadow of doubt---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Shahbaz v. The State 2016 SCMR 1763 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence, crime empty and report of Forensic Science Laboratory--- Accused during interrogation, disclosed and got recovered pistol 30-bore---Report of Forensic Science laboratory showed that crime empties were received in the office on 23.11.2010 after the arrest of the accused, while occurrence took place on 20.10.2010; in such circumstances possibility could not be ruled out that the crime empties had been manufactured before its dispatched to the Forensic Science Laboratory---Circumstances established that positive report of Forensic Science Laboratory was not believable and the same was discarded.
Masood Aslam alias Shada v. The State 2002 PCr.LJ 1603 rel.
(c) Criminal trial---
----Benefit of doubt---Scope---Not necessary that there should be many circumstances creating doubt---If there was a circumstance, which created 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 of right.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Ch. Muhammad Imran Fazal Gill, Ch. Riaz Asghar Vayance and Ms. Nighat Saeed Mughal for Appellants.
Ch. Muhammad Zahoor Nasir for the Complainant.
Muhammad Waqas Anwar, D.P.G. for the State.
2018 Y L R 253
[Lahore]
Before Habib Ullah Amir, J
MUHAMMAD RAFIQ---Petitioner
Versus
MUHAMMAD ALI and another---Respondents
C.R. No.459 of 2015, heard on 14th April, 2017.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 17 & 79---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Document---Proof of---Procedure---Death of a witness---Scribe of an agreement to sell---Evidentiary value---Contention of defendant was that two marginal witnesses of agreement to sell were not produced---Suit was decreed concurrently---Validity---Plaintiff was bound to prove agreement to sell and payment of consideration amount unless same was admitted by the defendant---Agreement to sell was required to be proved by producing two attesting witnesses---When law required an act to be done in a particular manner then it had to be done in that way and not otherwise---Plaintiff by stating that other marginal witness had died could not absolve himself from his duty of proving the agreement to sell by producing secondary evidence---When marginal witness had died then mode of proving the case was to lead secondary evidence like comparison of signatures and thumb impressions with admitted thumb impressions and signatures of the dead witness on other documents---Signatures of dead witness were required to be proved through identification of his signatures by any one of his relatives---Only one marginal witness of agreement to sell had been produced but the other who was alive had been withheld---Plaintiff having withheld the best evidence, could not prove execution of agreement to sell and payment of consideration amount---Scribe of an agreement to sell of immovable property was not a substitute for an attesting witness---Evidence of scribe might have a supportive value but was neither in line with the mandate of law nor did it meet the test of Art.79 of Qanun-e-Shahadat, 1984---Concurrent findings recorded by the courts below being against law, impugned judgments and decrees were set aside and suit was dismissed---Revision was allowed in circumstances.
Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Miran Bukhsh v. Muhammad Ismail and others 2016 YLR 420; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.
(b) Administration of justice---
----When law required an act to be done in a particular manner then it had to be done in that way and not otherwise.
Ch. Saghir Ahmad Khan Dhengal for Petitioner.
Shahid Javed Chughtai for Respondent No.1
Nemo, as no relief has been sought by petitioner against Respondent No.2.
2018 Y L R 273
[Lahore]
Before Mudassir Khalid Abbasi, J
Mst. LALA RUKH BUKHARI---Petitioner
Versus
Syed WAQAR UL HASSAN SHAH BOKHARI and others---Respondents
W.P. No.27820 of 2013, heard on 18th May, 2017.
Muslim Family Laws Ordinance (VIII of 1961)---
----S.7---Rules under Muslim Family Laws Ordinance, 1961, R.3---Divorce through notice of divorce to Arbitration Council---Scope---Plaintiff; claimed past and future maintenance being wife of the defendant---Defendant claimed that he had divorced the plaintiff; plaintiff denied receiving of Talaqnama---Effect---Mode of sending divorce deed---Scope---Effect of divorce sent through Arbitration Council---Scope---Plaintiff contended that as defendant had not sent divorce notice at her residence so divorce was not effected---Defendant contended that divorce notice had been sent at the known address of her brother through Arbitration Council which also issued certificate of effectiveness of divorce---Validity--- Record revealed that defendant had asserted in his written statement that he had divorced the plaintiff and had also produced the divorce deed, receipts of registered AD posted to the plaintiff as well as Administrator (Karachi) Municipal Corporation and letter addressed to the Administrator for issuance of certificate of effectiveness of divorce---Record further revealed that necessary action was taken by Municipal Corporation to send divorce notice to the residence of the divorcee---Stance taken by the plaintiff was that as she was not served with notice of Talaq at her (Lahore) address where she was residing as required under S.7 of Muslim Family Laws Ordinance,1961,Talaq had not become effective---Rules under the Muslim Family Laws Ordinance, 1961, stipulated that where the whereabouts of divorcee with due diligence, were not known to the husband, he might give notice of Talaq to his wife through any adult member of her family---Divorce would become effective in absence of notice to the Chairman Arbitration Council under S.7 of Muslim Family Laws Ordinance, 1961, as applicability and interpretation of S.7 had to be construed in the light of facts of each case---Despite the restrictions contained in Muslim Family Laws Ordinance, 1961, the husband's right of Talaq prevailed as given to him under the Quranic Injunctions---Pronouncement of Talaq and its communication to the plaintiff was an admitted fact, therefore, divorce had become effective---No jurisdictional defect having been noticed, constitutional petition was dismissed accordingly.
Allah Dad v. Mukhtar and another 1992 SCMR 1073; Mst. Zahida Shaheen and another v. The State and another 1994 SCMR 2098; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 and Farah Khan v. Tahir Hamid Khan and another 1998 MLD 85 ref.
Ms. Hina Jillani for Petitioner.
Muhammad Hammad Khan Rai, A.A.G. on Court's call.
2018 Y L R 289
[Lahore]
Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ
NIAMAT ALI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.430-J and Murder Reference No.286 of 2014, heard on 29th September, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Delay of seven hours in lodging FIR---Distance between the police station and the place of occurrence was one kilometer---No reason had been mentioned in the FIR by the complainant for such delay in reporting the crime to the police---Circumstances showed that no sincere effort was made by the complainant to report the matter to the police with due promptitude---Such unexplained delay in lodging FIR was fatal in circumstances.
Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190 and Nazeer Ahmed v. The State 2016 SCMR 1628 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of his wife/daughter of the complainant by inflicting hatchet blows on her head, face and neck who succumbed to the injuries---Ocular account was furnished by father/complainant and brother of the deceased---Said witnesses were chance witnesses because they were neither residents of the place of occurrence nor had any place of business there and had not assigned any plausible reason for going to the house of deceased but simply stated that accused and deceased had developed some dispute---Accused did not cause any harm to the deceased when her father and brother were sleeping but committed the murder in their presence in the morning when they were about to leave---Witnesses had failed to establish the reason for their presence at the place of occurrence at the relevant time---If the said witnesses were present at the spot, why they did not try to rescue the deceased or to catch hold of the accused, who admittedly was not armed with any firearm---Circumstances established that prosecution case was not free from doubt, benefit of which would go in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
(c) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Chance witness---Testimony of chance witness---Reliance---Scope---Testimony of chance witness could not be accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---Testimony of chance witness could be relied upon if convincing explanations appealing to prudent mind for his presence at the crime spot were put forth, when the occurrence took place; otherwise testimony of chance witness would fall within the category of suspect evidence and could not be accepted.
Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Javed v. The State 2016 SCMR 2021 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Motive not proved---Effect---No specific motive had been mentioned in the FIR or disclosed before the Trial Court but it was alleged that accused used to quarrel with his wife over domestic affairs---No independent witness in support of the motive was produced during investigation or brought before the Trial Court---Circumstances established that prosecution failed to prove motive of the occurrence.
(e) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Recovery of weapon of offence and positive Forensic Report---Evidentiary value---Scope---Record showed that occurrence took place on 28.1.2013 and accused was arrested on 11.2.2013---Weapon of offence (hatchet) was recovered on 14.2.2013, which was received in the Forensic Science Agency on 18.2.2013, after about twenty one days of the occurrence---Blood on the hatchet if any would have disintegrated during the said period---Recovery of hatchet and its positive report were inconsequential in circumstances.
Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.
(f) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Prosecution had alleged in the FIR and before the Trial Court that accused gave three hatchet blows to the deceased which landed on her forehead, mouth, and neck---Medical Officer, who conducted postmortem examination of the deadbody of deceased observed nine incised wounds on head, forehead, face, neck, chin and right forearm of the deceased---Circumstances established that the ocular account was not in line with the medical evidence.
(g) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Husband murdered his wife inside the house---Burden of proof---Scope---Onus was on the accused husband to explain as to how and in which circumstances his wife had died unnatural death inside the house---Where, however, the prosecution failed to discharge its initial onus, then the onus could not be shifted to the accused.
Abdul Majeed v. The State 2011 SCMR 941 and Arshad Khan v. The State 2017 SCMR 564 rel.
(h) Criminal trial---
----Benefit of doubt---Scope---Single circumstance, which created doubt regarding the prosecution case, would be sufficient to give benefit of doubt to the accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Muhammad Younas Bhullar and Ms. Nighat Saeed Mughal for Appellants.
Zubair Ahmad Farooq, Addl. Prosecutor General for the State.
Ch. Muhammad Jawad Zafar for the Complainant.
2018 Y L R 313
[Lahore (Multan Bench)]
Before Abdul Rahman Aurangzeb, J
TARIQ SIDDIQUE---Petitioner
Versus
ADDITIONAL RENT CONTROLLER and others---Respondents
Writ Petition No.11336 of 2015, decided on 3rd May, 2017.
Punjab Rented Premises Act (VII of 2009)---
----S. 15---Civil Procedure Code (V of 1908), O. I, R. 10--- Constitution of Pakistan, Art.199---Eviction petition---Application by respondent for impleading as party claiming such right on the basis of agreement to sell of rented premises---Entitlement---Scope---Landlord contended that respondent was not entitled to be impleaded on the basis of agreement to sell as he was neither a necessary nor a proper party regarding ejectment proceedings---Applicant contended that his application for impleadment was rightly accepted and that interlocutory order of Rent Controller could not be challenged under constitutional jurisdiction of High Court, besides said petition of the landlord was hit by principle of laches---Applicant under O. I, R. 10, C.P.C. had filed his claim challenging the validity of ownership of the landlord; he had filed a suit for declaration, with regard to his said claim, which was concurrently dismissed---Scrutiny of contention of the applicant and impugned order whereby he was allowed to be impleaded in the ejectment petition, showed that Rent Controller had wrongly allowed him to be impleaded in the ejectment petition on the basis of an agreement to sell which was already dispelled---Interlocutory order though could be challenged through final appeal, but when the order had left the petitioner with no remedy, and the order affected the right of petitioner, invocation of constitutional jurisdiction was not precluded---Impugned order of the Rent Controller impleading an alien as owner who had no locus standi with the rented premises was not justified---Impeachment of interim order if not allowed at proper stage, same would lead to the wastage of public time and multiply the litigation between the parties---Court could not dismiss lis on the ground of laches if the same defeated the cause of justice and perpetuated injustice---Rent Controller by allowing respondent to be impleaded in the ejectment petition, had violated law and caused grave injustice---Impugned order of the Rent Controller was set aside---Constitutional petition was allowed accordingly.
Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Muhammad Iftikhar Mohamand v. Javed Muhammad and 3 others 1989 SCMR 328; Ashiq Hussain v. Sikandar Shah and 14 others 2011 CLC 373; Robina Yasmeen and others v. Rana Javed Iqbal and others 2011 CLC 1779; Umer Baz Khan through L.Hrs. v. Syed Jehanzeb and others PLD 2013 SC 268 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.
Muhammad Ashraf Tasneem and Khalil-ur-Rehman Mayo for Petitioner.
Nafees Ahmad Ansari for Respondent No.2.
2018 Y L R 323
[Lahore]
Before Ahmad Raza Gilani, J
MUHAMMAD SHAFIQUE---Petitioner
Versus
The STATE and another---Respondents
Cr. Misc. No.5124-B of 2017, decided on 18th May, 2017.
(a) Constitution of Pakistan---
----Art. 10-A--- Fair trial--- Scope---Expression "fair trial" not to be given restricted meaning---"Fair trial" includes all stages starting from registration of case, investigation, inquiry if any directed to be conducted in that case and trial---Accused has indefeasible right of full opportunity to prove his innocence.
[Case-law referred].
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and forgery---Pre-arrest bail, confirmation of---Absence of accused---Effect---Accused was arrested during pendency of pre-arrest bail, in some other case and he was not present before the court---Plea raised by complainant was that due to arrest of accused petition had become infructuous---Validity---Withholding of concession of pre-arrest bail particularly when absence of accused at time of confirmation of his ad-interim bail was not willful and he was represented through counsel, same would not serve ends of justice---Complainant, during investigation, could not produce evidence to prove his claim of advancing huge amount of Rs. 1,81,00,000/- to accused and despite lapse of three years he did not approach civil court for recovery of the amount---Proposed arrest of accused was motivated by illwill and mala fide of complainant and local police---Pre-arrest bail was confirmed in circumstances.
[Case-law referred].
Ch. Abdul Ghaffar for Petitioner.
Muhammad Amjad Rafique, Additional Prosecutor General with Ghulam Qadir, A.S.I.
2018 Y L R 334
[Lahore (Multan Bench)]
Before Habib Ullah Amir, J
JUMA KHAN---Petitioner
Versus
AMEER SULTAN and others---Respondents
Civil Revision No.409 of 2003, decided on 11th January, 2017.
Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 10(4)---Specific Relief Act (I of 1877), S. 8---Allotment of land---Suit for possession of immovable property---Limitation---Plaintiff had not mentioned the date or year when suit land was transferred or its possession was handed over to him by the concerned department---No person could be deemed to be a tenant or to have acquired any title, right or interest in State land in absence of written order of Collector concerned---Nothing was on record as to when the suit land was allotted to the plaintiff---No proof had been produced that plaintiff was put into possession on the suit land and he complied with the formalities which were prerequisite for allotment of land---Plaintiff had no proof of ownership with regard to land in question---Plaintiff had not come to the court within time---Suit was barred by limitation---No illegality or material irregularity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.
Sherri CBE (Citizens for a Better Environment) and another v. Government of Sindh through Secretary, Land Utilization Department Board of Revenue, Karachi and others 2009 YLR 955 rel.
Muhammad Masood Bilal for Petitioner.
Fayyaz Hussain Shah Hashmi for Respondents.
2018 Y L R 356
[Lahore]
Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ
MUHAMMAD IRSHAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.256-J of 2013 and Murder Reference No.379 of 2014, decided on 11th April, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused-appellant was alleged to have slitted the throat of deceased girl with a sharp edged weapon---Allegedly, 10/15 days before the occurrence, mother of accused-appellant solicited the hand of deceased, which proposal was declined and prompted the accused-appellant to commit the crime---Ocular account was furnished by the father/complainant and brother of deceased---Said witnesses reiterated the story narrated in the complaint---All the prosecution witnesses were present in the shop located nearby the entrance of the building and only one of them, who was brother of deceased, noticed entry of accused-appellant---Instead of reacting himself, brother of deceased informed his father, wife and son who followed the accused-appellant after hearing shrieks of the deceased---Brother of deceased who had seen the accused-appellant at the time of his entry was not produced as witness---Attending circumstances showed that it was not feasible for accused to undertake the drastic adventure without first risking his own life with a possibility to confront unforeseeable response from the inmates---"Some sharp edged weapon" was mentioned in the crime report, while the prosecution had relied upon recovery of blood stained razor (Ustra) with broken handle---Complainant could not specify said ordinary instrument of common use in the crime report---In the present case, no attempt was made by the witnesses, four in number, to subdue or intercept the accused-appellant while they had seen him slitting deceased's throat---Version of prosecution that accused-appellant escaped from the scene by scaling over the kitchen and rooftops of the adjoining houses located at lower level without suffering any injury was suspicious---Record showed that dead body of the deceased was received in the mortuary at 3.25 p.m. while postmortem was conducted at 6.30 p.m.---No explanation was available as to why the dead body was not dispatched immediately after arrival of the Investigating Officer at the crime scene and postponed the postmortem examination for three hours after receipt thereof in the mortuary---Law Officer requested the Trial Court to declare the Investigating Officer as hostile with permission of cross-examination which request was granted by the Trial Court---Law Officer with active participation of complainant's counsel, during cross-examination, brought on record through leading questions, all the investigative details in admitted narrative to accused-appellant's detriment, which was violation of law---Circumstances established that prosecution case was fraught with doubts, benefit of which would resolve in favour of accused-appellant---Accused-appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging of FIR---Effect---Occurrence took place at 8.45 a.m.---Police station was located 2-km away from the crime scene---Incident was reported at 2.45 p.m. and reason cited by the complainant for belated recourse to law was sudden grief which precluded him to approach the police in time---Investigating Officer deposed that he received information about the occurrence at 8.45 a.m. and he reached the crime scene at 9.00 a.m.---Said facts contradicted the plea of grief raised by the complainant and established beyond doubt that crime report was outcome of consultation and deliberation.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.150---Qatl-i-amd---Appreciation of evidence---Cross-examination---Scope---Court in its discretion, could permit the prosecution to put questions to his own witness---Power of cross-examination could not be exercised to harness a witness into a desired direction or to rectify investigative blunder or error.
Aamir Raza Bhatti for Appellant.
Tayyab Jafari for the Complainant.
Munir Ahmad Sial, D.P.G. with Sarfraz, A.S.I. for the State.
2018 Y L R 370
[Lahore (Rawalpindi Bench)]
Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ
ABDUL SATTAR and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos.188, 218 and Murder Reference No.30 of 2014, decided on 16th March, 2017.
Penal Code (XLV of 1860)---
----Ss. 302(b), 337-A(ii), 337-F(i) & 34--Qatl-i-amd, shajjah-i-mudihah, damiyah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellants along with co-accused persons armed with deadly weapons made a straight fire hitting deceased persons---One of the accused gave multiple butt blows on the person of wife of one victim---Both the male victims succumbed to the injuries at the spot---Motive for the crime was that the accused-appellant was in occupation of ancestral land in excess of his share and both the deceased asked for their due share---Ocular account was furnished by complainant and injured---Record showed that investigative conclusion did not support the prosecution case set up in crime report as three co-accused had been exonerated during investigation---Co-accused/appellant had been independently convicted and sentenced for a fatal shot to one of the deceased---No weapon of crime was recovered as he was exonerated during investigation---Hypothesis of his innocence could not be brushed aside, as it was otherwise inconceivable that a father would let his son to join him in a pursuit with horrendous consequences when he himself could have accomplished the task---After departure of three out of four accused from the scene, accused-appellant could not be possibly convicted and sentenced without independent corroboration---Recovery of pistol from the accused was inconsequential in view of dispatched subsequent to his arrest---Accused was not assigned any harm to one of the deceased and thus, could not be convicted and sentenced in isolation with his co-accused---Alleged motive was not exclusively focused upon the accused, therefore the same could not be pressed into service as corroboration---Prosecution case was found fraught with doubts against co-accused/appellant, inexorable placed in the identical position, it could not be used against the accused-appellant on the ground that he had factually participated in the occurrence---Circumstances established that there was no independent corroboration against the accused/appellants, which created doubt in the prosecution case, benefit of which would resolve in favour of accused-appellants---Accused-appellants were acquitted by setting aside conviction and sentence recorded by Trial Court.
Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 and Shahbaz v. The State 2016 SCMR 1763 rel.
Raja Ghaneem Aabir Khan for Appellants.
Nemo for the Complainant.
Naveed Ahmad Warraich, DDPP with Mumtaz, S.I. for the State.
2018 Y L R 383
[Lahore]
Before Muhammad Qasim Khan, J
KHALID HABIB---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary and others---Respondents
W.P. No.1822 of 2015, decided on 8th June, 2017.
(a) National Accountability Ordinance (XVIII of 1999)---
----Ss. 15 & 25(b)---Petitioner serving as Member (Technical) Pakistan Telecommunication Corporation Limited, was arrested by National Accountability Bureau and released as he entered into plea bargain under S.25(b) National Accountability Ordinance, 1999---Petitioner was dismissed from back date and disqualified from holding public office---Prosecution contended that although the Pakistan Telecommunication Corporation Limited was made a company subsequently, but the petitioner had served under statutory rules, therefore constitutional petition was not maintainable---Validity---Petitioner was employee of Pakistan Telecommunication Corporation having statutory rules; later on corporation was converted into company but service of the petitioner was to be governed under the statutory rules, therefore, the constitutional petition was competent---Provincial and Federal public servants when proceeded under the Prevention of Corruption Act, 1947 or Federal Investigation Agency Act, 1974 and convicted were not automatically dismissed or removed from service by virtue of their conviction---Departmental authority in such a case, had to proceed separately under the relevant laws and passed an independent order, but the National Accountability Ordinance, 1999, provided different mechanism---Section 25(b) read with S. 15 of the National Accountability Ordinance, 1999, described that when plea bargain was opted by an accused and approved by the court, he at once/immediately/without any further delay ceased to hold public office---Admittedly, the plea bargain was opted by the petitioner on 17.3.2003, therefore, for all practical purposes the petitioner ceased to remain on job---Department took up the matter of the petitioner and purely on the basis of his conviction by the National Accountability Bureau vide order dated 24.3.2005, he was dismissed from service with effect from 17.3.2003, the date of conviction by the National Accountability Bureau---Order dated 24.3.2005 being though for departmental purpose, yet the same in fact was implementation of specific provision of S. 15 of the National Accountability Ordinance, 1999--- Circumstances established that there was no merit in the petition---Constitutional petition was dismissed in circumstances.
Masood Ahmad Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others 2012 SCMR 152 and Muhammad Aslam, Ex-Deputy Director (Audit) District Govt. Lahore Region, Lahore v. Auditor-General of Pakistan, Islamabad 2013 SCMR 1904 rel.
(b) Criminal trial---
----Order of subordinate authority---Binding effect---Scope---Order/act of any subordinate authority was not precedent and had no binding effect on the courts to be followed and for considering any case whether discrimination had been meted out or not.
PRTC v. Mahmood Ahmad 2007 PLC 196 and Chandigarh Administration v. Jagit Singh and another AIR 1995 SC 705 rel.
Hafiz Tariq Naseem for Petitioner.
Sajjad Hussain Mian, Assistant Attorney General.
2018 Y L R 395
[Lahore]
Before Shahid Hameed Dar, J
AQIB JAVED---Petitioner
Versus
The STATE and another---Respondents
Crl. Misc. No.3648-B of 2017, decided on 13th April, 2017.
Criminal Procedure Code (V of 1898)---
---S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused did not cause any specific injury to deceased and what he allegedly did at the crucial hour was that he and his two armed co-accused jointly tortured the deceased and complainant by means of their weapons (sticks)---Complainant did not get himself medically examined and medico legal report of deceased revealed two blunt weapon injuries one on his skull and the other at his back which fell within the mischief of S. 337-L(2), P.P.C.---Deceased was found semi-conscious and disoriented at the time of his medical examination, he was alive for about a week and finally succumbed to the head injury---Head injury was allegedly inflicted by co-accused who was armed with a mohri (big stick)---Number of injuries as mentioned in medico-legal report and necropsy report did not commensurate with the number of accused who allegedly formed a group of three at the relevant time---Accused allegedly injured a lady as well and tore her clothes during the occurrence rendering her semi naked but she did not offer herself for medical examination nor she produced her torn clothes before the police---Delay of nine days in lodging the FIR had not been explained by the complainant expressively though it might be perceived that he remained on the beside of her son when he was hospitalized---Investigating Officer had opined that accused though was present at the spot during the occurrence but did not cause any injury to the deceased or anyone else as he was empty handed---No revenue record was available to substantiate the allegation that he dismantled a pathway with the kassi (instrument to dig) before the alleged occurrence started---No sota/danda (stick) was recovered at the instance of accused during his eleven days physical remand---Accused allegedly got recovered a kassi which was not used in the occurrence as opined by the Investigating Officer; he had been in jail for five months and no more needed by the police for the purpose of any recovery etc.---Continued incarceration of accused might be of little consequence to the prosecution case---Sufficient reasons existed to believe that accused's case called for further probe into his guilt within the scope of S. 497(2), Cr.P.C.---Bail was granted.
Hafiz Khalil Ahmad for Petitioner.
Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State with Shafqat ASI with record.
2018 Y L R 415
[Lahore]
Before Syed Muhammad Kazim Raza Shamsi, J
SHAMIM BIBI---Petitioner
Versus
The STATE---Respondent
Crl. Misc. No.886-M of 2016, decided on 12th October, 2017.
Criminal Procedure Code (V of 1898)---
----S. 561-A---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i), 337-F(v) & 337-L(2)---Shajjah-i-mudihah, damiyah, hashimah, hurt---Appreciation of evidence---Enhancement in payment of Daman---Scope---Prosecution case was that respondents were facing trial before the Judicial Magistrate in the cross version of FIR and they were convicted and awarded sentence of payment of Daman amounting to Rs. 5000/- each payable to the different victims---One of the accused was directed to pay Daman amounting to Rs. 15000---Complainant challenged the said amount of Daman and prayed for enhancement in the sentence by filing revision petition before the first appellate court, which was dismissed---Complainant through the petition under S.561-A, Cr.P.C. prayed for the enhancement in sentence by stating that a lesser amount had been awarded by the court---Validity---Record showed that the respondents had not challenged their conviction before the first appellate court nor before the High Court---Case for enhancement of punishment in circumstances, was not made out---Under S.337-Y, P.P.C., the court was required to determine the amount of Daman keeping in view the expenses incurred on the treatment of the victim, loss or disability caused in the functioning or power of any organ and the compensation for the anguish suffered by the victim---Record revealed that victims had suffered simple injuries so the amount of Rs. 5000/- was fixed by the Trial Court keeping in view the nature of injuries received by the ladies/victims---Injured persons in their statements never asserted that they had suffered any loss or disability in the functioning or power of any of their organs---Victims were required to prove the expenses incurred on their treatment and that they had suffered some anguish, so that the court could determine the amount of Daman---In the absence of such evidence, Trial Court had rightly determined the amount of Daman to be paid to the injured---Petition under S.561-A, Cr.P.C. was dismissed in limine.
2018 Y L R 422
[Lahore]
Before Muhammad Farrukh Irfan Khan and Habib Ullah Amir, JJ
MUHAMMAD WARIS---Petitioner
Versus
ASSISTANT COMMISSIONER and others---Respondents
I.C.A. No.577 of 2017, decided on 23rd May, 2017.
(a) Specific Relief Act (I of 1877)---
----S.12---Suit for declaration---Ownership of land---Agreement to sell does not create any right or title in property.
(b) Punjab Land Revenue Act (XVII of 1967)---
----S.163---Law Reforms Ordinance (XII of 1972), S. 3 (2)---Intra Court Appeal---Maintainability---Mutation, review of---Scope---Appellant claimed ownership over suit land merely on the basis of agreement to sell, whereas mutations in the name of seller of suit property were cancelled---Validity---Executive District Officer (Revenue), Collector or Assistant Collector, under S. 163(1) of Punjab Land Revenue Act, 1967, could seek approval of Board of Revenue before reviewing, modifying or reversing of any order passed by himself or any of his predecessors-in-office---Revenue authority under S. 163(1) of Punjab Land Revenue Act, 1967, could at any time, on his own motion, review any order passed by himself or any of his predecessor-in-office and on so reviewing, modify, reverse or confirm the same---Revenue authority was bound by S.163(a)(i)(ii) of Punjab Land Revenue Act, 1967, to seek approval of Board of Revenue only in the matters where he proceeded to modify, reverse or confirm any order passed by himself or by any of his predecessor-in-office, pursuant to an application filed by any aggrieved person seeking review of any order passed against him---None had availed remedy available under S. 163(2) of Punjab Land Revenue Act, 1967, within the prescribed time of 90 days as provided in S. 163(a)(ii)(b) of Punjab Land Revenue Act, 1967---Appellant failed to point out any excess of jurisdiction or mala fide on the part of authorities while passing order of cancellation of mutations in question---Single Judge of High Court rightly refused to invoke jurisdiction under Art. 199 of the Constitution---Intra-court appeal was dismissed in circumstances.
Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 and Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359 ref.
Ch. Ameer Hussain and Malik Masood Ahmad Awan for Petitioner.
M. Faisal Buttar, A.A.G. and Shah Nawaz for Respondents.
2018 Y L R 438
[Lahore]
Before Jawad Hassan, J
MUHAMMAD MOHSIN SAEED---Petitioner
Versus
RABIA BASHIR and others---Respondents
W.P. No.8672 of 2013, heard on 22nd September, 2017.
Family Courts Act (XXXV of 1964)---
----S.5 & Sched.----Suit for recovery of dowry articles---Grant of gold ornaments among dowry articles---Financial status of respondent (wife) family---Scope---Petitioner/defendant (husband) contended that gold ornaments had wrongly been decreed among dowry articles---Respondent/Plaintiff contended that two Courts below had rightly decreed gold ornaments among dowry articles as said gold ornaments were kept in the Bank locker by her in-laws---Validity---Record revealed that the petitioner himself had deposed during cross-examination that whatsoever gold ornaments he had given to the respondent were in custody of the respondent but he could not produce their receipts of purchase as the receipts were also in the custody of the respondent---Said piece of evidence shattered the whole evidence of other witnesses of the petitioner---While respondent had established through cogent and confidence inspiring evidence that whatsoever jewelry articles she had brought with her as dowry, were obtained by the parents of the petitioner to keep those articles in the Bank locker---Evidence of the respondent also showed that in addition to gold articles all the other dowry articles were yet lying at petitioner's house---Evidence showed that respondent (wife) was a doctor and her father was a retired officer in Grade-21 and her mother was also Lady Health Visitor and also practiced in private clinic who was also the owner of a private school---Perusal of impugned judgments revealed that both the courts below had passed the decrees and judgments after fully appreciating the evidence on record---High Court in its extra-ordinary jurisdiction could neither substitute the findings of facts recorded by family Court, nor it could give its opinion regarding quality or adequacy of the evidence---Appraisal of the evidence was the function of the Family Court, which was vested with exclusive jurisdiction in such regard---No illegality and infirmity having been noticed in the impugned judgments and decrees passed by the two Courts below---Constitutional petition was dismissed accordingly.
Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Perveen Umar and others v. Sardar Hussain and others 2003 YLR 3097; Muhammad Ashiq v. Addl. District Judge Okara 2003 CLC 400; Aqal Zaman v. Mst. Azad Bibi and others 2003 CLC 702 and Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243 ref.
Ch. Muhammad Anwar Bhaur for Petitioner.
Shahzad Saleem Khawaja for Respondents.
2018 Y L R 445
[Lahore (Multan Bench)]
Before Asjad Javaid Ghural, J
KHADIM HUSSAIN---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.83-J of 2015 and Criminal Revision No.188 of 2016, heard on 6th February, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 337-F(i) & 34---Qatl-i-amd, causing damiyah, common intention---Appreciation of evidence---Ocular account was not supported by medical evidence---Benefit of doubt---Prosecution case was that the accused and co-accused duly armed with chura and stick emerged on the spot and assaulted on the complainant party, as a result of which, two persons died and one injured---Motive behind the occurrence was stated to be a quarrel, which had taken place a month earlier between the deceased and accused persons---Ocular account was furnished by the witnesses including complainant and injured---Said witnesses furnished ocular account with regard to the place of occurrence; manner of the occurrence; weapons of offence used during the occurrence; names of the culprits with the specific attribution of giving churi blows to deceased persons and about the injured---Contents of crime report and examination-in-chief of complainant showed that he, along with eye-witnesses and deceased persons had gone to the place of occurrence to see the level of water in the channel---Complainant, during cross-examination stated that neither he himself nor injured and deceased had any piece of land near the water channel---Witness admitted that both the deceased persons had not irrigated their land on the day of occurrence and they only went there to see the level of the water---Witness deposed that the clothes of the accused persons were stained with blood but at the same breath, he deposed that their clothes were not stained with blood---Injured witness narrated a different story to that of complainant and claimed that when he rushed forward to rescue the deceased, the accused gave him churi blow---Medical Officer deposed that injury on the person of injured was on non-vital part of the body in the flashy area as well as bony area, skin deep which could be self-suffered, or with friendly hands---Investigating officer had mentioned that he recorded injury statement of the injured and sent him for Medico Legal examination---Contradictory deposition of a witness could not be believed in circumstances---Record showed that a witness was admittedly resident of 40/45 miles away from the place of occurrence and had no business to be present at the time and place of occurrence where he did not own any piece of land---Conduct of all the eye-witnesses was doubtful---If they were present at the place of occurrence along with both the deceased, they would have tried to save the deceased persons and also tried to get hold of the accused persons when they were not armed with any fire arm weapon---Witnesses stopped the accused persons from repeating the churi blows to both the deceased---Medical Officer observed eight injuries on the person of deceased and four injuries on the person of other deceased but eye-witnesses stated that one deceased received four injuries at the hands of accused and other deceased received one injury at the hands of accused and three injuries at the hands of co-accused with churies---One injury on the person of one deceased was caused by blunt weapon as opined by the Medical Expert---Medical evidence did not support the prosecution case---Circumstances established that prosecution failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 337-F(i) & 34---Qatl-i-amd, causing damiyah, common intention---Appreciation of evidence---Motive as alleged by the complainant in the crime report was an earlier quarrel between deceased and the accused---Complainant, during his cross-examination, admitted that said matter was not reported to the police---No quarrel had taken place during the intervening period---Complainant did not know with certainty the nature of the said quarrel---No independent corroboration to establish the motive was available---Circumstances established that motive part of the case had not been established.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 337-F(i) & 34---Qatl-i-amd, causing damiyah, common intention---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Complainant had deposed during cross-examination that the accused was arrested after 1-3 days of the occurrence and he got recovered churi on the same day---Investigating Officer deposed that he arrested the accused on 12.8.2012, who led to the recovery of churi on 26.8.2012---Said contradiction belied the recovery proceed-ings---No reliance could be placed on the recovery in circumstances.
(d) Criminal trial---
----Administration of justice---If the prosecution failed to prove its case against the accused, accused was to be acquitted even if he/she had taken a plea of having killed the deceased.
Azhar Iqbal v. The State 2013 SCMR 383 rel.
Zafarullah Khan Khakwani for Appellant.
Raja Khalid Asghar for the Complainant.
Adnan Latif, Deputy Prosecutor General for the State.
2018 Y L R 459
[Lahore]
Before Shahid Hameed Dar, J
SHABBIR AHMAD---Petitioner
Versus
The STATE and another---Respondents
Crl. Misc. No.2351-B of 2017, decided on 12th May, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonour of cheque---Bail, grant of---Complainant had alleged that accused issued a cheque of Rs. 1,20,00,000/- to indemnify the claim of complainant, which was bounced due to insufficient funds---Narration of FIR disclosed a meandering story as complainant based his claim about the property-in-issue on an unregistered agreement-deed that he did not take to its logical end; and allegedly struck a deal with accused and the actual owner and this troika agreed to sell the property-in-issue but the money received was to be deposited in the Bank account of complainant---Counsel for the accused has submitted that actual owner belatedly instituted a civil suit about the same land and sought an injunctive order from civil court due to which sale of said land came to a standstill---Counsel for complainant submitted that it was some other property of said actual owner regarding which he had instituted a civil suit---Accused was in jail for nine months---Alleged offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such like offences was a rule and rejection thereof an exception---Bail was granted accordingly.
Muhammad Saeed Ansari for Petitioner.
Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State with Ulfat SI with record.
2018 Y L R 467
[Lahore]
Before Muhammad Anwaarul Haq, J
MUHAMMAD ZAHID---Petitioner
Versus
The STATE and another---Respondents
Crl. Misc. No.61103-B of 2017, decided on 29th November, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii), 337-A(i), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, hurt, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Accused allegedly fired shots with his pump action gun that injured two persons; subsequently one injured died after more than one month of the occurrence---Medico-legal report of deceased reflected only one injury on his person whereas besides accused, co-accused was also alleged to have fired shots that hit the deceased; there was only one injury on the person of deceased which was attributed to both the accused persons---Two injuries on the persons of injured (attributed to accused) had already been declared offences under Ss. 337-F(i) & 337-A(i), P.P.C.---Deceased as well as all the injured witnesses did not assign any specific role to any of the accused and stated that all the accused made firing due to which they became injured---Accused was behind the bars since one year and had no previous criminal record---No progress in trial---Case against accused fell within purview of subsection (2) of S.497, Cr.P.C. and was one of further inquiry into his guilt---Bail was granted accordingly.
Rana Saqib Mumtaz and Ch. Zeeshan Afzaal Hashmi for Petitioner.
Ch. Muhammad Mustafa, Deputy Prosecutor General for the State with Nadeem Khalid S.I.
2018 Y L R 477
[Lahore]
Before Shahid Hameed Dar, J
SHER KHAN---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.396 of 2010, heard on 9th March, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 376, 354, 457 & 511---Rape, assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, attempted to commit offence punishable with imprisonment---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused jumped into the house of complainant with ill-intent and attempted to take away his wife---Wife of complainant raised noise and all the members of the family got up and caught hold of the accused, gave beat to him but he rescued himself and ran away---Ocular account was furnished by witnesses including complainant and his wife---Trial Court acquitted the accused of the charge of attempting to commit rape---Site-plan showed that house of complainant did not have any outer-gate fixed in its four-wall and there were three inlets, one located southwards and two northwards, no wall on its eastern side, which opened in the land of some other person; in such a situation, when entry in the house of the complainant was not obstructed by any gate or door, the allegation that accused jumped over its wall to enter therein was a bald allegation---Mode of occurrence as narrated by the eye-witnesses and the victim-lady gave a preposterous look---All the members of the house slept at the same place and effort by the accused to awake victim-lady for taking her to some other place for rape was an act which could not be believed---FIR showed that inmates had overpowered and tortured the accused, but he managed to escape---Witnesses had changed the stance in their testimonies and deposed that they made attempt to catch him but failed---Said witnesses deposed that accused had attempted to catch the victim-lady so as to forcibly outrage her, but could not do so---Testimonies rendered by the witnesses of ocular account were contradictory inter-se and lacked natural touch of believability---Evidence of said witnesses lacked basic element of credence and they had not turned out to be the truthful witnesses---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 376, 354, 457 & 511---Rape, assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, attempted to commit offence punishable with imprisonment---Appreciation of evidence---Delayed FIR---Occurrence took place at 1.00 a.m. on 10.7.2007 and written application of the complainant bore the date as 10.7.2007, but its receipt by the police was on 16.7.2007---FIR, however, was lodged at 5.30 p.m. on 19.7.2007---Said circumstances suggested that complainant prepared his application on 10.7.2007 but presented the same before the police after seven days for which no explanation was available---Circumstances established that FIR could not be deemed to have been promptly lodged by the complainant and delay caused remained unexplained.
(c) Penal Code (XLV of 1860)---
----Ss. 376, 354, 457 & 511---Rape, assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, attempted to commit offence punishable with imprisonment---Appreciation of evidence---Abscondance of accused---Proof---Record showed that accused remained absconder for more than two years but no report of process server about proclamation was available nor the same was tendered in evidence by the prosecution---Allegation of abscondence of the accused remained unsubstantiated in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 376, 354, 457 & 511---Criminal Procedure Code (V of 1898), S. 342---Rape, assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, attempted to commit offence punishable with imprisonment---Specific plea of accused taken in his statement---Scope---Accused had taken plea that he had been involved in the case as a matter of conspiracy by the complainant, who under the garb of the case intended to grab his land---No evidence was led by the accused in that context, so it remained a fact gone unproved---Failure of accused to prove his plea would not strengthen the prosecution case in any manner---Prosecution could not borrow any element of fortification from the accused's failure in proving his defence plea---Plea of accused was not acceptable in circumstances.
Khadim Hussain Kharal for Appellant.
Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State.
Khadim Hussain for the Complainant.
2018 Y L R 487
[Lahore]
Before Atir Mahmood, J
Raja MUHAMMAD AMIR KHAN and another---Petitioners
Versus
Raja SHER AFZAL JASMIN MICHAELA KHAN through Special Attorney and 4 others---Respondents
Civil Revision No.4163 of 2016, heard on 24th October, 2017.
Punjab Partition of Immovable Property Act (IV of 2013)---
----Ss. 6 & 5---Suit for possession through partition---Non-filing of written statement--- Effect--- Judicial record---Scope---Defendants did not file written statement and their right to submit written statement was struck off---Contention of defendants was that only one opportunity to file written statement was given---Validity---Defendant in a partition suit was required to file written statement within thirty days commencing from the date of his first appearance in the Court subject to receipt of notice/summon---Petitioner-defendant appeared on 04-02-2014 whereas other defendant put appearance before the Court on 25-02-2014---Defendants were required to file written statement by 06-03-2014 and 27-03-2014 respectively---Petitioners did not file written statement till 25-07-2016 despite direction and warning that no further opportunity would be granted for filing written statement---Provision of S.6 of Punjab Partition of Immovable Property Act, 2013 was mandatory---When timeframe for doing something had been prescribed by law, it should be followed stricto sensu and no time extension should be given unless there was some lawful justification---No plausible reason or justification could be produced by the petitioners for extension of time for filing the written statement---Judicial record having legal sanctity would prevail over the verbal assertions of defendants---Petitioners did not comply with the mandatory provision of law as well as order of the Court and their right to file written statement was rightly closed---Revision was dismissed in circumstances.
Riaz ul Haq and others v. Muhammad Asghar and others 2017 SCMR 1841 rel.
Muhammad Saeed Sheikh for Petitioners.
Dr. Azeem Raja for Respondent No.1.
Syed Waqar Hussain Naqvi for Respondent No.2.
Hammad Hassan Randhawa for Respondent No.3.
2018 Y L R 499
[Lahore]
Before Mujahid Mustaqeem Ahmed, J
MUHAMMAD YOUNAS---Petitioner
Versus
AKBAR ALI---Respondent
Civil Revision No.3370 of 2015, decided on 24th April, 2017.
(a) Punjab Pre-emption Act (IX of 1991)---
----S. 13---Talbs, performance of---Requirements---Notice of Talb-i-Ishhad was prepared on the direction of pre-emptor after perusing the documents by the scribe---Pre-emptor had not conformed/reiterated before the scribe of Talb-i-Ishhad the making of Talb-i-Muwathibat---Notice of Talb-i-Ishhad was not sent through registered acknowledgement due---Postman was not produced in the witness box to prove the service of notice of Talb-i-Ishhad---Possession of suit property was delivered to the vendee on the very day when sale mutation was effected---Plaintiff though was in knowledge of sale from day one but he concocted story of making talbs at belated stage---Witness of notice of Talb-i-Ishhad was unaware of the contents of said notice---Notice of Talb-i-Ishhad was not validly attested, in circumstances---Talb-i-Muwathibat and Talb-i-Ishhad having not been performed in accordance with law, no mis-reading/non-reading of evidence or illegality/irregularity had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.
Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Muhammad Iqbal v. Rasheeda Bibi and others 2016 CLC 111; Manzoor Hussain and another v. Abdur Rasheed Khan 2013 YLR 2488; Mst. Hukam Jana through L.Rs. v. Kabeer Khan 2012 MLD 1555; Muhammad Ramzan and another v. Zahid Pervaiz and 2 others 2014 YLR 453 and Bisharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere with the concurrent findings of courts below unless same were based on mis-reading or non-reading of evidence or glaring illegality/irregularity had been committed by the courts while appreciating the evidence on record.
Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 rel.
Ch. Khalil Ahmad Maan, for Petitioner.
2018 Y L R 550
[Lahore]
Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ
LIAQAT ALI alias LIAQI---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.1095 and Murder Reference No. 257 of 2012, heard on 6th December, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Information of the occurrence, apparently was conveyed to the Police without unnecessary delay, but record suggested otherwise, as feature of the prosecution case cast doubt about the possibility of the FIR not having been registered at the time mentioned therein---Two eye-witnesses came forward with conflicting versions---Incident had occurred during dark hours of the night but neither in the site plan nor in the statements of the witnesses, any reference was made to some electricity bulb or pole---Distance of the deceased and the witnesses inter se was about 50 feet, whereas much more distance was between the witnesses and the assailants---Such distance coupled with the darkness and non-availability of light, gave rise to the possibility of mistaken identification of the assailants---Father of the deceased, who was eye-witness, despite seeing his son in the pool of blood, opted not to accompany him to the hospital---Father of the deceased was not expected to stay behind by leaving his son at the mercy of others---Post mortem examination of the deceased was conducted with a delay of about 17 hours, without any explanation---Such aspect of the case gave rise to a possibility that the occurrence remained un-witnessed and the story incorporated in the crime report was an outcome of guess work and concoction---Co-accused was acquitted by the Trial Court on the same set of evidence, whereas accused was awarded death sentence through a single judgment---Motive part of the prosecution case remained unproved---Prosecution failed to get corroboration for motive---Medical evidence furnished by Doctor, was in conflict with the ocular account narrated by the two eye-witnesses---Contradictory statements of the witnesses, unexplained delay in post-mortem examination and the conflict in medical and ocular evidence, gave rise to reasonable doubt, benefit of which could not be withheld from accused---Conviction and sentence of accused were set aside, while giving him the benefit of doubt---Accused was acquitted of the charge and was ordered to be released forthwith, in circumstances.
Muhammad Ilyas v. Muhammad Abid alias Billa 2017 SCMR 54 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 111 & 112---Facts which need not be proved---Facts of which court must take judicial notice---Facts judicially noticeable need not be proved as provided under Art.111 of the Qanun-e-Shahadat, 1984---Court could take judicial notice of the division of time and the matter of science; for ascertaining any such question, court could seek aid from appropriate reference books or documents---Facts mentioned in Art.112 of the Qanun-e-Shahadat, 1984, being judicially noticeable, need not be proved through some evidence---Provisions of Arts.111 & 112 of Qanun-e-Shahadat, 1984 were exception to the general rules that all relevant facts must be proved either through oral or documentary evidence---Object of enacting of said provisions, apparently was that the court could take judicial notice of a fact which was incontestably within public knowledge and was admitted by other party---Such fact could definitely be rebutted on the basis of some acknowledged substance.
(c) Criminal trial---
----Motive---Prosecution, though was not obliged to prove the motive in each and every case, yet once the motive was set up, then it must be established.
Noor Muhammad v. The State and another 2010 SCMR 97 ref.
(d) Criminal trial---
----Medical evidence---Purpose of bringing on record the medical evidence was primarily to gauge the veracity of the eye-witnesses.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Disbelieving testimony of eye-witnesses---Effect---If the testimony of the eye-witnesses was disbelieved then no other evidence, even of high degree and value, would be sufficient to uphold conviction of an accused in a case of capital punishment.
Mst. Sughra Begum v. Qaiser Pervez and others 2015 SCMR 1142 ref.
Aiyan Tariq Bhutta for Appellant.
Rao Amjad Ali for the Complainant.
Rana Sultan Mehmood, Additional Prosecutor General for the State.
2018 Y L R 580
[Lahore]
Before Qazi Muhammad Amin and Ch. Abdul Aziz, JJ
MUHAMMAD DIN and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeal No.344 and Murder Reference No.171 of 2011, decided on 8th November, 2011.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Benefit of doubt---Autopsy of the dead bodies of two deceased persons with a delay of more than 24 hours---Legitimate inference which court could draw from such delay was to the effect that time was consumed to concoct and fabricate the story and to plant the witnesses in its support---First Information Report, had not been registered at the time mentioned therein---Both parties on account of multiple litigation arising out of civil and criminal cases, were on worst of the terms---Said feature of the case, made the eye-witnesses as inimical towards accused---Testimony of such like witnesses, was required to be corroborated and supported by other circumstances of the case---Statement of prosecution witness under S. 161, Cr.P.C., was recorded after about one month of the registration of FIR without explanation in that regard---Such unexplained delay had made prosecution witness unworthy of any credence and made it equally unsafe to award or to sustain conviction on the basis thereof---Ocular account to the extent of role attributed to the accused was belied by the medical evidence---Occurrence had happened at a place (land) as claimed by accused persons, which place was in the possession of accused party and stance of accused persons regarding orchard on the land was supported by the revenue record---All the three eye-witnesses consistently stated that after the occurrence the assailants made good their escape from the crime scene while resorting to aerial firing---None of them was found to have deposed to the effect that accused persons while leaving the crime scene, left behind their weapons---Recovered weapon, in circumstances, could not be held to belong to the complainant party---Defence version got ample support from the statements of the prosecution witnesses---When the version of accused was supported by the evidence of adversaries, that was the best defence---Both the parties, were found guilty of suppressing of some material facts---Burden to prove its case was heavier on the prosecution than the onus to prove the defence version---Defence was only required to create a reasonable doubt, whereas the prosecution was obliged to prove its case beyond doubt---Prosecution had failed to discharge its burden, whereas accused had successfully brought on record certain circumstances which gave rise to reasonable doubt, the benefit of which could not be withheld---Ocular account furnished by the eye-witnesses suffered from multiple infirmities, rendering same not worthy of any credence so as to award or to uphold the conviction---Court was not left with any other option, but to acquit accused persons from the charge---Conviction and sentence of accused persons, were set aside and they were acquitted.
[Case law referred].
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148, 149, Chap. IV [General Exceptions] [Ss.76 to 106]---Qatl-i-amd; attempt to convict Qatl-i-amd; Rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Case of two versions---Both the parties had come forward with their respective stances which aspect made the case of two versions---Where accused would come forward with a specific defence, and moreso, one of those contemplated in Chap. IV, P.P.C., known as "General Exceptions", the court had to review the entire evidence arising out of prosecution version as well as the defence structured by accused---Two versions were to be appraised in separate compartments, and if from the recital of the prosecution case, accused was found connected with the commission of crime, he was not liable to a guilty verdict solely on the basis thereof---Instead, the court in such an eventuality had to subject the defence version to a scrutiny in order to find out its truth or otherwise---If from the appraisal of defence version, it was unearthed that the version of accused gave rise to a doubt regarding the correctness of the theory of crime advanced by the prosecution, its benefit was to be extended to person facing the trial---Failure to prove defence version, would not call for awarding of conviction---Even on such a situation, the court was still required to go through the prosecution case and if the court came across any feature which went on to establish the existence of some doubt regarding the missing of an essential constituent ingredient of the crime like the case of qatl-i-amd, the requisite intention and knowledge or the lack of motive; its benefit ought to be extended to the accused---Entitlement of accused to the benefit arising out of such workout, was not a matter of grace, but as of right---While appraising the defence version, the court was not to have pick and choose approach but instead either to accept or to reject same in its entirety.
[Case law referred].
(c) Criminal Procedure Code (V of 1898)---
----Ss. 374 & 376---Reference to High Court---Submission of sentences for confirmation---Power of High Court to confirm or annul conviction---High Court, while deciding a reference under S.374, Cr.P.C., had powers to confirm the sentence or to pass any other appropriate sentence or to annul the conviction; or even to order a new trial on the same or on amended charge; even to acquit accused---In order to decide a reference under S.374, Cr.P.C., the personal presence of the convict, was not made mandatory by the legislature---Reference under S.374, Cr.P.C., even in the absence of the convict, was to be decided, keeping in view the merits of the case.
[Case law referred].
Muzaffar Ahmed Mian, Ijaz Qutub, Suleman Haider Hashmi and Azam Nazeer Tarar for Appellants.
Muhammad Saqib Jillani, (appointed at State expense).
Najeeb Faisal Chaudhry (for legal heirs of Munir (deceased) and Riaz Ahmed Tahir for the Complainant.
Muhammad Zubair Khalid Chaudhry, Additional Prosecutor General for the State.
2018 Y L R 599
[Lahore]
Before Sayyed Mazahar Ali Akbar Naqvi and Mujahid Mustaqeem Ahmed, JJ
ZULFIQAR and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos.24-J, 25-J and Murder Reference No.198 of 2012, heard on 13th April, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that on 13.3.2007 at about 8.45 p.m. the accused persons assaulted on brother of complainant, made firing upon him and ran away---Brother of complainant was shifted to hospital in injured condition but died of the injuries in hospital after two days on 15.3.2007---Motive for the occurrence allegedly was that deceased was creating hindrance in the nefarious activities of accused persons---Ocular account was furnished by brother/complainant and cousin of the deceased---Complainant had deposed in the line of version narrated in the FIR, however, he made certain improvements---Complainant, in order to justify his presence at the place of occurrence, claimed that he, along with witness had visited the shop of the deceased---Complainant could not state any specific purpose for visiting deceased at such time of night---Complainant had stated in the FIR that he along with witness had seen the occurrence, however, at trial he claimed that he along with two witnesses had witnessed the occurrence---Complainant did not divulge as to why he could not mention the name of second witness in the FIR---Name of second witness was also not mentioned as eye-witness in the inquest report prepared by the Investigator---Circumstances showed that second witness was introduced as eye-witness at much belated stage---Record transpired that signature of second eye-witness were available on the recovery memo but a careful comparison of his signatures on said document would show that they did not match with his signature on rest of the documents---Said circumstances indicated that presence of second witness was fabricated---Complainant had not claimed in the FIR that the deceased had caught two of the accused or grappled with them but in trial, he improved his version by deposing that after receiving fire shots the deceased in injured condition caught hold of two accused and during grappling shirt of one accused was removed, whereas jacket of the other accused was taken off and that the assailants ran away from the spot in the car even leaving behind slippers by one of them---Said articles were handed over to the Investigating Officer by the complainant---FIR nowhere mentioned that during grappling, certain articles of the accused persons including a pistol had dropped---Complainant did not claim in trial that pistol of any accused was dropped during grappling---Complainant kept the said articles with him for more than twenty three hours and did not mention the same in his statement, which shook credibility of the complainant---None of the witnesses at the time of identification parade, stated about the accused from whom pistol was dropped, the shirt and jacket were removed or who had left the slippers at the spot---Said omission on the part of the witnesses was a strong circumstance to hold that even the recovery of pistol, shirt, jacket and slippers were nothing but a sham attempt to fabricate evidence to strengthen the prosecution case---Complainant had claimed that he remained busy in medication of the injured and could not get the case registered but at the same time, he admitted during his cross-examination that police had arrived at the hospital but he did not try to lodge a crime report---Said indifferent and unusual conduct of the complainant created doubt and dent in his version---Allegedly, four persons from complainant party were present at the spot and assailants were three in number---Complainant had alleged that two of the assailants had been caught hold of by the deceased---Despite that facts, eye-witnesses, who were real brother and cousin of the deceased remained standing as silent spectators and even when occurrence was over, did not report to Rescue No. 1122 or Rescue No.15---Complainant did not describe in the FIR any source of light inspite of the fact that it was a night time occurrence---Complainant, however, had deposed that witnesses had witnessed the occurrence in the light of bulb installed at the shop, which was not secured by the Investigating Officer---Record showed that deceased and the assailants were previously known to each other and even the deceased used to stop them from doing nefarious activities---Deceased remained conscious for many hours in the hospital while in injured condition but he had not disclosed the names of real culprits, meaning thereby, that the injured could not identify the perpetrators of offence---Circumstances established that prosecution case was not free from doubt, benefit of which would go in favour of accused persons as a matter of right and not of grace---Accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Recovery of weapon of offence and positive Forensic Report---Effect---Allegedly, an empty of 30-bore was recovered from the spot along with pistol 30-bore which were handed over to the Investigator by the complainant---Report of Forensic Science Laboratory showed that crime empty matched with the pistol---Both the crime empty and the pistol were sent together to the laboratory for analysis as such, positive report of the laboratory lost its intrinsic value particularly when prosecution could not pin point as to which of the accused was armed with pistol at the scene of occurrence---Another pistol was recovered at the instance of the accused but the same had not matched with the crime empty recovered from the spot, as such said pistol could not be connected with the commission of crime.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Identification parade---Scope---Prosecution had claimed that accused persons were correctly identified by the witnesses with their specific role in identification parade---Record showed that identification parade was not conducted immediately on the arrest of the accused persons---High Court observed that in such state of affairs, it was not believable that the witnesses, who had seen fleeting glimpses of accused persons, would remember their features for such long period, particularly when their features and contours had not been mentioned in the FIR or in their statements recorded under S. 161, Cr.P.C.---Accused persons were kept in police station and that the witnesses had visited the police station during investigation; possibility that police had got accused persons identified by witnesses prior to identification parade could not be ruled out, which created doubt, benefit of which would resolve in favour of accused persons---Accused persons were acquitted by setting aside convictions and sentences recorded by the Trial Court.
Lal Pasand v. The State 1971 SCMR 569; Ghulam Hussain and others v. The State 2005 YLR 405 and Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227 rel.
Shahid Zaheer Syed and Mrs. Nighat Saeed Mughal for Appellants.
Mian Muhammad Awais Mazhar, Deputy Prosecutor General for Respondent.
Muhammad Ayub Tahir Joyia for the Complainant.
2018 Y L R 616
[Lahore (Multan Bench)]
Before Habib Ullah Amir, J
FIDA HUSSAIN---Petitioner
Versus
JUDGE FAMILY COURT, MUZAFFARGARH and 2 others---Respondents
Writ Petition No.8446 of 2014, heard on 22nd February, 2017.
Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for recovery of dower, dowry articles and maintenance allowance---Entries in Nikahnama---Scope---Defendant claimed that Rukhsati had not taken place---Petitioner/husband contended that he had already paid cash and gold ornaments to the plaintiff in lieu of dower and property mentioned in nikahnama was not part of dower rather petitioner paid amount to previous owner of property and had got transferred in the name of plaintiff/wife---Wife contended that Rukhsati took place and she performed her matrimonial obligation so she was entitled for benefits mentioned in Nikahnama in lieu of dower---Validity---Record showed that wife appeared as witness and categorically stated that Rukhsati had taken place and got recorded details of the ceremony , she also produced marriage registration certificate and photograph of the spouses---Plaintiff also produced a witness who concurred the version of the plaintiff, both witnesses were thoroughly cross-examinated, however, they remained consistent---On the contrary, defendant though claimed that Rukhsati did not take place but he failed to produce any evidence on record rather his own witness conceded that neither he had any knowledge of family life of the defendant nor Rukhsati, thus, it was established that after Nikah, Rukhsati had taken place---Brother of the plaintiff appeared and deposed that he along with his mother purchased dowry articles and plaintiff also produced receipts of purchase in documentary evidence, thus, Family Court rightly decreed the dowry articles in favour of plaintiff---Plaintiff had appeared herself as a witness to support her claim---Defendant had not denied that plot was fixed in lieu of dower, however, he had deposed that land/house fixed in lieu of dower had been transferred in favour of plaintiff along with cash and gold ornaments---Record revealed that record keeper was produced as a court witness who deposed that respondent/plaintiff purchased the property in question and that petitioner/ defendant never approached him--- Held, cash, gold ornaments and property as per contents of Nikahnama were fixed in consideration for marriage---No illegality having been noticed in the judgments of the two Courts below, constitutional petition was dismissed accordingly.
Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756; Muhammad Iqbal v. Mst. Zahida and 2 others 2013 MLD 800; Muhammad Islam v. Mst. Rashidah Sultana and 4 others 2013 CLC 698; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 and Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 ref.
Muhammad Ramzan Khalid Joiya for Petitioner.
Abdul Rehman Khan Laskani for Respondents.
2018 Y L R 645
[Lahore]
Before Jawad Hassan, J
SHAGUFTA BIBI and others---Petitioners
Versus
AMANAT ALI and others---Respondents
W.P. No.14014 of 2013, heard on 26th October, 2017.
Family Courts Act (XXXV of 1964)----
----S.5 & Sched.---Limitation Act ( IX of 1908), Art. 120---Suit for recovery of maintenance allowance of minors---Past maintenance allowance---Limitation---Claiming maintenance allowance for iddat period marriage was dissolved amicably--- Scope--- Petitioners/plaintiff's (wife) contended that Family Court had rightly decreed past-maintenance allowance for the period of around a decade since their expulsion from the house of the Respondent/defendant (husband)--- Respondent (husband) contended that maintenance allowance could not be granted for more than 6 years' time---Validity---Admittedly, the petitioners were living apart from the respondent since 2002 and during the said period the respondent had failed to pay a single penny to the petitioners, therefore, the Family Court had rightly held entitled for future maintenance allowance---Family Court had fell into error in determining the past maintenance from the year 2002 the time when the minors remained apart from the father and intervening period from expulsion to the date of institution of suit in the year 2012---Findings of Family Court about past maintenance, in circumstances, was contrary to law----High Court modified the impugned judgment and decree and allowed the petitioners past maintenance allowance of 6 years from the date of their expulsion---Appellate Court had rightly reduced the future maintenance allowance of minors from Rs.5000/- to Rs.3000/- each keeping in view the facts and circumstance of the case---Appellate Court had rightly found that mother of minors was divorced since ten years before and the matter was patched up and in such like situation, it could not be believed that maintenance of iddat period of a divorcee was still unpaid---High Court, in circumstances, modified the impugned judgment and decree passed by the Appellate Court---Constitutional petition was disposed of accordingly.
Mst. Bushra Qasim v. Dr. Abdul Rasheed and others 1993 CLC 2063; Rasheed Ahmed v. Mst. Shamshad Begum and 3 others 2007 CLC 656 and Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457 ref.
Muhammad Aslam Khan Buttar for Petitioners.
Mian Muzaffar Hussain for Respondents.
2018 Y L R 657
[Lahore]
Before Mujahid Mustaqeem Ahmed, J
SAMSON alias MITHOO and 9 others---Petitioners
Versus
NASIM QAZI---Respondent
Civil Revision No.2737 of 2016, heard on 19th April, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 80---Suit for specific performance of agreement to sell---Limitation--- Document--- Proof of---Procedure--- Unilateral agreement---Scope---Trial Court dismissed the suit on the grounds that agreement to sell was not proved and suit was barred by time but Appellate Court decreed the same---Validity---Agreement to sell and general power-of-attorney were executed between the parties---Defendant had not challenged the said documents in favour of plaintiff and admitted their execution, validity and authenticity---Plaintiff while appearing in the witness box had also proved execution of said documents---Marginal witnesses of both the documents had died but their signatures had been identified on the said documents---Valid execution of agreement to sell and payment of sale consideration had been proved---Plaintiff had possession on the suit property and had admitted that a sum of Rs. 17,000/- was due against her---Appellate Court while discussing the claim of plaintiff had ignored the said admission and had decreed the suit without any order for payment of balance sale amount---Appellate Court had rightly observed that plaintiff had affixed her signatures on the back of agreement to sell---Unilateral agreement to sell was also enforceable if proved to be executed---Proprietary rights had been granted to the defendants during pendency of present suit---Plaintiff could come to the Court for enforcement of agreement to sell after grant of proprietary rights---Appellate Court had properly appreciated the evidence and had rightly decreed the suit of plaintiff---Impugned judgment did not suffer for mis-reading and non-reading of evidence except that no order had been passed for payment of balance amount---Suit of plaintiff was decreed conditionally on payment of balance amount to defendants within thirty days failing which the suit should stand dismissed---Revision was partly allowed in circumstances.
Mst. Gulshan Hamid v. Kh. Abdul Rehman 2010 SCMR 334; Talib Hussain v. Muhamad Nawaz 2016 CLC Note 30; Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98 and Allah Dad v. Mehmood Shah 1990 CLC 33 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Conflict in judgments of Trial Court and Appellate Court---Effect---Decision of Appellate Court was to be preferred in revisional jurisdiction.
Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312 rel.
Ch. Riaz Aslam for Petitioners.
Muhammad Siddiq Shahid for Respondent.
2018 Y L R 669
[Lahore]
Before Mudassir Khalid Abbasi, J
MUHAMMAD YOUSAF---Petitioner
Versus
CIVIL JUDGE and others---Respondents
Writ Petition No.21917 of 2015, heard on 10th April, 2017.
Family Courts Act (XXXV of 1964)---
----S.5, Sched. & S.14---Suit for recovery of maintenance allowance of daughter---"Maintenance"--- Connotation--- Plaintiff sought amendment in plaint to add wedding expenditures of the daughter---Amendment in pleadings---Family Court accepted application of plaintiff---Wedding expenditures for daughter---Maintenance allowance, extent of---Jurisdiction of Family Court---Appeal---Scope---Father contended that he was only bound to provide maintenance allowance till marriage of daughter which did not include wedding expenditures of the daughter---Mother's contention was that Family Court had rightly passed the order and that interim order could not be challenged in constitutional jurisdiction of High Court---Validity---Important feature of the present case was as to whether "maintenance" of a daughter included the "marriage expenditures"---Father was bound to maintain a daughter until her marriage and ,in a situation , adult son was to be maintained on the ground of disability---"Maintenance" included food, raiment, and lodging but such definition was neither conclusive nor exhaustive and undoubtedly had wider connotation which was to be given an extended meaning----Marriage of a daughter was not a simple affair and it would be highly unfair to burden the mother alone for such heavy responsibility to bear the expenditures incurred on the marriage of a daughter---Like, the status of Wali had not been conferred either upon father or mother and was left open to the court to determine and give status of Wali to a person to secure welfare of minor, however, giving of such status had direct nexus with the concept of protector---Section 5 read with Sched. of the Family Courts Act, 1964 empowered the Family Court to exercise its jurisdiction with regard to maintenance---Family Court had rightly accepted the application of plaintiff to allow amendment in pleadings with regard to marriage expenses as it would not alter the complexion of the suit---Section 14(3) of Family Courts Act, 1964 provided that no appeal or revision would lie against interim order passed by Family Court which could not be bypassed by bringing under attack such interim order in constitutional jurisdiction of High Court--- Constitutional petition was dismissed accordingly.
Humayun Hussain v. Salam Humayun PLD 2013 SC 557 and Syed Sagheer Ahmad v. Province of Sindh 1996 SCMR 1165 ref.
Ahmad Farooq for Petitioners.
Zafar Iqbal Mangan for Respondents Nos.2 to 5.
2018 Y L R 694
[Lahore]
Before Qazi Muhammad Amin Ahmed and Asjad Javed Ghural, JJ
MUHAMMAD ABBAS---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.76-J and Murder Reference No.36 of 2014, decided on 14th April, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was alleged to have committed murder of two persons including his own son---Record showed that deceased was father of the complainant, related in second degree with widow of other deceased and other deceased was real son of the accused-appellant, therefore, it would be rather hard to entertain any hypothesis of substitution---Eye-witnesses had explained as to what brought them at the crime scene and they had stated the purpose of visit on the day of incident---Convergence of the eye-witnesses at the spot could not be termed as improbable or unnatural---Said witnesses faced cross-examination unscathed and nothing on record to even obliquely impeached their loyalty---No casing was recovered, but in absence of casings for forensic analysis, recovery of gun found in working order was at least consistent with the injuries sustained by both the deceased---Both the killings that involved prolicide were absolutely unprovoked---Circumstances established that prosecution proved its case to the hilt, appeal against conviction was dismissed in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-recovery of casing at the spot---Effect---Once prosecution case was found firmly structured on ocular account with motive inexorably focused upon the accused, reference to absence of casings at the spot was beside the mark.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Inadequacy of the motive or failure of prosecution to prove the motive would not hold water as there existed no traditional/conventional motive between the father and the son in the present case.
Ms. Saiqa Javed for Appellant.
Muhammad Ashraf Kamboh for the Complainant.
Munir Ahmad Sial, DPG with Rasheed ASI for the State.
2018 Y L R 700
[Lahore (Rawalpindi Bench)]
Before Mirza Viqas Rauf and Jawad Hassan, JJ
NEELAM BIBI---Petitioner
Versus
The STATE---Respondent
Criminal Miscellaneous No.1321/B of 2017, decided on 8th August, 2017.
Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c), 25 & 51---Recovery of narcotic substance---Bail, refusal of---Female accused---Police witnesses---Charas weighing 1600 grams was recovered from shoulder bag of accused lady---Validity---Mere non-associating witnesses from public was not sufficient to vitiate search and recovery proceedings---Applicability of S.103, Cr.P.C. had been specifically ousted to recovery proceedings under S.25 of Control of Narcotic Substances Act, 1997---Alleged recovery was witnessed by police officials who fully corroborated the same in terms of their statements recorded under S.161 Cr.P.C.---Only tentative assessment was to be made and deeper appreciation was not warranted/ permissible at bail stage---Sufficient material was available on record to connect accused with alleged crime and provisions of S.51 of Control of Narcotic Substances Act, 1997, were attracted---Accused lady did not deserve any leniency as no such distinction was provided under Control of Narcotic Substances Act, 1997, and being female she could not claim any immunity on the basis of gender---Bail was refused in circumstances.
The State v. Aleem Haider 2015 SCMR 133; Muhammad Noman v. The State 2017 PCr.LJ 335; The State v. Ghulam Mustafa 2016 YLR 1526; Ashique Hussain v. The State 2014 MLD 509; The State v. Zamray Khan 2011 SCMR 1408; The State v. Abdul Ghani 2010 SCMR 61; Ahudha Manliki v. The State PLD 2007 Kar. 110; The State v. Kashif Ali 2007 PCr.LJ 493; The State v. Malik Amir 2005 YLR 1411 and The State v. Danish Ali Dewan and others 1999 YLR 1445 ref.
Miss Kiran Aftab for Petitioner.
2018 Y L R 709
[Lahore]
Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ
NASRULLAH alias NASRU---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.268-J and Murder Reference No.135 of 2014, heard on 18th May, 2017.
(a) Penal Code (XLV of 1860)---
---S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused were alleged to be duly armed with pistol and emerged on the spot and started firing, as a result of which, two persons one male and female died---Motive for the crime was earlier case registered against the accused for making obnoxious calls to the deceased lady---Ocular account of the occurrence had been furnished by witnesses including complainant---Both the eye-witnesses, with one voice, were pointing their accusing finger on the accused---Wounds on the dead lady of the male deceased, as per record were not in line with the descriptive details of the occurrence in FIR---Medical report showed that there were three entry wounds besides two lacerated wounds each measuring 1x1 cm respectively on lateral side of back of left leg as well as front thereof---No details were available on the record for said lacerated wounds---Statement of prosecution witness, maternal uncle of male deceased, hailing from a locality 30/40 kilometers away from the place of occurrence, obliged the complainant in all his pursuits, could not be relied upon---Said witness had no business to share either with the complainant or with the deceased---Record transpired that various positions taken by witnesses, upon contemplation were not found confidence inspiring and were incompatible with the probable and natural order of events, occurred on the fateful day---Circumstances established that prosecution case was fraught with doubts, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence awarded by the Trial Court.
(b) Criminal trial---
----Oral assertions and ocular account---Scope---No matter a narrative was how impressively articulated, supported by promptitude and other investigative details, unless the same rang true and was found inconsonance with probability of events related by the witnesses, could not alone furnish basis to sustain charge.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Pistol was recovered from the possession of the accused---Record showed that casing were not recovered from the crime scene---Recovery of pistol did not advance prosecution case.
Ms. Saiqa Javed for Appellant.
Nemo for the Complainant.
Najeeb Ullah Jatoi, Deputy District Public Prosecutor for the State.
2018 Y L R 716
[Lahore]
Before Abdul Sami Khan, J
MUSHTAQ AHMAD---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No. 29691/B of 2017, decided on 24th August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Allegation against the accused was that he committed murder of complainant's daughter---Statements under S.161, Cr.P.C. of prosecution witnesses were recorded after about one month and thirteen days of the occurrence and the fact that they remained mum for such long period casted serious doubt---Complainant had already tendered his affidavit and recorded his statement that he had nominated accused due to suspicion and he had no objection for acceptance of bail application of the accused---Prosecution witness also filed his affidavit and recorded his statement that he had not seen the occurrence---Prosecution witness had denied the fact that she had filed private complaint with different date, time and story with different set of witnesses---Accused was previous non-convict, and was never involved in any criminal case; he was behind the bars since one year without any progress of trial; investigation qua accused was complete; challan was submitted in Trial Court---Mere heinousness of offence was no ground to withheld post-arrest bail---Bail was granted accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S. 161---Statement of witness---Scope---Delayed statements of prosecution witnesses recorded under S.161, Cr.P.C. had little value.
(c) Criminal Procedure Code (V of 1898)---
----S. 497--- Bail--- Benefit of doubt arising out of prosecution case could be extended to accused even at bail stage.
Azmat Hussain Sidhu for Petitioner.
Muhammad Irfan Zia Deputy Prosecutor General for the State and Abdul Majeed, S.I. with record.
2018 Y L R 720
[Lahore (Multan Bench)]
Before Asjad Javaid Ghural, J
MAZHAR NAWAZ---Appellant
Versus
The STATE and others---Respondents
Criminal Appeal No.704 of 2011, heard on 23rd January, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Accused was charged for the murder of his wife, sister of the complainant by inflicting axe blows on abdomen and different parts of her body---Victim lady succumbed to the injuries on the spot---Motive behind the occurrence was that deceased had inherited a plot and the accused intended to sell and usurp the amount and on refusal, accused committed her murder---Ocular account was furnished by complainant/brother and sister of the deceased---Complainant narrated the same version as alleged in the FIR---Eye-witness/sister of deceased deposed in line with complainant on all material particulars---Said witness resided in the house where occurrence had taken place and her presence at the time and place of occurrence could not be doubted---Eye-witness had corroborated each and every limb of the evidence adduced by complainant against the accused---Accused was real brother of husband of eye-witness and the marriage was still intact---Though both the witnesses were closely related to the deceased but they were not inimical to the accused and could not be termed as interested witnesses, which fact alone could not be taken as a tool to disbelieve their deposition---Said witnesses being closely related to the accused as well as the deceased would not substitute the accused with the real culprits---Nothing was available on record to show previous enmity or some other facts to show that accused was falsely involved in the case---Record showed that accused was nominated in a prompt FIR with specific role of causing injuries on the person of deceased, which excluded all the deliberations, consultations and fabrications to falsely involve the accused in the case---Case was that of a single accused and in such like cases substitution was a real phenomenon---Ocular account furnished by both the witnesses was quite natural, consistent and in line with each other---Both the eye-witnesses stood firm to the test of cross-examination and being present at the place of occurrence, as such their testimony was confidence inspiring and was reliable to maintain conviction against the accused---Appeal against conviction was dismissed in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Motive---Proof---Motive for the occurrence was that deceased, wife of accused had inherited a valuable plot and he intended to sell the plot and usurp the sale proceed---Both the eye-witnesses had deposed that they were informed by their sister/deceased with regard to the said demand of the accused---Deceased resisted and accused committed her murder---No other motive had been brought on record by the Investigating Officer or the accused in his statement recorded under S. 342, Cr.P.C., in rebuttal---Only motive, in field was a dispute over the sale of plot between the spouses which was proved in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Medical Officer, who conducted post mortem examination on the dead body of the deceased stated that eight injuries were noticed on her dead body---Said injuries were incised wounds caused by sharp-edged weapon---Time between injuries and death was mentioned as "immediate" and five hours between death and post mortem, which supported the version of the prosecution---Kind of weapon used by the accused and the duration between the death and post-mortem lent support to ocular account---Appeal against the convictions and sentences was dismissed in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Accused was arrested on 22-7-2010---Recovery of axe, at the instance of accused from a room of his residential house on 11.8.2010---Reliance---Scope---Attending circumstances suggested that there was contradiction in depositions of complainant and Investigating officer---Despite positive report of the office of Chemical Examiner and Serologist, no support could be lent to the recovery made by the Investigating Officer---Recovery being not confidence inspiring could not be relied.
(e) Criminal trial---
----Interested witness---Scope---Testimony of closely related witness---Reliance---Close relationship of the witness with the deceased had no bearing to discard its testimony, if such witness was not inimical or interested to falsely implicate the accused.
Sheraz Tufail v. The State 2007 SCMR 518 and Khair Muhammad and another v. State 2007 SCMR 158 rel.
(f) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Mitigating circumstance---Prosecution failed to prove the recovery of weapon of offence from the accused, which though could be taken as a mitigating circumstance being supportive piece of evidence, but said factor alone could not be made basis to brush aside whole of the trustworthy evidence---Evidence available on record was sufficient to convict the accused for an offence committed by him---Said mitigating circumstance could be considered to determine the quantum of sentence and the Trial Court had rightly circumvented to pass capital sentence against the accused---Appeal against conviction and sentence was dismissed in circumstances.
Sheikh Ghias-ul-Haq for Appellant.
Complainant in person.
Malik Riaz Ahmed Saghla, Deputy Prosecutor General for the State.
2018 Y L R 731
[Lahore (Multan Bench)]
Before Mudassir Khalid Abbasi, J
REHAN HAMEED---Petitioner
Versus
AYESHA ASLAM and 2 others---Respondents
Writ Petition No.7930 of 2012, heard on 6th March, 2017.
Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.17---Mental Health Ordinance (VIII of 2001), S. 32---Suit for recovery of dowry articles and ornaments---Defendant (husband) sought amendment in written statement on the plea of his mental disorder---Amendment in pleadings of suit---Scope---Defendant contended that as he was a patient of "schizophrenia" so he must be allowed to amend written statement in conformity with his mental condition---Plaintiff contended that by allowing the amendment not only the complexion of written statement would be changed but the same would also prolong the litigation---Validity---Husband, in the earlier round of litigation, while defending suit for maintenance allowance, moved application for constitution of Medical Board as he had claimed to be patient of "schizophrenia" and was unable to give evidence---Such plea of the defendant was dispelled up to the High Court---Though in terms of S.17 of the Family Courts Act, 1964 provisions of Civil Procedure Code, 1908 did not apply to the proceedings before the Family Court, however, the amendment which altered the complexion of the defence raised in written statement could not be allowed---Proposed amendment sought in the written statement, if allowed, would change the entire complexion of the plea taken by the husband in his earlier written statement, which was rejected---No infirmity having been noticed in the impugned order, constitutional petition was dismissed accordingly.
Syed Muhammad Ali and others v. Syed Dabir Ali and others 2016 SCMR 2164 and Ghulam Haider v. Muhammad Ayub 2001 SCMR 133 ref.
Ch. Muhammad Ashfaq Khan for Petitioner.
Mian Mujib ur Rehman Ansari for Respondent No.1.
2018 Y L R 735
[Lahore (Multan Bench)]
Before Mudassir Khalid Abbasi, J
MUHAMMAD IKRAM---Petitioner
Versus
DISTRICT JUDGE, SAHIWAL and 3 others---Respondents
Writ Petition No.10474 of 2016, heard on 1st February, 2017.
Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for maintenance allowance for minor---Agreement was entered between the parties for maintenance allowance of minor---Effect---Quantum of maintenance allowance of minor---Scope---Petitioner/ father contended that agreement existed between the parties for payment of fixed monthly amount for minor---Respondent/mother contended that fixed monthly amount (as per agreement) till majority of minor was unjustified---Validity---Record revealed that during cross-examination of father of minor, as defense witness, had admitted that at the time of the execution of agreement in question, dowry articles belonging to the respondent were in his possession and he had demanded that if respondent entered into agreement regarding the maintenance of minor the dowry articles would be returned to her---Both the Courts below, in circumstances, had rightly observed that the agreement was executed under compelling circumstances---Settlement between the parties could not take away the lawful entitlement of minor regarding the maintenance---Evidence showed that father had sufficient means to maintain the minor child and Family Court had maintained a balance between the earnings of the father and the essential needs of the minor---No illegality or infirmity having been noticed in judgment of the Courts below, constitutional petition was dismissed accordingly.
Mahar Muhammad Iqbal Sargana for Petitioner.
Ch. Muhammad Tanvir for Respondents.
2018 Y L R 740
[Lahore]
Before Abdul Sami Khan, J
MUHAMMAD MUBASHAR and 3 others---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.53862/B of 2017, decided on 16th August, 2017.
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i), 337-L(2), 148 & 149---Hurt, rioting armed with deadly weapon, unlawful assembly---Ad interim pre-arrest bail, confirmation of---FIR was registered with unexplained delay of eighteen days---No specific role was assigned to two accused persons whereas allegation of giving sota (stick) blow by co-accused was not supported by medical evidence---Complainant was not medically examined after the alleged incident---Another co-accused was assigned the role of causing injury on head of the injured but said co-accused was found merely present at the spot and he did not cause any injury to any body---Accused persons were previous non-convicts---Neither said accused were hardened, dangerous, desperate criminals nor they had committed alleged offence on the pretext of honour---Recovery of weapon of offence after lapse of more than one year and two months was of little help to the prosecution---Accused persons had already joined investigation which was complete to their extent, therefore no useful purpose would be served by sending them behind the bars so as to come out of jail on post-arrest bail after a few days---Ad-interim pre-arrest bail already granted to accused persons was confirmed accordingly.
2014 SCMR 1349 rel.
Babar Hussain Warriach with petitioner in person.
Irfan Zia, Deputy Prosecutor General and Hassan Baig, S.I. with record for the State.
2018 Y L R 742
[Lahore]
Before Abdul Sattar, J
MEHMOOD ANWAR through Special Attorney---Appellant
Versus
ABDUL HANAN and 3 others---Respondents
R.S.A. No.225 of 2014, decided on 3rd May, 2017.
Specific Relief Act (I of 1877) ---
----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance---Agreement to sell---Proof of---Procedure---Plaintiff examined only one marginal witness of agreement to sell but when said witness was summoned for cross-examination, it was reported that he had passed away---Statement of said one witness would have carried no weight under the law---Plaintiff had to build up his case on his own legs and not to rely or bent upon the weaknesses of his adversary---Plaintiff was required to examine at least two attesting witnesses of agreement to sell but he failed---Suit could not be decreed without complying with the essentials of Arts. 17 & 79 of Qanun-e-Shahadat, 1984---Plaintiff was required to observe the legal formalities provided in Qanun-e-Shahadat, 1984 but he failed---No illegal or factual infirmity had been pointed out in the impugned judgments passed by the Courts below---Second appeal was dismissed in circumstances.
Mst. Maryam Bibi and others v. Muhammad Rafique Anwar and others 2012 SCMR 1384 and Salman Ali v. Maqbool Hussain (deceased) through his legal representatives and others 2000 YLR 1983 rel.
Ch. Ijaz Akbar for Appellant.
2018 Y L R 747
[Lahore]
Before Shahid Hameed Dar, J
TARIQ AZIZ---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.10303/B of 2016, decided on 19th April, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 161, 165-A, 109, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect of official act, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Bail, grant of---Non-submission of challan---Legality of accused's detention in wake of non-submission of challan against him, was to be looked at inquisitively---Accused was in jail for about a year and commencement of his trial was still a farfetched idea; he was no more needed by police for purpose of further investigation or any recovery etc.---Alleged offence was not covered by prohibitory clause of S.497(1), Cr. P. C.---Continued incarceration of accused might not be of any consequence to prosecution case---No one could be left to rot in jail for an indefinite period of time, only to satisfy grudge of complainant---Bail was granted accordingly.
Hakim Mumtaz Ahmad's case PLD 2002 SC 590 and Imtiaz Ahmad v. The State PLD 1997 SC 545 rel.
Muhammad Ans Ghazi for Petitioner.
2018 Y L R 754
[Lahore (Multan Bench)]
Before Mudassir Khalid Abbasi, J
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, D.G. KHAN through Chairman---Petitioner
Versus
NATIONAL HIGHWAY AUTHORITY, ISLAMABAD through Chairman and 4 others---Respondents
Writ Petition No.7047 of 2009, heard on 7th December, 2016.
National Highway Authority Act (IV of 1991)---
----S. 10(2)(vii)---Toll tax---Exemption---Scope--- Petitioner, a statutory organization, claimed exemption from toll tax charged by the National Highway Authority for use of highway---Validity---National Highway Authority was responsible for development, up-keeping, operation and maintenance of highway network throughout the country---Petitioner could not claim exemption from payment of toll in any category unless not specifically exempted by the authorities and was liable to pay toll tax according to the Scheduled rates of each category of vehicles which could be increased or decreased by the Authority at its discretion from time to time---Petitioner could not controvert the stance taken by the Authority and nothing was placed on record to show that the toll was not levied according to law---Constitutional petition was dismissed in circumstances.
Allah Bakhsh Khan Kulachi for Petitioner.
Malik Muhammad Tariq Rajwana and Husnain Rajwana for Respondents.
2018 Y L R 759
[Lahore]
Before Shujaat Ali Khan, J
Sh. TAUSEEF HUSSAIN---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Writ Petition No.14122 of 2015, decided on 20th April, 2017.
Punjab Rented Premises Act (VII of 2009)---
----S.15---Ejectment petition---Dispute as to expiry of tenancy agreement between the parties---Dismissal of application of tenant for leave to contest---Scope--- Non-recording of evidence---Scope---Inconsistent pleas of landlord---Effect---Tenant contended that Rent Tribunal had wrongly rejected his application to leave to contest as the dispute between the parties demanded recording of evidence---Landlord contended that after expiry of tenancy agreement tenant was liable to be evicted and Appellate Court had wrongly accepted appeal of the tenant---Validity---According to the contents of ejectment petition tenancy between the parties was oral in nature starting from the year 2001 whereas tenant contested the matter on the ground that initially the premises were hired on rent by his father on the basis of lease agreement in 1984 and after the death of his father he had been put up in the premises as a tenent---Tenant produced an agreement in support of his contention during the proceedings at Appellate Court---Inconsistent pleas on the part of the landlord on different occasions fully justified acceptance of application filed by the tenant seeking leave to contest---Legality of agreement regarding lease in perpetuity against Pagri of Rs. 1,50,000/- would be adjudged by the Rent Tribunal after recording of evidence of the parties and in case landlord succeeded that the same was not properly executed document he would be entitled for decision in his favour regarding eviction of the tenant---Landlord on the one hand denied lease between the parties but also offered for repayment of amount of Pagri subject to the condition of eviction from the premises by the tenant---High Court observed that it was not feasible to determine said question without recording of evidence of the parties and directed the Rent Tribunal to decide the ejectment petition after recording the evidence of the parties---Constitutional petition was dismissed accordingly.
Ahmad Waheed Khan for Petitioner.
2018 Y L R 763
[Lahore]
Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ
ABDUL MAJEED and 3 others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.1288 of 2014 and Murder Reference No.317 of 2014, decided on 2nd May, 2017.
Penal Code (XLV of 1860)---
----Ss. 302, 337-A(ii), 337-F(ii) & 34---Qatl-i-amd, shajjah-i-mudihah, badi'ah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party made firing on complainant party, resultantly, one person died and two were injured---Admittedly, complaint contained exhaustive detail of the incident wherein the names of all the six accused were mentioned with their respective roles as well as weapons and there was a reference to a motive as well---Record showed that autopsy was conducted at 8.00 a.m. of the following day despite arrival of dead body along with the injured on the preceding evening at 6.45 p.m.---Said facts would admit the only irresistible conclusion that the matter was not reported to the police at a point of time being suggested by the complainant---Complainant, during the course of cross-examination, altered not only the sequential order of assault, roles allegedly played by the accused-appellants had been massively changed and so were about the weapons used---No reference to the use of firearms in the occurrence in application submitted subsequently by the complainant, however, it had been detailed in application submitted earlier for the registration of case mentioning two unknown assailants holding firearm weapons as well as use thereof---Reasons cited in the subsequent application were far from being sufficient---No recovery was effected and in the absence of consequential recovery, prosecution case faltered on the forensic side as well---Absence of casings at the crime scene despite accusation of indiscriminating firing was intriguing---Circumstances established that prosecution case was fraught with doubts and occurrence did not appear to have taken place in the manner as alleged in the application, benefit of which would resolve in favour of accused-appellants--- Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court against the accused persons.
Azam Nazir Tarrar, Zahoor ul Haq Kayani, Umar Hayat Bhatti, Malik Safeera Khan Waseer for Appellants.
Rana Imtiaz Hussain for the Complainant.
Rana Muhammad Shafique, D.D.P.P. with Ghulam Hussain, S.I. for the State.
2018 Y L R 776
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
AFTAB AHMAD---Petitioner
Versus
MEMBER (JUDICIAL-I) BOARD OF REVENUE PUNJAB, LAHORE and another---Respondents
Writ Petition No.279 of 2011, decided on 30th March, 2017.
(a) Punjab Land Revenue Rules, 1968---
----R. 17---Punjab Board of Revenue Act (XI of 1957), S. 8---Constitution of Pakistan, Art. 204---Lambardar, appointment of---Appointment order was maintained upto the Supreme Court---Member, Board of Revenue passed order in review whereby he recalled the said appointment---Validity---District Collector, Member, Board of Revenue and High Court through comprehensive orders had considered the petitioner to be the best amongst the contestants---Supreme Court had upheld the said view and appointment attained finality---Member, Board of Revenue without considering the scope and mandate of review passed the impugned order---Petitioner was not given preference over respondent on the sole score of academic qualification rather he had been given an edge with distinction in hereditary claim, extent of property, personal influence, strength and importance of his tribe---No allegation with regard to bogus certificate having been agitated upto Supreme Court in the earlier litigation, respondent was not competent to raise any new plea in the review petition as the alleged certificate was issued subsequent to the orders passed in the earlier round of litigation---Review could not be based on happening of subsequent events---Member, Board of Revenue was not competent to reopen the facts of the case which had already been determined by his predecessor---Time barred review application was entertained which was not accompanied by application for condonation of delay---Order passed by the Court/Tribunal should be indicative of the fact that it was aware and conscious of the question of limitation---Impugned order had been passed erroneously without attending the issue of limitation---Member, Board of Revenue could not sit over the orders passed by the High Court as well as Supreme Court---Order of Member, Board of Revenue having been passed without legal authority was set aside---Member, Board of Revenue had committed contempt of Court and he was issued show-cause notice---Chief Secretary was directed by the High Court that if said officer was still in service he should not be assigned any judicial work---Constitutional petition was allowed in circumstances.
Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 rel.
(b) Punjab Board of Revenue Act (XI of 1957)---
----S. 8---Review---Scope.
Mushtaq Ahmed Kashmiri for Petitioner.
Muhammad Arif Yaqoob, Addl. A.G. for Respondent No.1.
Irfan Akram Sheikh and Ihsan Ahmed Bhindar for Respondent No.2.
2018 Y L R 782
[Lahore (Multan Bench)]
Before Abdul Rahman Aurangzeb, J
ALI IRTAZA---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents
Writ Petition No. 8676 of 2015, heard on 16th August, 2017.
Guardians and Wards Act (VIII of 1890)---
----S.25---Application by mother for custody of minor daughter---Defendant/ father disputed the paternity and moved application for DNA test---DNA test---Effect--- Disqualification of mother for custody---Scope---Re-marriage of mother to person in prohibited decree of daughter--- Effect--- Non-appraisal of evidence by the subordinate courts---Effect---Welfare of minor---Scope---Petitioner/father contended that without adverting to real issues of disqualification of the mother in wake of her second marriage, both the courts below had decided the matter on flimsy ground that the petitioner had moved application for DNA test of minor daughter---Respondent/mother contended that father who had not by heart accepted the minor as his daughter was not entitled for the permanent custody of the minor---Validity---Issue of welfare of minor had not been properly evaluated by the two courts below---Record revealed that evidence produced by the parties was totally deficient in nature and the required evidence of the parties was not made part of the record from where it could be ascertained that whether the petitioner had not accepted the paternity of minor or otherwise---Application for DNA test was also not available on the record of the Trial Court---Finding of the Trial Court without determination of admissibility of the application for DNA test was an act of surmises and conjectures, hence, both the courts below had not adverted to said fact judiciously---Even if it was accepted that the petitioner had willfully moved an application for DNA test of his minor daughter, which was negated by the petitioner, had no bearing on the fate of custody of minor as the authenticity of DNA test was not a conclusive opinion in dispute of paternity---Decision of application under S.25 of the Guardians and Wards Act, 1890, for custody of minor, could not merely be based on the application for DNA test---Mother was disqualified for retaining the custody of child in case of her second marriage with a person who fell within the prohibited degrees---Trial Court had not considered such aspect and effect of remarriage of parents---Evidence with regard to the custody of the minor/ girl was to be determined by the Trial Court in the prime interest of justice---High Court remanded the case to the Trial Court while setting aside the decrees and judgments passed by the two Courts below---Constitutional petition was allowed in circumstances.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mst. Rubina Kausar v. Additional Sessions Judge and others PLD 2017 Lah. 604; Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others PLD 2003 SC 877 and Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 ref.
Irfan Qadir Babar for Petitioner.
Iftikhar Majid for Respondent No.3.
2018 Y L R 829
[Lahore]
Before Ch. Muhammad Iqbal, J
Mst. BILQEES BARKAT and 3 others---Petitioners
Versus
MEMBER, BOARD OF REVENUE J-V/Chief Settlement Commissioner and 4 others---Respondents
Writ Petitions Nos. 79106-R and 79005 of 2017, decided on 28th September, 2017.
(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---
----Ss. 2, 4, 5, 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)---Scheme for Management and Disposal of Available Urban Properties, 1977, Para, 1---Transfer of Property Act (IV of 1882), S. 41---General Clauses Act (X of 1897), S. 21---Allotment of evacuee land---Cancellation of---Fraud---Effect---Repeal of evacuee laws---Chief Settlement Commissioner, jurisdiction of---Bona fide purchaser---Scope---Chief Settlement Commissioner cancelled the allotment of suit land and all the subsequent mutations---Contention of petitioners was that they were bona fide purchasers of suit land---Validity---Entire land of the Mouza was acquired by the Government leaving behind no private ownership in field---Only those evacuee could be considered to be genuine claimant who had abandoned their urban/agricultural land in India with effect from 01-03-1947 to 15-06-1953---Land of petitioners in the Mouza, if any, on the basis of which original allottee and others had submitted their claims had already been acquired in 1911 much before the Independence---Original allottee did not qualify as genuine claimant and his claim was fake, fictitious and result of fraud---Chief Settlement Commissioner/ Notified Officer passed injunctive order restraining further proceedings or making any allotment including claim of petitioners which order was upheld upto Supreme Court---Petitioners during existence of said order got allotted the suit land in their favour by committing misrepresentation and fraud---Original allotment was based on fraud and any further alienation in presence of restraining order would carry no significance--- Chief Settlement Commissioner had notified the urban limits as building site same stood excluded from the constituted compensation pool---Land in question was a building site and same was not available for allotment against outstanding verified claims---Fraud would vitiate the most solemn proceedings---Any edifice raised on fraudulent transaction stood automatically demolished---Any ill-gotten gain achieved by fraud could not be validated under any law---Evacuee laws stood repealed with effect from 01-07-1974---Chief Settlement Commissioner was vested with no authority to make any fresh allotment or entertain any claim---Limited jurisdiction was bestowed upon Chief Settlement Commissioner to conclude the pending proceedings before him or those matters which were referred to by the Supreme Court or High Court---Inquiry proceedings with regard to commission of fraud, in the present case, were pending since 06.07.1972 (before repeal of evacuee laws)---Chief Settlement Commissioner was well within jurisdiction to take cognizance of the matter in the present case---Forum at which fraud was committed had the jurisdiction to investigate the said fraud and undo the same---High Court remanded the matter to notified officer to determine the geniuses of the claim who had the jurisdiction to decide the matter afresh---Subsequent purchaser herself had committed default in making bona fide investigation qua the genuineness of vendor's title---Protection of S.41 of Transfer of Property Act, 1882 was not available to the subsequent vendee of evacuee property---High Court could even decline to interfere in erroneous order on the sole ground of unclean hands of the petitioner---Petitioner had purchased the suit land during pendency of inquiry proceedings in settlement department qua bogus and fraudulent claims without any investigation and she was precluded to claim better title or any protection of being bona fide purchaser---Any infirmity or flaw in the title of vendor would travel with the property and subsequent purchaser was debarred to claim better title than that of vendor---State land/Urban evacuee property could not be sold through any private treaty but could be let or leased out through transparent, unrestricted public auction to fetch the maximum price---Chief Settlement Commissioner/Notified Officer had applied his judicious mind and rightly passed the impugned order---Constitutional petition was dismissed in limine.
[Case-law referred].
(b) Fraud---
----Fraud would vitiate the most solemn proceedings.
[Case-law referred].
(c) Administration of justice---
----Ill gotten gain achieved by committing fraud could not be validated under any law.
Ch. Shaukat Ali Javed for Petitioners.
Mian Subah Sadiq Wattoo, AAG.
Muhammad Yaqoob Kanjoo for Respondents Nos. 1 and 2/Settlement Department on Court's call.
2018 Y L R 860
[Lahore]
Before Aalia Neelum and Raja Shahid Mehmood Abbasi, JJ
DILSHAD AHMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.908 of 2010, heard on 10th April, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that police party received spy information that two narcotics peddlers were selling charas and if immediate raid was conducted then heavy quantity of narcotics substance would be recovered---Police party reached at the spot and on the signal of the informer encircled both the accused, who on seeing the police party tried to run away but accused was arrested at the spot, whereas co-accused succeeded to flee away---Four packets of charas, tied with his Shalwar were recovered along with sale proceed on search of accused---Accused during interrogation, made disclosure and got recovered 29 packets of charas, concealed in the earth in an iron trunk---Said packets were taken into possession and was found to be weighing 01-maund and 1¼ kilograms---Out of the recovered substance, the complainant separated 5/5-grams from each packet for chemical analysis---Evidence of the complainant showed that on receiving the information, he conducted raid and got recovered four packets of charas and soon after recovery he did not prepare complaint and conducted investigation on the spot---Said evidence of the complainant revealed that the complainant had investigated the case prior to lodging of the FIR, which rendered the whole of the prosecution version doubtful---Investigating Officer had deposed that before his reaching on the spot, complainant had already prepared the complaint, the recovery memo and the site plan of the place of occurrence---Charas was weighed by the complainant in the presence of Investigating Officer---Complainant was not justified in conducting investigation before registration of FIR and preparing all the documents relating to different steps of investigation---Such investigation without registration of the FIR was impermissible which would vitiate the entire proceedings---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic---Appreciation of evidence---Contradictions and discrepancies---Prosecution case was that initially four packets of charas were recovered from the possession of accused---Accused, during interrogation, made disclosure and got recovered 29 more packets of charas, which were concealed in the earth in an iron trunk---Said packets were taken into possession and was found to be weighing 01-maund and 1¼ kilograms---Investigating Officer admitted during cross-examination that on the complaint, the offence was first written as 9(a) and then it was made as 9(c); in recovery memo, there was interpolation where the weight of the charas was shown---Recovery witness deposed that cuttings were present at the time when he signed the recovery memo---Record transpired that complaint and recovery memo had been interpolated regarding weight of recovered substance and nature of offence---Said discrepancies and interpolation cast doubt on the genuineness of the prosecution case---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody of recovered substance---Prosecution case was that initially four packets of charas were recovered from the possession of accused---Accused, during interrogation made disclosure and got recovered 29 packets, of charas concealed in the earth in an iron trunk---Said packets were taken into possession and were found to be weighing 01-maund and 1¼ kilograms---Prosecution witness/Muharrar of the police station deposed that complainant handed over to him thirty three sealed parcels said to contain charas as the case property along with thirty three parcels of samples for keeping them in safe custody---Witness deposed that he handed over thirty three sealed parcels of samples to a constable for onward transmission to the Chemical Examiner---Witness further deposed that twenty nine parcels of samples were received in the Office of Chemical Examiner while four were returned with objection, which were again forwarded to the Chemical Examiner through another constable after removing the objection---Complainant had not deposed that he handed over sealed parcels of samples and parcels of remaining recovered substance to Muharrar---Contrary to the deposition of Muharrar, complainant deposed that Investigating Officer came at the spot, received the accused, took into possession the recovered charas, the sale proceed and the samples of the charas---Complainant deposed that the case property was taken to the police station by the Investigating Officer---Investigating Officer deposed that complainant had handed over the case property to Muharrar and entry in relevant register was made by Muharrar---Record showed that there was no explanation to establish safe custody of recovered charas and parcels of samples drawn from the seized charas---Sealed parcels of samples and parcels of remaining recovered substance received by Muharrar from complainant were not related to the present case---By mere oral evidence of complainant, recovery witness and Investigating Officer as to the recovery of charas weighing one maund and 1¼ kilograms the burden of responsibility of prosecution had not been discharged---Said inconsistencies and contradictions showed that prosecution had not been able to prove safe custody of the recovered substance and parcels of samples through material and cogent evidence---Facts of the case showed doubt as to whether the samples analyzed by the Chemical Examiner were taken out of same material that was allegedly recovered from the accused during the search---Circumstances established that there was no evidence to connect the reports of Chemical Examiner Reports with the substance which was seized from the possession of the accused---Said circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.
Shahid Masood Khan for Appellant.
Muhammad Waqas Anwar, DPG for the State.
2018 Y L R 890
[Lahore]
Before Aalia Neelum, J
ASGHAR ALI---Appellant
Versus
The STATE and others---Respondents
Criminal Appeal No.519 and Criminal Revision No.363 of 2009, heard on 15th February, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that accused made straight fire with his 12-bore, gun which hit on the front side of chest of the son of complainant---Accused made second fire, which landed on the right arm of the victim---Co-accused during the alleged occurrence, continued firing---Accused and his co-accused took the victim in their house in injured condition where he succumbed to the injuries---Occurrence took place at about 8.30 p.m on 2.3.2006---Witnesses informed the father of deceased about the incident immediately---Complainant reported the matter to the police at 7.15 a.m. on 3.3.2006 through written complaint and FIR was chalked out at 7.25 a.m. on 3.3.2006---Police Station was at the distance of eighteen kilometers from the place of occurrence---Inordinate delay of ten hours and forty five minutes in reporting the incident had not been explained by the prosecution---Such delay was sufficient for deliberation and consultation---Delay in lodging the FIR often resulted in embellishment, which was creation of an afterthought---Complainant got prepared the application for registration of criminal case from his relative---Non-mentioning of said fact in the application indicated that the complainant had not stated complete truth---Post-mortem of the deceased was conducted with the delay of seventeen hours and thirty minutes from the death of deceased---Prosecution had failed to explain the delay in reporting the incident as well as in conducting postmortem examination of the dead body of the deceased, which was fatal to the case of the prosecution.
Allah Bachaya and another v. The State PLD 2008 SC 349 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Prosecution case was that accused made straight fire with his gun 12-bore, which hit on the front side of chest of the son of complainant---Accused made second fire, which landed on the right arm of the victim---Co-accused continued firing during the alleged occurrence---Accused and his co-accused took the victim in their house in injured condition where he succumbed to the injuries---Ocular account was furnished by witnesses including complainant---Complainant was father of the deceased whereas eye-witnesses were paternal uncle and khalazad of deceased---Complainant was not a witness of the occurrence, his evidence could be stated as hearsay evidence which could not be treated as evidence in the eyes of law---Remaining eye-witnesses could not justify their presence at the spot---Prosecution had alleged that when deceased reached near the house of accused, then accused raised lalkara and made straight fire with his repeater gun, which hit on his chest---Accused made second fire, which hit on right side of the right arm of the deceased---Eye-witnesses were attracted to the place of occurrence on hearing hue and cry---Investigating Officer found blood in a room of residential house of accused---No blood or trail of blood was found at any other place---No abrasion or scratches were found on the dead body of the deceased---Investigating Officer deposed during his cross-examination that deceased and his friend, who had some transaction with accused, forcibly entered into the house of accused for recovery of that amount---Deceased had no connection with transaction between accused and friend of deceased---Deceased being a criminal went into the house of accused just to obtain money from him forcibly---Eye-witnesses showed their presence, before the Investigating Officer, at the time of occurrence at a distance of 1 ½ acres from the house of accused---Circumstances showed that it was hard to see the occurrence from such a distance and to identify the assailants and their respective arms---Investigating Officer had concluded that incident took place in the dark night---Medical evidence revealed that the diameter of injuries 1 to 6 were 2x1½ cm, 1x1 cm, 1x1½ cm, 2x1½ cm and 1½x1 cm but without tattooing or blackening---Said injuries were not gunshot injuries and could not be caused with a 12-bore repeater gun, which was allegedly used by the accused in the occurrence---Evidence of prosecution witnesses and site-plans were fully consistent on the point that accused made fire shots from his 12-bore repeater gun which was not supported by medical evidence---Prosecution version in the written complaint was that, occurrence took place within the view of the complainant, whereas the eye-witnesses claimed that they had informed the complainant about the occurrence---Both eye-witnesses on the material point, negated the complainant, which showed that they were not eye-witnesses of the incident because natural conduct would be that when anyone had seen the incident, he would straightway go to the police station for reporting the incident and would not leave the body of deceased at the mercy of others---Evidence of complainant and eye-witnesses showed that after due deliberation and consultation, false case was lodged against the accused---In the absence of independent corroboration and independent witnesses, reliance could not be placed on the evidence of said interested witnesses---Circumstances established that there was conflict between medical and oral evidence, which cast doubt about the prosecution story, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the trial accused.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---.12-bore repeater gun and five live cartridges were recovered from accused---Positive report of Forensic Science Laboratory was available, which indicated that .12-bore repeater gun allegedly recovered was used in the incident---Record showed that said gun was recovered from the house of the accused---Complainant deposed during cross-examination that accused was not present at his house when the police arrived---Accused could not be expected to keep the gun in his house when he left his house after the occurrence---Investigating Officer deposed that empty cartridges of .12-bore gun and 30-bore pistols were taken into possession from the roof and courtyard---Prosecution witness (police official) deposed that Investigating Officer handed over to him sealed parcel of one empty of 12-bore gun, which was sent to the Forensic Science Laboratory---Report of Forensic Science Laboratory revealed that eight crime empties were received in the said laboratory on 10.3.2006---Police Official/witness deposed that on 9.3.2006, he deposited one crime empty of .12-bore gun ---Report of Forensic Science Laboratory, in circumstances, created doubt as to whether .12-bore crime empty analyzed by the Forensic Science Laboratory was the same which was handed over to Police Official---Said inconsistencies and contradictions had thrown doubt upon the veracity of the prosecution case.
Mursal Kazmi alias Qamar Shah and others v. The State 2009 SCMR 1410 rel.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 342 & 340(2)---Statement of accused in defence---Scope---Statement of accused recorded under Ss. 342 & 340(2), Cr.P.C. could not be used as evidence in the case to prove the guilt of the accused.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Conviction---Scope---Prosecution had to stand on its own legs---Prosecution had to prove the charges beyond any shadow of doubt---Prosecution could not take any benefit of defence plea when prosecution had brought incriminating evidence against the accused and failed to prove the same.
Khadim Hussain v. Mst. Mansab Mai 2006 SCMR 1142 and Azhar Iqbal v. The State 2013 SCMR 383 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---Motive of the occurrence as alleged by the complainant was that deceased and his friend went to accused and asked for the return of borrowed amount, to which accused refused and a quarrel took place between them, which was resolved by the intervention of the people---One eye-witness had deposed that a quarrel had taken place between accused and deceased on money matter; another eye-witness deposed that a quarrel had taken place between accused, co-accused and deceased and his friend but they were separated by the intervention of the people---Said versions of witnesses were not mentioned in their statements recorded before the police, therefore, they had made improvements---Investigating Officer had stated that motive part of the occurrence did not take place on the day of occurrence---Circumstances established that prosecution failed to prove the alleged motive against the accused.
(g) Criminal trial---
----Benefit of doubt---Principle---Single circumstance, which created doubt regarding the prosecution case, would be sufficient to give benefit of doubt to the accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Faisal Shahzad Gondal for Appellant.
Muhammad Akhlaq, Deputy Prosecutor General for the State.
Rana Aftab Ahmad for the Complainant.
2018 Y L R 908
[Lahore]
Before Shahid Hameed Dar, J
Haji MUHAMMAD YASIN---Petitioner
Versus
The STATE and another---Respondents
Crl. Misc. No.41393 of 2017, decided on 14th July, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471, 409 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust, abetment, criminal misconduct---Bail, grant of---Accused a private person who got into the present case due to transfer of ill-gotten funds by the co-defrauders to his Bank account---Accused's involvement in the case for an offence under S. 409, P.P.C. might be open to a serious exception---Grant of bail in offences not falling under prohibitory clause of S. 497, Cr.P.C. was a rule and rejection thereof an exception---Embezzled money which routed through accused's Bank account had already been deposited by him and pecuniarily speaking, he owned nothing to the public exchequer---Continued incarceration of accused as under trial prisoner would become pre-mature punishment---Bail was granted accordingly.
Shamraiz Khan's case 2000 SCMR 157 rel.
Ch. Zulfiqar Ali for Petitioner.
2018 Y L R 920
[Lahore]
Before Abdul Sami Khan, J
KHAYAL DIN---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.78971-B of 2017, decided on 26th October, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Accused was named in FIR, yet role of ineffective firing was attributed to him---Question of vicarious liability and sharing of common intention would be determined by Trial Court after recording evidence---Rifle was recovered from the accused during investigation, no crime empty was collected by Investigating Officer during spot inspection---Value of recovery of rifle would be assessed by Trial Court at an appropriate stage---Accused was previous non-convict and was behind the bars for seven months without any fruitful progress in conclusion of trial---Investigation of case was complete and accused was no more required for further investigation---Further incarceration of accused would not serve any useful purpose---Mere heinousness of offence was no ground to refuse bail to accused---Case of accused being one of further inquiry was covered by subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.
Mumtaz Hussain v. The State 1996 SCMR 1125 rel.
Malik Zafar Iqbal for Petitioner.
Irfan Zia, Deputy Prosecutor-General for the State and Zia ASI with record.
2018 Y L R 939
[Lahore]
Before Ayesha A. Malik and Jawad Hassan, JJ
Major (R) MOEEN NAWAZ---Petitioner
Versus
Chaudhary SHAFAAT HUSSAIN and 2 others---Respondents
Writ Petition No.2847 of 2014, heard on 7th November, 2017.
Representation of the People Act (LXXXV of 1976)---
----Ss. 52, 53, 54, 56 & 63---Election petition before Election Commission---Objections---Disputed question of facts---Determination of---Procedure---Petitioners moved objection petition that copy of election petition, affidavit and documents relied upon along with notice had not been served upon them---Election Commission dismissed objection petition on the ground that Commission could resort to dismissal of election petition if legal requisites were not complied with on the face of record but when there was disputed question of fact then matter should be left to the decision of Election Tribunal---Validity---Held, Election Commission should forthwith dismiss election petition under S. 56(1) of Representation of the People Act, 1976 if it was found that provisions of Ss. 52, 53 & 54 of the Act had not been complied with---Election Commission could also refer the matter for trial to the Election Tribunal under S. 56(2) of Representation of the People Act, 1976 if election petition was not dismissed under S. 56(1) of the Act---Disputed question of facts should be heard and decided by Election Tribunal at the first instance when election petition was not dismissed by the Election Commission---Election Commission had rightly held that objection raised by the petitioners had no merit and same could be taken up before the Election Tribunal if so desired---No prejudice had been caused to the petitioners as the objection could be heard by the Election Tribunal in the first instance before proceeding with the trial---Constitutional petition was dismissed.
Inayatullah v. Syed Khursheed Ahmed Shah and others 2014 SCMR 1477 distinguished.
Talat Mehmood for Petitioners (in Writ Petition No.2847 of 2014).
Petitioner in person (in Writ Petition No.2192 of 2014).
Muhammad Anas Bin Ghazi for Petitioners (in W.P. No.3393 of 2014).
Ghulam Abbas and Mubeen uddin Qazi for Respondents.
2018 Y L R 957
[Lahore]
Before Sayyed Mazahar Ali Akbar Naqvi and Mujahid Mustaqeem Ahmad, JJ
MUHAMMAD IRFAN and others---Appellants
Versus
The STATE and another---Respondents
Criminal Appeals Nos. 1293, 1294 and Murder Reference No.427 of 2013, heard on 18th April, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused were charged for the murder of brother of complainant---Record showed that prosecution witnesses had over-heard the conversion of accused persons, at the Dera of co-accused late in the night, to the effect that accused had murdered the brother of complainant at the instance of co-accused---Said witnesses shared the said information with the complainant, who along with his brother visited the Dera of co-accused---Complainant had alleged that co-accused came there and in weeping style confessed that he had committed mistake by commission of murder of their brother through accused, they begged pardon from them---Testimony of complainant in that regard was not believable for the reason that prosecution witnesses had allegedly left Dera of co-accused during late hours of night and thereafter they purportedly met the complainant and subsequently the complainant along with other witnesses visited the Dera of co-accused---Neither any time of such visit had been stated by the witnesses nor it was believable that at odd hours of night, he would visit Dera of murderer of his brother---Co-accused in his extra judicial confession had not given details of the occurrence and as such said story could not be treated as confession made by the accused.
Nasir Javaid v. The State 2016 SCMR 1144 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence---Scope---Accused were charged for the murder of brother of complainant---Prosecution witness deposed that on 2.1.2011 at 7/8.00 p.m. he along with witness, (given up) visited house of the deceased in order to obtain a chit to get diesel on credit from his petrol pump---Said witnesses stated that they saw the co-accused along with unknown pillion rider on a motorcycle in the street---Witnesses, after getting favour from the deceased proceeded back and again saw co-accused on the motorcycle---Said incident of last seen was told by said witnesses to the complainant on 8.5.2011---Record showed that residence of witness of last seen was situated at sixteen kilometers from the place of occurrence and thus he was a chance witness---Presence of said witness at the scene of occurrence on the day of incident and time was not established---Witness had claimed that he asked from the deceased about co-accused who told that co-accused did not visit him in those days, then why said witness did not tell the deceased or even to the complainant or the investigator before 8.5.2011 about presence of co-accused in the street on the day of occurrence---Witness had also claimed that on his return, he again met co-accused in the street but the witness did not consider it appropriate to even shake hand with co-accused and shared the conversation of deceased about co-accused---Said conduct of witness made his version doubtful---Even otherwise, witness had not ascribed any role to co-accused about the present occurrence---No registration number, make, colour of motor cycle had been given by said witness and as such that omission on his part disqualified him to be treated as a witness of last seen.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Scope---Prosecution case was that the brother of complainant was murdered by unknown person---Ocular account of the occurrence had been furnished by the witnesses including complainant---Complainant in his examination-in-chief had deposed that on 2.1.2011, he along with witness in car proceeded towards residence of the deceased and on the way, he picked co-accused at 8.35 p.m.---Said witnesses when reached near the house of deceased, they had seen that the deceased was arguing with the unknown person of young age wearing shalwar and shirt---Complainant later on, had come to know the said unknown person as accused---Accused fired with .30-bore pistol which hit on left side of head of deceased and accused succeeded to escape---On 12.5.2011, complainant had joined identification parade and identified accused to be said the unknown person ---Complainant had stated that co-accused had committed the present offence to get control of petrol pump of deceased---Complainant stated at trial about motive but in the FIR, no motive was attributed at all---Witness had narrated the occurrence in line with testimony of complainant---Said witness had claimed that he correctly identified the accused---Witness during cross-examination, had conceded that his residence was situated at fifteen kilometers from the place of occurrence---Witness was cultivator by profession and purportedly, he along with the complainant and co-accused was invited by the deceased to join his election campaign for the office of President of Tehsil Bar Association---Circumstances suggested that said witness was a chance witness and it could not be readily accepted that he could play any role in election campaign of the deceased---Presence of said witness at the scene of occurrence at the relevant time was not believable---Testimony of said witness was dishonest improvements---Witness had not narrated the date of identification parade and conceded that he had not assigned any role played by accused before the Judicial Magistrate---Complainant in the FIR and witness in his statement under S. 161, Cr.P.C. had not given the features of accused and thus it was not readily believable that they would correctly capture his fleeting features during night time and after a lapse of 4-1/2 months, they would correctly identify him---Judicial Magistrate had deposed that on 12.5.2011, he supervised identification parade and witnesses correctly identified accused---Said witness conceded during cross-examination that in his report, he had noted down that the witnesses had told the role of accused but he had not given the nature of role which was described by the witnesses---Said omission on the part of the witnesses and the Judicial Magistrate about specific role of accused in the occurrence was fatal to the prosecution case to bring home guilt against accused---Circumstances established that ocular account and identification parade had no potential to bring home the guilt of the accused persons for commission of the occurrence.
Ghulam Hussain and others v. The State 2005 YLR 405; Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227 and Azhar Mehmood and others v. The State 2017 SCMR 135 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Judicial confession of accused---Evidentiary value---Record showed that accused was arrested on 10.5.2011 and on the same day, he was produced before the Judicial Magistrate with muffled face, who recorded his confession on the same day---Judicial Magistrate during his cross-examination conceded that he had not mentioned in the proceedings that hand cuffs were removed before or during recording the statement of accused---Judicial Magistrate in the initial proceedings of recording confessional statement of the accused had marked presence of Police Inspector and Public Prosecutor---When accused was re-summoned for recording his confession, Judicial Magistrate recorded the presence "As Before" which showed that Judicial Magistrate had recorded confessional statement of accused with casual manner---Circumstances established that whole confession proceedings were doubtful and thus not acceptable as gospel truth.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of different articles from accused---Reliance---Scope---Investigating Officer had recovered motor cycle and 30-bore pistol at the instance of accused immediately after his arrest---Record showed that in the FIR or the statements of the witnesses, no description of motor cycle, its registration number, colour, make had been given as such said recovery could not be used as corroborative piece of evidence---Report of Forensic Science Laboratory about recovery of 30-bore pistol and crime empty secured from the scene of occurrence, on the date of occurrence, was negative and as such, said piece of evidence was of no use to the prosecution to corroborate the ocular account.
Muhammad Azhar alias Jajja v. The State 2016 SCMR 1928 rel.
(f) Criminal trial---
----Medical evidence---Scope---Medical evidence could indicate nature of injuries/ cause of death of a person but it cold not hint towards the perpetrator of offence.
2017 SCMR 135 rel.
(g) Criminal trial---
----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in the prudent mind about the guilt of accused, would entitle the accused to its benefit, not as a matter of grace and concession, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Azhar Mahmood and others v. The State 2017 SCMR 135 rel.
Syed Sajjad Sarwar Gillani, Ghulam Nabi Ranjha and Shabbir Hussain for Appellants.
Azhar Hussain Malik, Additional Prosecutor General for Respondents.
Syed Zahid Hussain Bukhari and Khalida Parveen for the Complainant.
2018 Y L R 985
[Lahore (Rawalpindi Bench)]
Before Muhammad Tariq Abbasi, J
Mst. PARVEEN AKHTAR and 4 others---Petitioners
Versus
JUDICIAL MAGISTRATE SECTION 30 and another---Respondents
Crl. Misc. No.1056-Q of 2017, heard on 6th June, 2017.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 200, 204 & 561-A---Private complaint---Issuance of process against accused---Summoning of accused by trial Court to face trial---Powers and jurisdiction of High Court---Scope---Powers and jurisdiction of High Court under S. 561-A, Cr.P.C. were discretionary in nature and were exercised only if the Court was satisfied that no adequate remedy was provided by law---Exercise of powers under S. 561-A Cr.P.C. was an exception and not a rule.
Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189 rel.
(b) Criminal trial---
----Two versions---Scope---When there were two versions of an incident, one version put forward by one party and counter version by its adversary; Trial Court while assessing evidence brought on record by the parties had to keep both versions in juxtaposition and then arrive at a final conclusion.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 561-A, 200 & 204---Penal Code (XLV of 1860), Ss. 337-F(i), 427, 447, 506, 147 & 149---Private complaint---Issuance of process against accused---Summoning of accused by Trial Court to face trial---Powers and jurisdiction of High Court---Scope---Respondent had filed a private complaint against the petitioners and six others---Trial Court had summoned the petitioners and the others to face the trial---Petitioners contended that respondent had filed the private complaint as a counter blast of FIR got lodged by the petitioners and as such the complaint was not maintainable---Validity---Filing of complaint, recording cursory evidence in it and then on the basis of available evidence, order for summoning of an accused, could not be termed as abuse of process of law---Such like proceedings could not be challenged under S. 561-A, Cr.P.C. but it might be called in question, through a revision petition and that too, before the revisional court of first instance---Petitioners, instead of adopting the legal mode of challenging the summoning order, through a revision petition before the competent court, had sought quashing of the said order by way of petition under S. 561-A, Cr.P.C., which was not competent and maintainable, thus dismissed in limine.
Syed Zulfiqar Abbas Naqvi for Petitioners.
Sheikh Istajabat Ali Deputy Prosecutor General for the State.
2018 Y L R 997
[Lahore (Multan Bench)]
Before Mujahid Mustaqeem Ahmed, J
KAUSAR BIBI---Petitioner
Versus
GHULAM SHABBIR---Respondent
Transfer Application No.38-C of 2017, decided on 19th September, 2017.
Family Courts Act (XXXV of 1964)---
----S.25-A---Transfer of case---Suit for maintenance allowance of the minor filed by mother and guardian petition moved by father pending at different districts---Convenience of the mother and minor---Scope---Petitioner/mother contended that it was inconvenient for her and the minor to appear before court in another district---Validity---Record revealed that the petitioner/mother of the minor was resident of Tehsil "J" and as such it was quite inconvenient for her to appear before the Family Court, "M" to contest the guardian petition---For adjudication of the guardian petition, presence of the minor before the Court was also needed and it would be inconvenient, difficult and hazardous for the health of minor to appear before the Guardian Judge at "M"; it was not easy for a lady to travel alone to another district to pursue and defend the case; she would have to bear travelling expenses also so, in family matters, while adjudicating transfer application convenience of lady had to be given preference---High Court observed that it was always desirable that family suits were to be tried, heard and adjudicated by one and the same Court to avoid conflicting judgments---High Court withdrew the guardian application from Guardian Judge, "M" and entrusted the same to the Family Court, at "J", where the suit for maintenance allowance of minor was already pending---Constitutional petition was allowed accordingly.
Kashif Meraj v. Judge Family Court and another 2010 YLR 2568; Mst. Sugra Bibi v. Muhammad Akbar Ali 2010 YLR 12; Atiqa Muzammil v. Muhammad Umar Farooq 2010 YLR 1519 and Mst. Shazia v. Sohail Nazir Khan 2015 YLR 684 ref.
2018 Y L R 1028
[Lahore (Multan Bench)]
Before Ch. Muhammad Masood Jahangir, J
Mst. ANWAR KALSOOM and 2 others---Petitioners
Versus
GHULAM RAZA and another---Respondents
C.R. No. 899-D of 2011, heard on 23rd May, 2017.
(a) Gift---
----Valid gift---Essentials---Mutation---Proof--- Procedure--- Maxim: Secundum allegata et probata, principle of---Applicability---Transaction with illiterate lady---Requirements---Plaintiff failed to appear in the witness-box---Non-framing of issue---Fraud---Effect---Contention of plaintiffs was that they neither made any proposal of gift in favour of defendant nor same was accepted by him---Suit was dismissed concurrently---Validity---Defendant being beneficiary, was bound to plead and prove the original transaction of gift which might have been effected prior to the day of attestation of mutation or at least on the day when it was entered by the revenue official---Conditions of gift i.e. offer, acceptance and delivery of possession must be established by the donee through his evidence---Donee was bound to prove that donor approached revenue officials for the entry and attestation of mutation in the assembly convened for the said purpose and made statement to acknowledge the oral transaction in presence of two notables of the vicinity---Party before proving an act had to narrate its details in pleadings---Written statement of defendant-donee was silent to the extent of essential details i.e. time, date, venue and names of witnesses to disclose when, where and before whom donors had made declaration of gift which was accepted by him and possession changed hands in lieu thereof---Neither any gift was made nor donor ever appeared before the revenue officer for attestation of impugned mutation of oral gift---When donor deposed that he/she did not appear before revenue officer for attestation of mutation, onus would shift upon the beneficiary to prove the attestation of mutation as well as transaction reflected therein---If any of the three ingredients of gift was not proved then it would not be a valid transaction---Major and vital contradictions existed in the statements of witnesses of defendant-donee---Number of cuttings in the relevant register while making entry and attestation of impugned mutation as well as recording of statements of the donors were on record which had made it dubious and suspicious---Attestation of mutation was a series of acts which was required to be proved independently---Mere signing or putting thumb impression on the mutation would not amount to valid attestation/execution---Witnesses on whose identification and attestation impugned mutation was sanctioned were not examined despite their availability---Adverse inference would be drawn against the beneficiary of gift mutation in circumstances---Donors were folk and illiterate ladies and when mutation was allegedly attested no independent advice was available to them---Lady who was ignorant and illiterate was equally entitled for the same treatment which was available to a pardanasheen lady---Courts of law could not remain oblivious regarding erosion of moral values---Defendant had deprived his real sisters of their valuable property---Plaintiffs being married had their independent families including husband as well as siblings---Prudent man could not conceive that while ignoring their families why they were compelled to make a gift of their property to one of their brothers---Muslim could transfer his property through declaration of gift in favour of any person---Some reason should exist as to why donor was compelled to make a gift in favour of alien while eliminating his/her heirs which was lacking in the present case---Party having personal knowledge of facts must examine himself to depose those facts and face the test of cross-examination---If sufficient infirmity on the part of party existed then he might be immuned from his personal appearance in the witness-box---Rights of simpleton, folk and illiterate ladies were involved who might not be aware of judicial proceedings and could not face the test of intricate questions to be put to them in their cross-examination---Donors-ladies were justified to appoint their close relatives as special attorney who being conversant with the facts of the case magnified entire details of the lis---No adverse inference could be drawn against the donors-ladies in circumstances---Where parties had led their evidence keeping in mind their pleadings then objection regarding non-framing of any issue or improper settling of issue would lose its weight---Donee had failed to prove the validity of gift allegedly made by the plaintiffs---Entry in the revenue record had been managed fraudulently which was void---Any superstructure built on the basis of a fraudulent transaction must collapse upon failure of such transaction---Findings recorded by the Courts below were based on mis-reading and non-reading of evidence---Defendant remained unsuccessful to establish his bona fide purchase whereas plaintiffs succeeded to establish that mutations were void, illegal, against law, based on fraud, misrepresentation and inoperative upon their rights---Impugned judgments and decrees passed by the Courts below were set aside---Suit filed by the plaintiffs was decreed with costs throughout---Revision was allowed in circumstances.
Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Mt.Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 P.C 204; Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591; Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868; Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC 1023; Meraj Din v. Mst. Sardar Bibi and 5 others 2010 MLD 843; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 and Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Abdul Karim v. Haji Noor Badshah 2012 SCMR 212 rel.
(b) Punjab Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Oral transfer of immovable property effected through mutation---Scope---Mutation is always sanctioned through summary proceedings and is intended to keep the record update for the collection of land revenue---Such entries are made in the concerned Register under S. 42 of the Land Revenue Act, 1967, which attain no presumption of correctness prior to its incorporation in the Record of Rights---No doubt, the entries in the mutation are admissible in evidence of a case, but the same are required to be proved independently by the person relying upon it through affirmative evidence, because an oral transaction reflected therein neither confers the title in favour of its beneficiary nor can establish the same.
Ch. Khawar Siddique Sahi for Petitioners.
Respondent No.1 already proceeded ex parte vide order dated 31.01.2012.
Muhammad Hayat Hiraj for Respondent No.2.
2018 Y L R 1045
[Lahore]
Before Syed Shahbaz Ali Rizvi and Ahmad Raza Gilani, JJ
MUHAMMAD AFZAL and others---Appellants
Versus
The STATE and others---Respondents
Cr. Appeals Nos.1008 and 997 of 2008, Cr. Misc. No.147 of 2016 in Cr. Appeal No.1137 of 2008, heard on 23rd May, 2017.
Penal Code (XLV of 1860)---
----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Conversion of Punishment under one provision of Chap. XVI, P.P.C. [Ss.299 - 338H] to other provision was not alteration of findings---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing thereon, as a result of which one person died at the spot, whereas two persons sustained injuries---Trial Court charged the accused persons under Ss. 302, 324, 148 & 149, P.P.C.---Trial Court found the accused persons guilty of committing qatl-i-khata of deceased and were convicted under Ss. 319, 337-H(1) & 149, P.P.C.---Complainant had contended that conviction and sentence awarded to the accused persons under the wrong provisions of Ss. 319 & 337-H(1) P.P.C., which should be corrected and rectified in the manner that the accused be convicted under Ss. 302(b), 324 & 34, P.P.C.---Validity---Record showed that present case was not a case of retrial but rewriting of judgment---Appellate Court, when dealing with the appeal against conviction, could alter a conviction under S.423, Cr.P.C. but subject to conditions that altered conviction should not be such which could not have been recorded by the Trial Court---Provisions of S. 423(1)(b)(3), Cr.P.C. provided that by such alteration, sentence could not be enhanced---Court had no power, in circumstances, to alter the finding of conviction under S. 319, P.P.C. into 302(b), P.P.C. while disposing of appeal preferred against conviction---If offender was punished under one of the provisions of Chap. XVI, P.P.C., its convertion to other provision was not alteration of findings but it would amount to reversal of findings which essentially had entirely different features for which the Court was debarred in view of provisions of S. 439-4(a), Cr.P.C.---Only appellate court had been conferred power to reverse the findings of acquittal under S.423(1)(a), Cr.P.C.---Appeal filed by the complainant was allowed by setting aside the impugned judgment and in view of S. 423(1)(b), Cr.P.C., case was remanded to the Trial Court to rewrite the judgment in accordance with law after hearing both the parties.
Shahmand and 6 others v. State 1991 PCr.LJ 833; Muhammad Shafi and 4 others v. State 1974 SCMR 289; Muhammad Sadiq v. Lal Muhammad 1968 PCr.LJ 637; Allah Rakhio Khan v. Muhkam Din and others 1997 PCr.LJ 14; Farrukh Sayyar and 2 others v. Chairman NAB Islamabad and others 2014 SCMR 1; Sahib Khan v. State 1997 SCMR 871; PLD 2007 SC 237 and 1996 PCr.LJ 1683 rel.
Syed Zahid Hussain Bukhari, Ms. Khalida Parveen and Sardar Khurram Latif Khan Khosa for Appellants.
Kazim Ali Malik for the Complainant.
Humayoun Aslam, Deputy Prosecutor General for the State.
2018 Y L R 1084
[Lahore (Multan Bench)]
Before Raja Shahid Mehmood Abbasi and Asjad Javaid Ghural, JJ
KASHIF NAWAZ and others---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No.663 and Writ Petition No.12872 of 2016, heard on 3rd October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 324, 427, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Charge against the accused persons was that they demanded Bhatta from the complainant and also made firing upon him---Record showed that incident of firing shot at the car being driven by the complainant had taken place at 10.00 p.m. on 29.12.2014 and the case was registered on the same night against two unknown persons---Admittedly, it was a dark night occurrence and no source of light had been given in the un-scaled site plan---Both the accused persons were arrested on a tip-off and were implicated in the present case subsequently---Accused were arrested by the SHO on a tip-off near hospital being suspected persons but no detail of nature of being suspected or material could be brought on record---Accused was admittedly a practicing MBBS doctor by profession and co-accused was admittedly his friend---Presence of both the accused inside or outside the hospital was quite natural and could not be termed suspicious in any capacity whatsoever---Mode and manner of the accused's implication, in the present case, indicated something else behind the scene, which was suppressed by the prosecution for the reasons best known to them---Record transpired that identification parade of the accused persons was conducted on 12.1.2015 under the supervision of Judicial Magistrate---During test identification parade, the accused were identified by the complainant and a witness, but without assigning any role played by them during the occurrence---Identification parade so held was a joint one conducted in one go in one row of multiple dummies, whereas the practice of joint test identification parade in one go could not be relied upon---Prosecution had claimed that the accused persons had sent a threat-note through Courier Service to the complainant claiming that they had demanded Bhatta of Rs. 20,00,000/- from the complainant as price of his life---Said piece of writing was taken into possession by SHO, who also obtained sealed specimen hand-writings of both the accused through Judicial Magistrate---Station House Officer handed over the said writing and specimen to Moharrir for its onward transmission to the office of handwriting expert for comparison with the threat-note---Moharrir transmitted the same to the office of Forensic Science Laboratory through police official on 20.3.2015---Report of Forensic Science Laboratory was received with the result of probability of matching with the hand-writing of accused, thus the same could not be connected with the accused with certainty---Prosecution had withheld police official, who had deposited the sealed specimen writing in the office of Forensic Science Laboratory---Said police official had not been even cited as witness in the relevant column of the report under S. 173 Cr.P.C.---Report of Forensic Science Laboratory was silent with regard to the name of the police official, who had deposited the sample specimen in the said office---Circumstances established that the present case was replete with doubts and the prosecution had failed to prove the guilt against the accused beyond any shadow of doubt and it was a case of no evidence---Appeal was allowed and the accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 324, 427, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Weapon of offence (pistol) along with three live bullets was shown to have been affected at the instance of accused---Said pistol was sent to the office of Forensic Science Laboratory through police official for its comparison with the crime empties, already secured by Investigating Officer from the crime scene---Said police official had neither been produced nor had been cited as witness in the report under S.173, Cr.P.C.---Positive report of Forensic Science Laboratory did not contain the name of official who deposited the same---Prosecution evidence was silent with regard to the name of said official and the date of its submission in the said office---Report of Forensic Science Laboratory showed that the parcel contained empties was submitted in the office of Forensic Science Laboratory on 17.2.2015 after one month and twenty days of the occurrence, whereas the crime weapon was received in the said office on 20.2.2015 just fifteen days of its recovery from accused---Empties, in circumstances, seemed to have been maneuvered by the prosecution after arrest and recovery of weapon of offence from the accused just to procure favourable report---Recovery of weapon of offence at the instance of the accused was inconsequential in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 324, 427, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Criminal Procedure Code (V of 1898), S.342---Specific plea taken by accused in his statement recorded under S.342, Cr.P.C.---Accused had stated that he had been falsely implicated in the case, because the complainant was President of Pakistan Medical Association and he being young-doctor and an active prolific of Young Doctors Association had some differences with Pakistan Medical Association---Co-accused had stated that he being friend and supporter of accused, had been falsely implicated in the case---Effect---Accused had neither appeared under section 340(2), Cr.P.C. nor had he produced any witness to show his designation nor nature of his membership with the Young Doctor's Association nor the nature of his differences with the Pakistan Medical Association---Circumstances established that defence version taken by the accused persons was vaguely formulated, which was straightaway brushed aside being bald and afterthought assertion.
James Joseph for Appellant.
Khalid Ashraf Khan and Rana Muhammad Nadeem Kanju for Petitioner.
Malik Muhammad Riaz Saghla Deputy Prosecutor General for the State.
Saleem SI and Tanveer Awan, ASI for the State.
2018 Y L R 1105
[Lahore]
Before Qazi Muhammad Amin Ahmed and Sardar Ahmed Naeem, JJ
ZAFAR IQBAL alias IQBAL and 3 others---Appellants
Versus
The STATE and another---Respondents
Criminal Appeal No. 2150, Criminal Revision No. 1251 and Murder Reference No.522 of 2010, heard on 9th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 460, 148, 149 & 120-B---Qatl-i-amd, persons jointly concerned in lurking house-trespass or house-breaking by night punishable for qatl or hurt caused by one of them, rioting armed with deadly weapon, unlawful assembly, criminal conspiracy---Appreciation of evidence---Benefit of doubt---Prosecution case was that five unknown masked assailants, variously armed, entered into the house of complainant, made firing upon family members of the complainant, due to which, husband and two sons of complainant died at the spot---No motive was cited in the crime report, however, occurrence was committed on account of a preconcert conspiracy---Complainant had stated in the witness box that after recording of complaint, her daughter and father went to bring a doctor when they once again came across the accused without masks along with sixth accused---Said sixth accused was standing with a pistol in the lane---Circumstances suggested that it was inconceivable as to why the two witnesses would go out to fetch a doctor when all the deceased were allegedly had succumbed to the injuries at the spot---After arrival of police at the spot, sixth accused would have remained present outside in the lane with a pistol in his hand, which was again difficult to believe---Prosecution witness deposed that he and other witness, given up, had seen the assailants---Record revealed that emergence of the said witnesses at the crime scene was a coincidence which seldom occurred---Circumstances suggested that there was no occasion for the accused persons to expose their identity to the witnesses when according to the prosecution, they had committed the crime surreptitiously, and thus, claimed by witness that they had conversation with the accused, required a pinch of salt---Witness had claimed to have heard the hue and cry and, thus, attracted to the crime scene---Said witness was related to the complainant as well as her father and the tenor of testimony suggested that if at all believed that he had seen the accused before arrival of police, he would have disclosed it to complainant---Said facts would have found mention in complaint---Entire exercise appeared to have been carried out much late in the day and that hypothesis was further reinforced by the brief facts of the case recorded in inquest reports, wherein unknown assailants conspicuously appeared to have committed the crime---Entire edifice of accused's implication was on the basis of supplementary statement---Said statements essentially fell within the contemplation of S. 161, Cr.P.C. and as such could neither be equated with the FIR nor read in extension thereof besides being seemingly recorded not at a point of time mentioned therein as details thereof did not reflect either in the complaint or in the inquest reports prepared on their basis---Explanation in that respect furnished by complainant, her daughter and father were far from being plausible and same was the case with the statement of other witness for the reason that accused persons after committing murder of three family members, would not stay outside the venue to present themselves to the witnesses to identify them, once they had accomplished the task, that too, with masked faces---Circumstances established that prosecution case was fraught with doubts, benefit of which would be extended to the accused persons---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 460, 148, 149 & 120-B---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd---Appreciation of evidence---Disclosure by accused---Admissibility---Statement of accused made in the custody of police---Effect---Accused pointing out the place of occurrence while in police custody, was not a "disclosure" within the contemplation of Art. 40 Qanun-e-Shahadat, 1984 and thus could not be admitted in evidence to their detriment.
(c) Criminal trial---
----Charge---Scope---Charge would only sustain itself on the strength of evidentiary certainty---Suspicions and moral certainty, no matter howsoever strong or well-placed could not derive home the charge in the absence of legal evidence.
Muhammad Akram Qureshi, Rai Bashir Ahmad Kharal and Muhammad Ali Kathana for Appellants.
Azam Nazeer Tarar, Suleman Haider Hashmi and Muhammad Sajid Tarar for the Complainant.
Ch. Zubair Ahmad Farooq, Addl: Prosecutor General, Punjab for the State.
2018 Y L R 1137
[Lahore (Multan Bench)]
Before Raja Shahid Mehmood Abbasi and Asjad Javaid Ghural, JJ
AMIR GHULAM alias CHORRA---Appellant
Versus
The STATE and others---Respondents
Criminal Appeal No.978 of 2011, heard on 17th October, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(b)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant/Police Officer received spy information that two persons/accused were busy in the sale of narcotics, whereupon he conducted raid at the concerned place---Acquitted accused was apprehended at the spot whereas the accused succeeded to flee away while throwing a shopping bag containing 350-grams charas, which was taken into possession---Sample of 10-grams was separated from the recovered charas---Record showed that the complainant and the recovery witness being members of the raiding party made unanimous and consistent statement before the Trial Court, to the effect that the raid was conducted on spy information and on pointation of the spy informer---Acquitted co-accused was arrested on the spot whereas accused succeeded to run away while throwing the shopper bag contained 350-grams charas---Accused was arrested subsequently after about twenty one days---Prosecution had claimed that the spy informer had told the names of the accused and his co-accused being busy in selling narcotic substance---Astonishingly, the raiding party consisting of well-prepared, trained and armed police officials with the conscious knowledge of the consequences of their raid, could not arrest the accused from the populated area in the day light---Spy informer had not been produced before the Trial Court or arrayed as a witness in the present case to substantiate the prosecution's claim that he had disclosed the names of both the accused to the complainant---In absence of statement of spy informer, the source with regard to the names of the accused persons could not be established especially when the complainant had no previous acquaintance with the accused persons---Admittedly, accused was not apprehended at the spot and his name was disclosed by the spy informer, who had not been produced by the prosecution---Record revealed that Trial Court had acquitted co-accused, who was apprehended at the spot, by disbelieving the prosecution evidence to his extent---Circumstances established that prosecution had failed to prove its case against the accused beyond a reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recoded by the Trial Court.
(b) Criminal trial---
----Evidence of eye-witnesses, reliance on---Scope---If co-accused having identical role on the same set of witnesses had been acquitted of the charge being disbelieved, the same could not be relied upon to the extent of remaining accused persons.
Shahbaz v. The State 2016 SCMR 1763 rel.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(b)---Possession of narcotics---Appreciation of evidence---Non-safe custody of recovered substance---Effect---Prosecution case was that the accused succeeded to flee away while throwing a shopping bag containing 350-grams of charas, which was taken into possession---Out of the said contraband item 10-grams was separated for chemical analysis---Report of Chemical Examiner showed the name of forwarding officer as an Excise and Taxation Officer, who had nothing to do with the same---Excise and Taxation Officer had been intruded in the present case without any justification, who was neither member of the raiding party nor representative of the police station concerned---Excise and Taxation Officer, in circumstances could not be linked with the recovered contraband substance and its sample, which created serious doubt in the veracity of prosecution case with regard to the question of safe custody of the recovered contraband substance---Safe custody as well as safe transmission of the separated sample to the office of Chemical Examiner had not been established by the prosecution in circumstances.
Muhammad Abbas v. The State 2006 YLR 2378 rel.
Sabir Hussain Shah for Appellant.
Muhammad Ali Shahab, Deputy Prosecutor General for the State.
2018 Y L R 1162
[Lahore]
Before Sardar Muhammad Shamim Khan, J
MUHAMMAD SAJJAD QAMAR---Petitioner
Versus
The STATE and others---Respondents
Crl. Misc. No.133760-B of 2018, decided on 28th February, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd, rioting, common object---Bail, refusal of---Accused was nominated in the FIR---Specific allegation against accused was that he inflicted burst of Kalashnikov on the deceased causing serious injuries, which caused his death---Ocular account furnished by the prosecution qua the allegation against accused, found corroboration from the postmortem examination report of the deceased---Accused, during investigation, was declared innocent by the Police simply on the basis of his travelling history to abroad---According to the findings of Investigating Officer, accused had gone abroad when the alleged occurrence took place---While forming said opinion, Police did not record the statement of the concerned officials of the Emigration Department from where accused made departure from Pakistan and thereafter came back to Pakistan---No evidence was available on record that Investigating Officer verified the travelling tickets of accused from the concerned officials---Mere opinion of the Police without collecting any cogent evidence, could not be taken into consideration at the time of disposal of bail petition---Only Trial Court was competent to decide the same after recording evidence of the parties---Accused remained absconder for a period of more than four years---Offence alleged against accused, came within the purview of prohibitory clause of S.497, Cr.P.C.---Prima facie, sufficient incriminating material was available on record connecting accused with the commission of occurrence---Accused, in circumstances, was not entitled to the concession of bail on the basis of plea of alibi accepted by the Police.
Asghar Ali Gill for Petitioner.
Humayoun Aslam D.P.G. and Naeem ASI with record for the State.
2018 Y L R 1171
[Lahore]
Before Qazi Muhammad Amin Ahmed, J
MUHAMMAD NASEER---Petitioner
Versus
DISTRICT POLICE OFFICER, SIALKOT and 2 others---Respondents
Crl. Misc. No.115355-H of 2017, decided on 7th December, 2017.
Employment of Children Act (V of 1991)---
----Ss. 3 & 11---Penal Code (XLV of 1860), S. 374---Criminal Procedure Code (V of 1898), Ss. 100 & 561-A---Bonded Labour System (Abolition) Act (III of 1992), S. 2(e)---Inherent jurisdiction of High Court---Child employment---Wrongly confined person---Recovery---Petitioner sought indulgence of High Court for recovery of his wife and niece aged 11 years allegedly placed under restraint by respondent with whom she was working as housemaid---Validity---Acquiescence of child could not be construed or equated by any stretch of imagination with his willingness to drudge on in an alien household---All those, including parents as well as facilitators were equally culpable to bring child in such a vulnerable situation---High Court directed the police to locate minor girl from wherever she was and proceed further as per disclosure strictly in accordance with law---Petition was disposed of accordingly.
Malik Muhammad Shahbaz Awan for Petitioner.
2018 Y L R 1181
[Lahore]
Before Qazi Muhammad Amin Ahmed and Sardar Ahmad Naeem, JJ
REHMAT ALI alias REHMA and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos.60-J, 59-J, 506 of 2011, Criminal Revision No.335 of 2011, Criminal Appeal No.2200 of 2015 and Murder Reference No.186 of 2011, heard on 17th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324, 109, 419, 420, 427, 201, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, cheating by personation, cheating and dishonestly inducing delivery of property, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant party coming from a function on a jeep driven by complainant was intercepted by the accused party, who were on a tractor trolley, opened fire hitting the said jeep from front, rear side and on left/right doors---Front and rear screen of the jeep were broken and occurrence was completed inside the jeep, as a result of which, three members of the complainant party died while four persons sustained injuries---Ocular account of the occurrence was furnished by three witnesses including complainant---Ocular testimony was not inspiring confidence as minute details of the occurrence were given by the witnesses---Record showed that tractor trolley in question was not taken into possession from any of the accused persons, but was recovered from a workshop---No blood was taken into possession from the jeep---Blood laid underneath cots was taken into possession whereupon deceased were laid thus place of occurrence was not convincingly established by the prosecution---Occurrence was allegedly committed within a few minutes, and it was humanly impossible to provide minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same---Such description would show that prosecution had tried to rope accused persons---Lodging of FIR with the minutest details of the case ruled out the possibility of truthfulness, and narratives of the FIR suggested the exaggeration and improvements made by the eye-witnesses---Complainant sustained injuries during the occurrence, was sent to the hospital by his sons on their car, but neither said car was produced during the investigation nor taken into possession---Complainant claimed to have sustained a firearm injury on his forehead, but medico-legal report showed that injury was caused by blunt weapon---Another injured in his statement recorded under S.161, Cr.P.C. mentioned three injuries, while his medico-legal report showed that he sustained fifteen injuries---Said aspect of the case showed that there was conflict between the ocular and the medical evidence---Complainant allegedly had reported the incident to police prior to his moving to the hospital, but there was no plausible explanation as to why the injured were not shifted to hospital by police and how did the sons of the complainant emerge at the crime scene---Jeep then driven by the complainant had fire shots/marks on its different sides but when the case property was produced during trial, no such fire mark was there and the complainant explained that he got repaired the said jeep, meanwhile---No seat, seat cover or foot mat laid inside the jeep were taken into possession during the investigation---Place of occurrence was a thoroughfare, but nobody had witnessed the occurrence as deposed by the complainant during the investigation---Undeniably, four accused were brothers while their co-accused were from the same brotherhood---Previous enmity existed between the parties regarding murder of acquitted accused---Criminal cases were registered against the complainant party, thus it was established on the record that both the parties were inimical to each other---All the eye-witnesses were inimical towards the accused persons---Record showed that there was no evidence to provide independent corroboration to their statements---In absence of any corroboration, reliance could not be placed on the oral statements of the eye-witnesses alone---Nothing was available on record to establish as to who was damaged or harmed with the act of which accused person---Record revealed that seven co-accused were acquitted who actively participated in the occurrence---Allegedly person closed to the victim would have been hurt or injured, but the eye-witnesses and sons of complainant did not receive a scratch during the incident and assailants would not have spared them---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Muhammad Saleem v. The State 2010 SCMR 374 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324, 109, 419, 420, 427, 201, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, cheating by personation, cheating and dishonestly inducing delivery of property, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Medical evidence itself could never be primary source of evidence for the crime---Medical evidence was only corroborative which could confirm the ocular evidence with regard to the seat and nature of injury and kind of weapon used in the occurrence---Medical evidence could not connect the accused with the commission of offence.
Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; Sardar Baig v. The State 1978 PCr.LJ 690; Gul Nawab Khan v. The State PLD 1980 Pesh. 193; Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.
(c) Criminal trial---
----Motive---Scope---Motive was a double-edged weapon---If the accused could have motive to commit crime, eye-witnesses could falsely implicate the accused.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324, 109, 419, 420, 427, 201, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, cheating by personation, cheating and dishonestly inducing delivery of property, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapons of offence from accused and empties---Reliance---Scope---Record showed that 222-bore rifle, 12-bore pump action, 30-bore pistol, rifle 44-bore and 12-bore gun were recovered from the houses of the accused persons---Said recoveries would not support the prosecution as no evidence was produced to establish that the places of recovery were in the exclusive possession of the accused persons nor that the houses being locked and who was occupying those houses at the time of recovery and who was in possession of the keys and how they were unlocked---Investigating Officer took crime empties into possession from the crime scene, but the same were not mentioned in the inquest report---Such recoveries could not be relied in circumstances.
Muhammad Asif v. The State 2017 SCMR 486 rel.
(e) Criminal trial---
----Witness---Evidence of eye-witnesses, reliance on---Scope---If the eye-witnesses produced by the prosecution were disbelieved to the extent of some accused with specific attribution, then the said eye-witnesses could not be relied upon for convicting the other accused attributed similar role, without independent corroboration.
Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Shahbaz v. The State 2016 SCMR 1763 and Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.
(f) Criminal trial---
----Benefit of doubt---Principle---Single circumstance, which created doubt regarding the prosecution case, would be sufficient to extend benefit to the accused.
Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.
(g) Criminal Procedure Code (V of 1898)---
----Ss. 410 & 417---"Appeal against acquittal" and "appeal against conviction"---Parameters---Appeal against conviction would be different and distinguishable from appeal against acquittal, because presumption of double innocence was attached in the case of "appeal against acquittal".
Haji Riaz-ud-Din v. Muhammad Iqbal and others 2001 MLD 830 rel.
(h) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Interference---Scope---If the accused was acquitted of the charge by court of competent jurisdiction, double presumption of innocence would be attached to its order---Acquittal order could not be disturbed/interfered with by superior court unless the impugned order was shown to be capricious and fanciful---Appreciation of evidence in appeal against acquittal was stringent and presumption of innocence was doubled and multiplied after a finding of not guilty recorded by competent court---Judgment of acquittal would not be disturbed even though second opinion might be reasonably possible.
Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 rel.
Muhammad Shaukat, Nighat Saeed Mughal and Usman Naseem, Defence Counsel for Appellants (in Criminal Appeal No.60-J of 2011).
Ghulam Murtaza for Appellants (in Criminal Appeal No.59-J of 2011).
Muhammad Waqas Anwar, Deputy Prosecutor General for the State.
Syed Zahid Hussain Bokhari and Ali Muhammad Zahid for the Complainant.
Syed Zahid Hussain Bukhari and Ali Muhammad Zahid for Appellants (in Criminal Appeals Nos.506 of 2011, 2200 of 2015 and Criminal Revision No.335 of 2011).
Riaz Ahmad for Respondents (in Criminal Appeal No.506 of 2011).
Babar Siddique Mughal for Respondent (in Criminal Appeal No.506 of 2011).
2018 Y L R 1226
[Lahore (Multan Bench)]
Before Muhammad Ali, J
Haji MUHAMMAD AKRAM---Petitioner
Versus
The STATE and others---Respondents
Criminal Miscellaneous No.3372-B of 2017, decided on 29th August, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), Ss. 324, 336, 337 A(i) & 34--- Attempt to commit qatl-i-amd, Itlaf-i-salahiyyat-i-udw, common intention---Bail, refusal of---Medical ground---Nature of disease---Common/life threatening disease--- Scope--- Statutory ground---Scope---Head injuries causing the victim dysphasia (inability to speak)---Effect of delay---Accused moved bail application claiming fresh grounds on statutory as well as medical reasons being patient of heart and diabetes--- Validity--- Accused was suffering from common diseases which could conveniently be treated in jail hospital and were not life threatening which could entitle the accused for grant of bail on such ground---Medical report of the accused must show that his treatment in jail was not possible at all or that his condition was such that his further detention was threatening to his life or he was suffering from some contagious or transmissible disease---In absence of any of said conditions, bail on medical ground could not be granted---Record revealed that the witnesses on most of the dates were present but defence did not proceed with the matter and hearing kept on postponing on the asking of accused or his counsel, resulting in causing delay in the conclusion of the matter---Where adjournments were sought and the witnesses for prosecution were not cross-examined for no justifiable reason, such conduct of the accused seeking adjournments could be taken note of and bail could be refused even after lapse of statutory period---Head injuries to the victim were attributed to the accused which were caused in desperate manner--- Offence under S.336, P.P.C. was added during the investigation---Accused was nominated in the FIR with specific role of causing repeated hatchet blow on the head of the victim-Recovery of the crime weapon had been effected from the accused which connected him with the commission of offence---Offences with which the accused was charged fell within the prohibitory clause of S.497, Cr.P.C.---No case for grant of bail was made out in circumstances.
Muhammad Arshad v. The State and another 1997 SCMR 1275; Mian Nazir Ahmed v. The State 2016 SCMR 1536; Baber Hussain v. The State and others 2016 SCMR 1538 and Abdur Rashid v. The State 1998 SCMR 897 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Medical ground---Scope---Conditions for grant of bail on the medical ground---Scope--- Accused was suffering from common diseases which could conveniently be treated in jail hospital and the said diseases were not life threatening which could entitle the accused for grant of bail on such ground---Medical report of the accused must show that his treatment in jail was not possible at all or that his condition was such that his further detention was threatening to his life or he was suffering from some contagious or transmissible disease---In absence of any of said conditions, bail on medical ground could not be granted.
(c) Criminal Procedure Code (V of 1898)---
----S.497---Bail---Statutory ground of delay---Scope--- Record revealed that the witnesses on most of the dates were present but defence did not proceed with the matter and hearing kept on postponing on the asking of accused or his counsel, resulting in causing delay in the conclusion of the matter---Where the adjournments were sought by the accused and the witnesses for prosecution were not cross-examined for no justifiable reason, bail could be refused even after lapse of statutory period.
Javed Iqbal Hashmi for Petitioner.
Muhammad Ibrar Ansari for the Complainant.
2018 Y L R 1234
[Lahore (Multan Bench)]
Before Muhammad Ali, J
AZHAR IQBAL---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SAHIWAL and 3 others---Respondents
W.P. No.6472 of 2016, decided on 10th May, 2017.
(a) Civil Procedure Code (V of 1908)---
----S. 115--- Revisional jurisdiction---Scope---Jurisdiction in terms of S.115, C.P.C. is primarily meant for correction of jurisdictional defect, error, material illegalities or irregularities.
(b) Administration of justice---
----Wrong provision of law---Effect---Merely mentioning wrong provision of law or making wrong headnote in heading of the application hardly makes any difference; what is required to be seen is gist and substance of the matter---Merely writing something different in headnote of the application does not change its substance and complexion.
Sohail Farooq v. Farzana Rafique and others 2017 YLR 1300 rel.
(c) Civil Procedure Code (V of 1908)---
----Ss. 11, 115 & O. XVIII, R. 2---Specific Relief Act (I of 1877), S. 12---Res Judicata, principle of---Applicability---Defendant filed application for producing additional evidence but same was dismissed by Trial Court as well as Lower Appellate Court---Subsequently defendant filed another application for same relief which was dismissed by Trial Court but Lower Appellate Court allowed in exercise of revisional jurisdiction---Validity---Principle of Res Judicata was equally applicable to miscellaneous applications filed during pendency of suit---Earlier order passed in revision petition through which same witness was not allowed to be produced in evidence had attained finality and was not challenged any further---After dismissal of earlier application there was no occasion to allow subsequent application with similar prayer in second round---Matter could not be subsequently reopened to treat same under different provision of law---High Court set aside order passed by Lower Appellate Court as same was illegal and without lawful authority---Constitutional petition was allowed in circumstances.
Mst. Iqbal Begum through her Legal Heirs v. Muhammad Akbar and 5 others 1992 CLC 232 ref.
Messrs New Rahat Engineering Works through Proprietor and 4 others v. National Bank of Pakistan and another 2003 CLD 282; Kharati and others v. Muhammad Ibrahim and others 1989 CLC 894 and Muhammad Anwar v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.
Syed Tajammal Hussain Bukhari for Petitioner.
Syed Kabeer Ahmad and Zafar Iqbal Batalwi for Respondents.
2018 Y L R 1251
[Lahore]
Before Jawad Hassan, J
MUHAMMAD KAMRAN---Petitioner
Versus
Mst. SAMERA MAJEED and others---Respondents
W.P. No.3955 of 2015, heard on 13th February, 2018.
(a) Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Dissolution of marriage on basis of 'khula'---Dower (haq-mehr), return of---Scope---Where wife obtained decree for dissolution of marriage on basis of khula, it was subject to return of dower amount and she subsequently could not claim it as of right---In case of khula, wife would have to either remit the dower amount, if she had not received it or pay back the same to the husband if she had received it.
Mst. Saeeda Javed v. Javed Iqbal and 2 others PLD 2013 Pesh. 88 ref.
(b) Family Courts Act (XXXV of 1964)---
---S. 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii) & 2(iv)---Dissolution of marriage on basis of 'khula'---Section 10(4) of the Family Courts Act, 1964 was applicable to the dissolution of marriage on basis of "khula" and not to dissolution of marriage on the grounds available to a wife under Ss. 2(ii) & 2(iv) of the Dissolution of Muslim Marriages Act, 1939.
Khalid Mahmood's case PLD 2007 Lah. 626 and Mst. Saima Irum and 3 others' case 2006 MLD 83 ref.
Ch. Muhammad Ayub for Petitioner.
Muhammad Asif Mughal for Respondents.
2018 Y L R 1262
[Lahore]
Before Shujaat Ali Khan, J
MUMTAZ AHMED---Petitioner
Versus
NAHEED AKHTAR and others---Respondents
Writ Petition No.70434 of 2017, decided on 16th March, 2018.
Qanun-e-Shahadat (10 of 1984)---
----Art. 133--- Cross-examination of witness---Reference made in judgment to statement of witness who had not been cross-examined---Effect---Material flaw in judgment---During trial only two witnesses were examined but the Trial Court and Appellate Court referred to the statement of a witness as "PW-3"; held, that a third witness did submit his affidavit in evidence but he did not appear before the court for cross-examination---If the said person did not face the rigours of cross-examination how any reference could be made to him as "PW-3"---Said fact spoke volumes about casual approach on the part of the Trial Court and Appellate Court---High Court remanded the matter to the Trial Court for decision afresh.
Shaigan Ejaz for Petitioner.
2018 Y L R 1269
[Lahore]
Before Abdul Sami Khan, J
FAISAL AHMAD---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.130519-B of 2018, decided on 22nd February, 2018.
Criminal Procedure Code (V of 1898)---
----S.497(2)---Penal Code (XLV of 1860),Ss. 302, 365, 377 & 201---Qatl-i-amd, abduction, unnatural offence and concealment of evidence---Bail, grant of---Further inquiry---Supplementary statement---Scope---Delay in recording statements of prosecution witnesses under S.161, Cr.P.C.---Effect---Record revealed that complainant involved the accused through his supplementary statement after about four days of the occurrence wherein no source of information had been mentioned as to how he came to know about the involvement of the accused---Such supplementary statement had no value in the eye of law---Investigation officer got recorded statements of prosecution witnesses under S. 161 of Cr.P.C. after seven days of occurrence---Such silence of the said witnesses had cast serious doubt about the involvement of the accused---Delayed statements of prosecution witnesses under S. 161 of Cr.P.C. had little value---Report of DNA showed that no seminal material was detected---Case called for further inquiry into the guilt of accused as envisaged under S.497(2), of Cr.P.C.---Accused was admitted to bail, in circum-stances.
Falak Sher alias Sheru v. The State 1995 SCMR 1350; Abid Ali alias Ali v. The State 2011 SCMR 161 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.
Aftab Mustafa for Petitioner.
Muhammad Irfan Zia Deputy Prosecutor General and Zulfiqar SI with record.
2018 Y L R 1282
[Lahore]
Before Abdul Sami Khan, J
SARFRAZ and 2 others---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.122644-B of 2017, decided on 6th February, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860),Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 447/511 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, hurt and common intention---Bail, grant of---Further inquiry---Vicarious liability---Common intention---Scope---Accused persons were not attributed injuries on the person of the deceased---Effect---Record revealed that although the accused persons were nominated in FIR , however, no injury on the person of the deceased was attributed to them and they had been assigned the role of causing injuries on the heads of injured ladies falling under S. 337-A(ii), P.P.C.---Vicarious liability of accused persons as well as sharing the common intention with co-accused for committing murder of deceased would be determined by the Trial Court after recording evidence---Case of accused persons called for further inquiry into their guilt as envisaged under S.497(2) of Cr.P.C---Accused persons were admitted to bail, in circumstances.
Mumtaz Hussain v. The State 1996 SCMR 1125 ref.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860),Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 447/511 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, hurt and common intention---Bail, refusal of---Nomination in FIR---Specific role attributed to the accused---Effect---Record revealed that accused was nominated in FIR with specific allegation of causing hatchet blow on left arm of the deceased---Said role assigned to the accused in FIR was borne out from the postmortem report of the deceased---Sufficient material was available against the accused as prosecution witnesses in their statements under S. 161 of Cr.P.C. had prima facie connected the accused with the case---Offences with which accused had been charged fell under the prohibitory clause of S, 497 of Cr.P.C---Bail application of accused was dismissed, in circumstances.
Liaqat Ali Malik for Petitioners.
Irfan Zia, Deputy Prosecutor General for the State and Aslam ASI with record.
2018 Y L R 1302
[Lahore]
Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ
MUKHTAR alias MOKHI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.69-J and Capital Sentence Reference No.4-T of 2013, heard on 23rd November, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21(L)---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism, absconsion---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party armed with dagger, Kalashnikovs, 223-bore guns, assaulted on the complainant party, made firing indiscriminately upon the complainant party, as a result of which three persons died---Motive for the occurrence was stated to be previous enmity between the parties---Record showed that two persons including complainant claimed to be present in the next room and witnessed the occurrence---Complainant/son of a deceased narrated the episode of the crime in his evidence before the court, but his said tenor did not synchronize with the narrative related by the witness in the crime report---Human response in a crisis situation could not be hypothesized with empirical exactitude, nonetheless, given antecedents, inter se relationship and the duration for which the occurrence lasted, made presence of complainant extremely improbable as being so closely situated, he could not evade notice by the assailants and thus, being a choice target, escaped consequences thereof---Said situation irresistibly suggested that complainant was not physically present at the crime scene---Position taken by both the eye-witnesses that they mutely witnessed the family members being slaughtered by peeping through door apertures was ludicrous to say the least---Attempts made by the complainant to bring his testimony in line with medical evidence through improvement, duly confronted, impinged upon his testimony-Seemingly, there was no occasion for eye-witness to stay overnight with the complainant party---Said witness had admitted that he resided in his house situated in village---Attempt of eye-witness to furnish a comprehensive account of the occurrence despite being confined in the adjoining room in the midst of a winter night could not be received without suspicion---Said witness had resorted to improvements to be in a unison with complainant---Source of light was yet another factor heavily militating against the prosecution case---Delayed postmortem examination during the following night commencing from 9.10 p.m. onwards admitted enough space to infer that inquest reports as well as the crime report were not prepared at points of time mentioned therein, and thus, deliberations, consultations and guesswork could not be ruled out---In the present case, two young lads and an aging old man at the fag-end of his life could not be choice targets when the accused had an axe to grind more aptly against the complainant who could have been located by the assailants without much hassle---Conviction of accused could not be maintained on the basis of a positive forensic report alone---Said circumstances inexorably pointed upon the veracity of prosecution case---Appeal was allowed and accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Criminal trial---
----Evidence---Corroboration---Principle---One weak piece of evidence could not improve upon another of like nature.
Muhammad Ahsan Bhoon and Ms. Bushra Qamar for Appellant.
Mian Abdul Quddus for the Complainant.
Muhammad Waqas Anwar, D.P.G. for the State.
2018 Y L R 1313
[Lahore]
Before Shahid Bilal Hassan, J
FARZAND ALI---Petitioner
Versus
MUHAMMAD ISHAQ---Respondent
C.R. No.888 of 2011, decided on 22nd December, 2017.
(a) Punjab Pre-emption Act (IX of 1991)---
----Ss. 13, 30 & 31---Limitation Act (IX of 1908), S. 4---Suit for possession through pre-emption---Limitation---Commencement of---Talbs, performance of---Requirements---Pre-emptor in his evidence had admitted that whole story of performing Talb-i-Muwathibat was fabricated---Possession after sale was changed and vendee was in possession on the suit land---Factum of sale through registered sale deed could not be under curtain for such a long period---Courts below had failed to appreciate evidence in true perspective---Mere sending of notice of Talb-i-Ishhad was not sufficient but service of its addressee was necessary to be proved which was lacking in the present case---Service of addressee in the present case was not affected---Talb-i-Ishhad was not proved in circumstances---Limitation for a suit to enforce a right of pre-emption was four months from the date of registration of sale deed---Presumption of truth was attached to the act of Registrar until and unless same was proved otherwise---Sale deed in the present case was registered on 03-04-2001---Limitation would start from the date of registration of sale deed instead of date of knowledge---Said limitation would end on 03-08-2001 on which date District Judiciary observed summer vacation---Pre-emptor instituted suit on 01-09-2001 on the first opening day of the Courts after summer vacation which was within time---Pre-emptor had not proved performance of Talbs---Impugned judgments and decrees passed by the Courts below suffered from mis-reading and non-reading of evidence which were set aside---Suit filed by the plaintiff was dismissed---Revision was allowed in circumstances.
[Case law referred].
(b) Civil Procedure Code (V of 1908)---
----S. 115--- Revision--- Scope--- When concurrent findings were result of mis-reading and non-reading of evidence or material irregularity then same could be interfered with in exercise of supervisory revisional jurisdiction.
(c) Limitation---
----Matter of limitation could not be left to the pleadings of the parties but it was duty of the Court to consider the same---Question of limitation being mandatory could not be waived and even if waived could be taken up by the party waiving it and the Court---Exception to said principle was that defendant in exceptional cases would be barred from raising plea of limitation on account of estoppel arising from his conduct when said plea involved an inquiry of facts.
(d) Administration of justice---
----When law required a thing to be done in a particular manner then it would be nullity in the eyes of law if the same was not performed in the very prescribed manner.
Sheikh Usman Karim ud Din and Ch. Amir Rehman for Petitioner.
2018 Y L R 1332
[Lahore (Multan Bench)]
Before Abdul Sami Khan, J
NOOR MUHAMMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.867-J of 2012, decided on 3rd May, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd--- Appreciation of evidence---Delay in lodging FIR---Delay in conducting of post-mortem---Preliminary investigation before lodging FIR---Effect---Occurrence in the case took place at 6.00 p.m.---First Information Report was shown to have been registered on the same day at 6.40 p.m.---Postmortem examination on the dead body of the deceased had been conducted on the next day at 9.30 a.m.---Record showed that there was a delay of fifteen and half hours in conducting the post-mortem examination of the dead body---Medical Officer, who conducted post-mortem deposed that probable duration between injury and death was 10 to 15 minutes and 24 hours between death and post-mortem examination---Such circumstances showed that occurrence had not taken place at 6.00 p.m. on that day---Prosecution witness had admitted that the dead body was sent to police station prior to postmortem which remained there for about half an hour---Investigating Officer deposed that dead body was directly sent to mortuary for postmortem from the place of occurrence---Said factor established that delay in conducting postmortem examination was due to the fact that the dead body was taken to the police station from the place of occurrence and matter had been reported to the police after due deliberations and consultations after procuring the attendance of complainant and eye-witnesses---Held, in such eventualities, it could be said that FIR was not lodged at the date and time mentioned therein and it was got recorded after preliminary investigation---First Information Report thus could not be used as a corroborative piece of evidence.
Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused inflicted three blows at his wife with chobi pawa and she died at the spot---Motive behind the occurrence was that accused was addicted to narcotics and used to demand amount from his wife and she made a complaint to her brother and due to that grudge, accused committed her murder---Ocular account of the occurrence had been furnished by the witnesses including complainant---Record showed that witness of ocular account committed murder of sister of complainant, however, said witness had married his sister to the brother of complainant in lieu of murder of his sister---Presence of said witness at the place of occurrence in the house of accused as well as deceased was unbelievable---Person who earlier murdered the sister of complainant would not go in the house of accused as well as deceased in the presence of such background---Complainant had mentioned in the FIR, that the accused took chobi pawa which was lying beside him and inflicted three blows on the head of deceased---Complainant, while appearing as witness contradicted the contents of FIR and had deposed that accused took bala and gave three blows with it on the head of deceased---Said contradiction showed that presence of witnesses at the spot at the time of occurrence was not free from doubts---Medical Officer had stated that all the injuries on the head of deceased were caused by sharp edge weapon which showed that there was contradictions between ocular account and medical evidence, suggesting that eye-witnesses were not present at the place of occurrence at the relevant time---Unnatural conduct shown by the witnesses by not apprehending the accused at the spot also proved that the witnesses were not present at the spot at the time of occurrence---Admittedly, occurrence had taken place in thickly populated area but no inhabitant from the locality had come forward to support the prosecution case---Contradictions were found in the statements of both the eye-witnesses on material points---Eye-witnesses were interested witnesses and their statements being not worthy of reliance and confidence inspiring could not be outrightly accepted without any corroboration by some other evidence, which was lacking in the present case---Record transpired that complainant and witness were living nearby the place of occurrence---Said witnesses were residing at considerable distance from the place of occurrence and they had not given any plausible explanation or reason for their visit to the house of accused on the relevant day---Such circumstances had created doubt in the prosecution case, benefit of which, would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Supporting evidence---Medical evidence might confirm the ocular evidence with regard to the seat of injuries, nature of injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of offence.
Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence--- Reliance--- Scope--- Record showed that chobi pawa was shown to have been recovered from the accused---Complaint and FIR revealed that after the occurrence, the accused fled away along with weapon of offence---Chobi pawa was recovered after six days of the occurrence from the house of accused; record transpired that accused was arrested by the Investigating Officer from another place (not his house)---As to how the weapon of offence was found in the house of accused at the time of its recovery was not understandable---Such facts showed that the weapon of offence chobi pawa was planted upon the accused in order to strengthen the prosecution case.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Prosecution had alleged that motive for the occurrence was that accused was addict and he used to ask the deceased (wife) to give money for narcotics and she complained to her brother, the complainant and due to that grudge, accused committed the murder of deceased---Complainant did not state that the accused was addict and stated that the accused used to beat his wife and caused agony for her---Witness also did not depose anything that the accused was addict---Admittedly, no case of narcotics was registered against the accused---Prosecution was bound to prove motive through confidence inspiring evidence---Prosecution had failed to prove the motive in circumstances.
(f) Criminal trial---
----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in the prosecution case was enough to acquit the accused.
Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel.
Ch. Salamat Ali Wains for Appellant at state expenses.
Adnan Latif, Deputy Prosecutor General for the State.
Complainant in person.
2018 Y L R 1353
[Lahore]
Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ
MUHAMMAD ASHFAQ---Appellant
Versus
The STATE and another---Respondents
Criminal Appeals Nos. 967, 995 of 2011 and Criminal Revision No.299 of 2012, heard on 6th December, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 460---Qatl-i-amd, persons jointly concerned in lurking house-trespass or house-breaking by night punishable for qatl or hurt caused by one of them---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Charge against accused was that he along with co-accused persons committed murder of the father of the complainant---Eye-witnesses including complainant had identified the accused and one of the co-accused at the time of occurrence---Ocular account of the occurrence had been furnished by the witnesses including complainant---Eye-witnesses had stated that on the relevant night, accused along with co-accused and acquitted accused persons trespassed in the house and his father was done to death as a result of fire shot made by co-accused---Said co-accused had already been done to death in a police encounter and he was no more in the case---Complainant in his statement recorded under S.154, Cr.P.C. and before the court had not disclosed about the availability of any source of light at the place of occurrence on the night of occurrence, through which he identified the accused---Same was the position of eye-witness, who had not disclosed the availability of any such source of light through which the accused was identified---Availability of source of light at the place of occurrence was not mentioned in the site plan---Record was silent as to how the eye-witnesses had identified the accused in the darkness of night---Presence of co-accused at the spot was shown in the site plan---Role ascribed by complainant and eye-witness to accused that he had grasped deceased when co-accused made straight fire shot with 12-bore gun on the right side of abdomen of the deceased itself raised doubt about his involvement---Fist Information Report showed that assailants were unable to snatch anything from the deceased as he had no money with him at the time of occurrence---Complainant introduced new facts and stated that the accused snatched money which was in possession of the deceased---Complainant had departed from his previous version and stated that accused had lifted the rifle from the room, but no such specific allegation was levelled in the FIR---Complainant stated in his examination-in-chief that deceased captured accused by calling him as his maternal nephew, but said fact was missing in FIR---Eye-witness had just followed the statement of the complainant and stated nothing more---Record transpired that the complainant and the eye-witness introduced new facts and had made dishonest improvements only to strengthen the prosecution case and to give heinous touch to the incident---Postmortem report of the deceased showed that he received injury on his right side of abdomen, but the fact remained that said injury was specifically attributed to co-accused, since dead---Medical evidence became immaterial to the extent of accused and acquitted co-accused---Circumstances established that ocular account had no potential to bring home the guilt of the accused for commission of the occurrence---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 460---Qatl-i-amd, persons jointly concerned in lurking house-trespass or house-breaking by night punishable for qatl or hurt caused by one of them---Appreciation of evidence---Recovery of weapons of offence from accused persons---Reliance---Scope---Rifle 7-MM was shown to have been recovered from accused on 21.7.2005 and a .12 bore gun had been allegedly recovered from acquitted accused on 23.9.2006---Recoveries were made by digging earth at the brink of drain and canal, which were located on northern and western side of the village---Prosecution had claimed that 7-MM rifle was the same which was lifted by one of the accused from the room of the house and was taken away after the occurrence, but no identification memo was available on record---Complainant had not stated anything that 7-MM rifle allegedly recovered from accused actually belonged to the deceased---No allegation against acquitted accused was leveled that he was armed with .12-bore gun or he used the same at the time of occurrence---In the absence of any positive report of the Forensic Science Agency regarding the .12-bore gun allegedly recovered from acquitted accused, the same was inconsequential and could not be used against him.
(c) Criminal trial---
----Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in the prosecution case was enough to acquit the accused.
Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel.
Mian Muhammad Sikandar Hayat for Appellant (in Crl. Appeal No.967 of 2011).
Khurram Khan, Deputy Prosecutor General for the State.
Muhammad Taqi Khan for the Complainant.
Rana Ijaz Ahmad Khan for Respondents Nos. 1 and 2 (in Crl. Appeal No.995 of 2011).
2018 Y L R 1371
[Lahore]
Before Ayesha A. Malik, J
JADEED EDUCATION SERVICES through authorized person and 5 others---Petitioners
Versus
GOVERNMENT OF PUNJAB through Secretary, School Education Department and others---Respondents
W.P. No.28265 of 2017, heard on 13th March, 2018.
Punjab Procurement Regulatory Authority Act (VIII of 2009)---
----S. 2(n)---Punjab Procurement Rules, 2014, R. 3---Public procurement---Scope---Punjab Curriculum and Textbook Board ("the Board")---Printing and publishing of textbooks for private schools---For the purposes of printing and publishing textbooks for government schools, the Board and the authorities invited tenders, whereas for the purposes of private schools the publishing and printing work was allocated among the publishers and printers on the basis of their strength and capacity---Petitioners, who were publishers engaged in the business of publishing and printing textbooks and were duly registered with the Board, contended that for purposes of private schools also the Board and the authorities were obligated to follow the Punjab Procurement Regulatory Authority Act, 2009 ("Act") and the Punjab Procurement Rules, 2014 ("Rules"); held, that the petitioners' relationship with the Board was contractual in nature as the quantum and price (for printing and publishing textbooks for private schools) was negotiated before settling the terms for providing textbooks---For the purposes of government schools, the 'Act' and the 'Rules' were followed as public provision was involved, however in case of private schools, the 'Act' and 'Rules' were not followed because there was no public procurement involved as the services were not financed wholly or partly out of the public fund---In terms of section 2(n) of the 'Act', public procurement meant acquisition of goods, services or rendering of works financed wholly or partly out of the Public Fund, unless excluded by the Government---In the present case, clearly there was a contractual relationship in which the petitioners negotiated the terms and conditions at which they would print and publish the textbooks for the private schools--- Since there was no element of public procurement involved, there was no obligation on the part of the Board and the authorities to call for public procurement for the purposes of private schools textbooks---Constitutional petition was dismissed in circumstances.
Sheraz Zaka for Petitioners.
Anwaar Hussain, Addl. A.G. for the State.
Shaigan Ijaz Chadhar for Respondents Nos. 2 and 3.
2018 Y L R 1377
[Lahore]
Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ
MUHAMMAD FAYYAZ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.1304 and Capital Sentence Reference No.21-T of 2013, heard on 7th November, 2017.
Penal Code (XLV of 1860)---
----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he along with co-accused committed murder of three persons including the brother of complainant by firing---Matter was reported to the police by brother of one of the deceased---Motive for the crime was string of criminal cases raging between the two sides---Ocular account of the occurrence was furnished by two witnesses---Both the witnesses were collaterals---Record showed that occurrence took place at 2.30 p.m., peak business hours, on a road surrounded by factories and deceased was accompanying the witnesses having no business to share with him---Medical evidence showed that all the deceased persons died instantaneously, while eye-witness stated that a deceased, then injured, was taken to the hospital leaving the dead bodies behind---Said position lacked confirmation, as it ran counter to the opinion furnished by the Medical Officer---Injury statements and inquest reports did not support the said position---Witnesses did not state as to how they shifted one deceased to the hospital and by whom he was pronounced dead when they left his dead body there to return back to the spot wherefrom other deceased were shifted by rescue ambulance---Normal response of the witnesses would have been to take all the deceased together to the hospital, if at all, they were there and had means for transportation whereas the needful was done by the rescue ambulance---Recovery of gun was inconsequential in view of the absence of forensic comparison not advancing the prosecution case against the accused---Absence of complainant from the witness box, for whatever reason, placed the accused in a disadvantageous position to contest his indictment, as the former, being architect of the case, had much to disclose about genesis of the case---Circumstances established that prosecution case was fraught with doubts, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court.
Buran Moazam Malik and Muhammad Azhar Choudhry and Imran Aslam Kharal for Appellants.
Muhammad Ahsan Bhoon for the Complainant.
Muhammad Zubair Khalid Choudhry, D.P.G. for the State.
2018 Y L R 1391
[Lahore]
Before Ayesha A. Malik and Jawad Hassan, JJ
CHIEF EXECUTIVE, GEPCO and 3 others---Appellants
Versus
ASGHAR ALI RANA---Respondent
Intra Court Appeal No.389 of 2015, decided on 12th June, 2017.
Constitution of Pakistan---
----Art. 199--- Electricity connection---Constitutional jurisdiction of High Court---Single Judge of High Court directed the authorities to provide electricity connection to respondent---Validity---High Court was meant to protect and enforce Fundamental Rights of citizens which were being infringed by anyone---Facility of electricity was Fundamental Right of all citizens under the Constitution and particularly when life was impossible without electricity---Respondent had applied for domestic three phase connection for his house which was his Fundamental Right---Single Judge of High Court rightly observed that to provide electricity to respondent was his fundamental right which could not be denied in any manner---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court as the same did not suffer from any illegality or jurisdictional error---Intra-court appeal was dismissed in circumstances.
Mehar Muhammad Nawaz, Ex-OG-I, Small Business Finance Corporation Multan v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 rel.
Mian Aurangzeb Mirza, Ch. Anbar Ali, Dy. Director (P&E) and Ghazanfar Abbas Rizvi, CE (P&E) GEPCO for Appellants.
Ch. Muhammad Aslam for Respondent.
2018 Y L R 1411
[Lahore]
Before Abdul Sami Khan, J
Syed MEHMOOD ALI SHAH---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.106538-B of 2017, decided on 29th November, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---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---Bail, grant of---Further inquiry---Unexplained delay of almost eight months in registration of FIR, prima facie showed deliberation and consultation---No allegation was on record of preparing forged document by the accused and only allegation was that he being a broker had arranged meeting of the complainant with co-accused, who had already received the amount from the complainant---Offences under Ss.420, 471, P.P.C., were bailable, while S.468, P.P.C., did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was previous non-convict; he was behind the bars since 10-9-2017, but his trial had not seen any fruitful progress---Investigation of the case was complete and accused was no more required for the purpose of further investigation, therefore, further incarceration of accused in jail would not serve any useful purpose---Grant of bail is a rule while its refusal is an exception in such like cases---Case of accused having become one of further inquiry, covered by subsection (2) of S.497, Cr.P.C., accused was granted bail, in circumstances.
PLD 1995 SC 34 rel.
Rana Nadeem Ahmed for Petitioner.
Ms. Tahira Parveen, D.D.P.P. for the State.
M. Irfan SI with record.
2018 Y L R 1432
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
ABDUL GHAFOOR---Petitioner
Versus
MAQBOOL AHMAD and others---Respondents
C.R. No. 1619 of 2017, decided on 11th December, 2017.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Decree, setting aside of---Conflict/Difference arising between principal and attorney---Effect---Application under S. 12(2), C.P.C. by the special attorney for setting aside of decree---Attorney, without instructions of the principal, sought withdrawal of suit--- Scope--- Attorney moved application for withdrawal of petition filed by him under S.12(2), C.P.C. stating therein that matter had been settled but the same was dismissed---Contentions of principal were that attorney had colluded with the respondents and that he wanted to establish his plea of fraud and misrepresentation--- Validity--- Difference of opinion and conflict of interest had arisen between the principal and attorney---Attorney as an agent had to act on behalf of principal and was not authorized to act beyond the powers vested in him by the principal or against his instructions---Where principal had denied the authority of the attorney to withdraw the application under S. 12(2), C.P.C. rather the principal wanted to pursue the matter himself, authority vested in the attorney would come to an end---Attorney could do all the acts on behalf of principal but power to withdraw from litigation was not on record---Principal himself appeared in the Court before the case was withdrawn and claimed that he would pursue the same and disowned the action of attorney with regard to withdrawal of case---Power of attorney was an unregistered document therefore, there was no need for another written document for its cancellation when principal himself had appeared in the Court---Trial Court had yet to determine as to on what grounds and under what circumstances matter was settled between the parties and whether principal was bound by the said settlement---Alleged settlement could only be determined by the decision of application under S. 12(2), C.P.C. on merits---Trial Court was justified to dismiss the application filed by the attorney on behalf of principal and refuse permission to withdraw the said application---Agent could not be allowed to have different and conflicting stance than the principal---No illegality, infirmity or erroneous exercise of jurisdiction had been pointed out in the impugned order---Revision was dismissed in limine.
Al-Meezan Investment Management Company v. WAPDA First Sukuk Company Ltd., Lahore PLD 2017 SC 1 rel.
(b) Principal and agent---
----Relationship---Agent had a fiduciary relationship to his principal having been entrusted with principal's property or funds---Agent could not absolve himself of his responsibility to be held accountable to his principal and could not be allowed to dispute the authority of his principal.
2018 Y L R 1464
[Lahore (Rawalpindi Bench)]
Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ
WASIM ABBAS---Petitioner
Versus
The STATE and another---Respondents
W.P. No.3367 of 2016, decided on 10th January, 2018.
Anti-Terrorism Act (XXVII of 1997)---
----Ss. 9 & 11-W---Constitution of Pakistan, Art. 199---Suspension of execution of sentence---Scope---Release of accused on bail pending appeal---Constitutional jurisdiction---Scope---Petitioner/convict contended that appeal preferred by him having not been decided within the period statutorily provided under the Anti-Terrorism Act, 1997, thus, case for his release on bail through suspension of execution of sentence stood made out---Prosecution contended that petitioner was not entitled for release as he was convicted on the charge of inciting division and disharmony in already volatile society---High Court, though, was vested with ample authority to release convict in exercise of constitutional jurisdiction, however, power of such amplitude was to be exercised sparingly with circumspection, in cases of extreme hardship---Hardship of prisoner could be quantified to deny him extenuation, however, his release on bail on account of non-disposal of appeal within the prescribed period would defeat the very purpose of the special law---Constitutional jurisdiction could not be invoked to defeat legislative intent---High Court directed the office to post the main case with a convenient dispatch---Constitutional petition was dismissed accordingly.
Civil Petition No. 1305 of 2014 ref.
Tanvir Iqbal Khan for Petitioner.
2018 Y L R 1474
[Lahore]
Before Jawad Hassan, J
ABDUL GHAFFAR---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
W.P. No.106996 of 2017, heard on 2nd April, 2018.
Civil Procedure Code (V of 1908)---
----O. XLI, R. 27---Additional evidence---Scope--- Ejectment proceedings---Respondent was landlord who filed ejectment application against petitioner which was allowed by Rent Controller---Appeal filed by petitioner was dismissed earlier thereafter on directions of High Court, application for additional evidence was also decided against him---Validity---Additional evidence could not be recorded unless provisions of O. XLI, R. 27, C.P.C. were attracted---Additional evidence could be allowed only where; (i) Trial Court had improperly refused to admit evidence which ought to have been admitted; (ii) when the appellate court required such document or witness and could not pronounce judgment without additional evidence; and (iii) when the appellate court required such evidence for any other substantial cause---No such eventuality was available as main appeal of petitioner had already been dismissed by an earlier order and High Court in remanding the order, directing Lower Appellate Court to decide application of petitioner for production of additional evidence along with main appeal---Lower Appellate Court had rightly come to the conclusion and dismissed application through a well-reasoned order---High Court declined to interfere in order passed by Lower Appellate Court as there was no illegality or perversity in same---Constitutional petition was dismissed in circumstances.
Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067; Mst. Nasreen Akhtar v. Mohsin Ali 2011 CLC 1206; Muhammad Sadiq v. Allah Ditta and 6 others 2017 CLC 1040; Salat and 15 others v. Wadi Hussain and 3 others 2014 SCR 1097; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 and Zarait Ullah Khan v. Fazal Ahmed and 29 others PLD 2004 SC (AJ&K) 35 ref.
Najaf Muzammal Khan for Petitioner.
Muhammad Khawar Kaleem for Respondents.
2018 Y L R 1503
[Lahore (Rawalpindi Bench)]
Before Ibad-ul-Rehman Lodhi, J
MUSJID HANFIA DEOBANDI MAJNOO WALI MUSJID through Mutwali and 6 others---Petitioners
Versus
AHMAD KHAN and 8 others---Respondents
Civil Revision No.998 of 2011, heard on 27th February, 2018.
Arbitration Act (X of 1940)---
----Ss. 14 & 16---Suit for declaration and injunction---Report of referee---Objections, filing of---Scope---Referee was appointed with consent of both the parties who agreed to his decision---Petitioners were aggrieved of order passed by Lower Appellate Court allowing respondents to file objections to the report filed by referee---Validity---Referee appointed with the consent of both the parties, had committed no wrong, if he associated some other persons in the process of search of truth---Statement made by such referee in shape of his report could not be termed as an award of arbitration and such statement was not open to objection by either side, as originally at the time of appointment of such referee, parties consented not only such appointment but also bound themselves not to raise any objection on final report / statement of such appointed referee---Report / statement placed / made by referee was not open to any objection---High Court set aside the order passed by Lower Appellate Court, as the Court had committed an illegality by treating statement / report of referee as award of arbitrator permitting parties to raise their objections on such award---Revision was allowed in circumstances.
Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Mst. Lalan v. Noor Muhammad and 12 others 1994 SCMR 1771; Barkat Masih v. Barkat Bibi and others 1999 YLR 1215; Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others PLD 1974 SC 139 and Haji Anwar Ali and others v. Bashir Ahmad 2002 CLC 421 ref.
Muhammad Saeed v. Mst. Shamim Akhtar and others 2010 YLR 2987 and Mst. Zanib Bibi through L.Rs. and others v. Province of Punjab through District Collector Lodhran and others 2011 CLC 1933 distinguished.
Haroon Irshad Janjua for Petitioners.
Muhammad Amir Butt for Respondents.
2018 Y L R 1642
[Lahore]
Before Jawad Hassan, J
Mst. SHAKEELA BIBI---Petitioner
Versus
DISTRICT JUDGE, OKARA and others---Respondents
W.P. No.8640 of 2012, heard on 28th March, 2018.
Family Courts Act (XXXV of 1964)---
----S. 5, Sched---Suit for recovery of dowry articles---List of dowry articles---Minor contradictions in the statement of witnesses--- Effect--- Family Court dismissed the suit on the ground that scribe and author of the receipts of dowry articles were not produced for examination but Appellate Court decreed the suit partially---Contention of husband was that wife had shifted dowry articles from his house---Validity---Family Court rejected the evidence of plaintiff-wife on the ground of variations in the price of articles and their number in the testimonies of witnesses---Said discrepancies and variations were minor and were not fatal to the case of plaintiff-wife---Husband had not denied the factum of receipt of dowry articles at the time of marriage---Plaintiff wife had admitted that she had shifted some dowry articles to the house of her uncle---Family Court had wrongly viewed that wife had failed to give full details of each item of dowry articles mentioned in the list and price of the said items---Normally, dowry articles were handed over along with the list to the parents of male spouse at the time of Rukhsati---Dowry articles mentioned in the list consisted of daily use which were generally given to the brides at the time of their marriage---No dowry article mentioned in the list was extravagate or beyond the financial status of plaintiff's parents---Plaintiff could not be non-suited on the ground of minor discrepancies in her statement---Appellate Court had rightly set aside the judgment and decree passed by the Family Court---No illegality or irregularity had been pointed out in the impugned judgment and decree passed by the Appellate Court--- Constitutional petition was dismissed in circumstances.
Zahid Janan v. Mst. Kausar Begum and 2 others 2016 YLR Note 43; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Hamid Ali v. Mst. Nabila Riaz and 2 others 2012 YLR 2693 rel.
Khadim Hussain Tahir Hashmi for Petitioner.
Ijaz Yousaf for Respondent No.3.
2018 Y L R 1652
[Lahore]
Before Shahid Mubeen, J
KALSOOM AKHTAR and 2 others---Petitioners
Versus
SARDAR MUHAMMAD through L.Rs. and others---Respondents
C.R. No.2662 of 2014, decided on 9th February, 2018.
(a) Civil Procedure Code (V of 1908)---
----O. XX, R. 13---Constitution of Pakistan, Art. 172 (1)---Administration suit--- Ownerless property--- Escheat, doctrine of---Applicability---Both the parties could not prove that disputed Ihata was in the ownership of deceased---Record revealed that said Ihata was in the ownership of Federal Government---Man could tell a lie but a document could not---Suit property should vest with the Federal Government under the principle of Escheat---Findings recorded by the Courts below to the extent of disputed Ihata were reversed---Impugned judgments and decrees to the extent of findings on other issues would remain intact---Parties would be at liberty to file an application for allotment of said Ihata and if filed the same should be decided in accordance with law by the competent authority---Revision was disposed of accordingly.
Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Nanney Khan through Attorney v. Muhammad Dawood Khan and another 2015 YLR 1652; Ghulam Rasool v. Abdul Rashid and others 2007 MLD 515; Ravi Dutt Kapur v. Deputy Commissioner/ Collector, Jhang and 9 others 1999 CLC 500 and Muhammad Sadiq v. Taj Muhammad and 2 others 1994 CLC 326 rel.
(b) Escheat, doctrine of---
----Meaning---"Escheat" signifies a reversion of property to the State in consequence of a want of any individual competent to inherit.
Black's Law Dictionary Legal Dictionary 2nd Edition rel.
Pervaiz Inayat Malik for Petitioners.
2018 Y L R 1672
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
KHALIL AHMAD---Petitioner
Versus
ATTA MUHAMMAD and others---Respondents
W.P. No.5802 of 2018, decided on 18th April, 2018.
(a) Civil Procedure Code (V of 1908)---
----O. IX, R. 13---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Ex-parte proceedings, setting aside of---Defendants moved an application for setting aside of ex-parte proceedings which was accepted concurrently---Contention of plaintiff was that absence of defendants was contumacious and they were not entitled for the relief---Validity---Application, supported by affidavit, was moved within time---Trial Court imposed costs of Rs. 3000/- while setting aside the order of proceeding ex-parte which was upheld by the revisional Court---Contention of defendants was that they had not received intimation of fixation of the case on the date when they were proceeded ex-parte---Nothing was on record to the effect that absence of defendants was contumacious---Technicalities, unless insurmountable, should not come in the way of justice and Justice should not only be done but also seen to have been done---Rules of procedure were for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice---Courts below had rightly allowed the application---No illegality or erroneous exercise of jurisdiction had been pointed out in the impugned orders---Constitutional petition was dismissed in limine.
Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154 and Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 rel.
(b) Administration of justice---
----Technicalities not to come in the way of justice.
(c) Administration of justice---
----Justice should not only be done but also seen to have been done.
2018 Y L R 1682
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
ASIF SHEHZAD---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and others---Respondents
Writ Petition No.9842 of 2017, heard on 2nd April, 2018.
Family Courts Act (XXXV of 1964)---
---S. 5, Sched. & S. 10(5)---Suit for dissolution of marriage and recovery of dower---Return of dower in case of Khula---Scope---Entry in Nikahnama---Effect---Appreciation of evidence in toto---Scope---Petitioner/ex-husband contended that respondent/ex-wife was not entitled for recovery of dower as in plaint as well as in evidence/cross-examination she had not claimed seven Marlas, house as outstanding dower--- Respondent/wife contended that two Courts below had rightly granted her dower as per entry in the Nikahnama--- Validity--- Record revealed that in the relevant paragraph of the plaint, Nikahnama and affidavits submitted in evidence, seven Marlas house had specifically been mentioned---Document as well as evidence had to be read as a whole and not in piecemeal---High Court observed that, to negate the version of respondent , petitioner could easily produce the Nikah-Registrar on his behalf to disprove the claim of petitioner that relevant entry in Nikahnama was result of interpolation and afterthought---Petitioner had failed to bring on record the evidence of witnesses of Nikahnama---Admitted document need not be proved and presumption of truth was attached to such document---When the marriage was dissolved on the basis of Khula' then the remaining dower became payable and the deferred dower, which was the liability of the husband, was to be paid to the wife to the extent of 50% in terms of S.10(5) of Family Courts Act, 1964---High Court under constitutional jurisdiction could not substitute findings of facts nor could give the opinion regarding quality or adequacy of the evidence---No illegality or infirmity having been noticed in the impugned judgments passed by the two courts below, constitutional petition was dismissed accordingly.
Mst. Shamim Javaid Zar and 3 others v. Mst. Wazir Begum and 5 others 2002 YLR 1061; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Parveen Umar and 3 others v. Sardar Hussain and 5 others 2003 YLR 3097 and Aqal Zaman v. Mst. Azad Bibi and others 2003 CLC 702 ref.
Ch. Muhammad Asif Rasheed for Petitioner.
Muhammad Irfan Wyne for Respondent No.3.
2018 Y L R 1713
[Lahore]
Before Jawad Hassan, J
SAJIDA ANWAR---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Writ Petition No.25857 of 2015, heard on 28th March, 2018.
Punjab Rent Restriction Ordinance (IV of 1959)---
----S. 13---Constitution of Pakistan, Art. 199---Ejectment petition---Concurrent findings of Courts below---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction was exercised with great care and caution in matters relating to tenancy/ejectment of tenant as the same could not be used as a substitute for an appeal---Evidence duly appreciated by the courts below could not be re-appraised on the ground that some other view was possible in constitutional jurisdiction---Appraisal of evidence was the function of courts below and if the findings were based on proper appraisal of evidence, the same could not be interfered with lightly in exercise of constitutional jurisdiction---Party approaching the High Court under Art.199 of the Constitution had to demonstrate that there was some gross misreading or non-reading of evidence or any jurisdictional defect floating on the surface of record.
Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520; Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178; Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.
Muhammad Yousaf Lurka for Petitioner.
Shamim Ahmad for Respondent No.3.
2018 Y L R 1730
[Lahore]
Before Jawad Hassan, J
Mst. SOBIA SHAHEEN---Petitioner
Versus
MUHAMMAD RIAZ and others---Respondents
Writ Petition No.6461 of 2015, heard on 16th March, 2018.
(a) Guardians and Wards Act (VIII of 1890)---
----S.25---Custody of minor---Entitlement of mother--- Scope--- Petitioner was mother of minor girl aged about 3-4 years and dispute was with regard to her custody---Application filed by father was dismissed by Guardian Court but Lower Appellate Court reversed the findings and decided the matter in favour of the father---Validity---Father, under Islamic law, was natural guardian of minors who had preferential right of custody of minor especially in the circumstances when minor was male and above age of 7 years--- In order to challenge such preferential right of father, mother was bound to establish some exceptional circumstances and to prove herself that she had preferential right over father---Minor, in the present case, was female and mother was looking after the minor ever since her birth and was maintaining her in a good environment---Cogent and confidence inspiring evidence came on record to prove that application for custody of minor was filed after fixation of maintenance allowance against her---Father was least interested in welfare of minor who had filed application for custody of minor in order to frustrate the decree for maintenance allowance---Minor was in custody of mother who was upbringing her properly and getting her educated in a private school--- Lower Appellate Court while passing judgment in question had given much focus on remarriage of mother of minor but had not given paramount consideration to welfare of minor and also ignored the fact rather misread the evidence that minor was getting education in a private school and she was also of such age where she needed much love and affection of her mother as compared to her father--- High Court set aside judgment passed by Lower Appellate Court and restored that of Guardian Court---Constitutional petition was allowed in circumstances.
Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Muhammad Ayub v. Mst. Nasim Begum and another 1996 CLC 1534; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and Sardar Hussain v. Parveen Umar PLD 2004 SC 357 rel.
(b) Guardians and Wards Act (VIII of 1890)---
----S.25---Custody of minor---Mother, right of---Scope---No substitute of mother for a minor and no one can take care of minor more than his/her mother for being first institution--- Depriving minor of the company of his/her mother creates deprivation in life of minor.
Amiad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493; Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839 and Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493 rel.
Rana Muhammad Ayub Tahir Joyya for Petitioner.
Mubeen-ud-Din Qazi for Respondents.
2018 Y L R 1813
[Lahore (Multan Bench)]
Before Abdul Rahman Aurangzeb, J
MUHAMMAD IQBAL and others---Petitioners
Versus
RAB NAWAZ and others---Respondents
Civil Revision No.422-D of 1999, heard on 13th September, 2017.
(a) Punjab Land Revenue Rules, 1968---
----R. 30---Suit for declaration---Fard Badar---Correction of clerical mistakes in the entries of revenue record---Scope---Contention of plaintiffs was that they were owners in possession of suit property---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Status of holding as owner and change of ownership did not fall in the ambit of 'correction of clerical mistake' of revenue record---Plaintiffs filed suit when no such correction of entry on record was available---Predecessor of plaintiffs malafidely sold the property which was not owned by him---Preparation of Fard Badar was not based on wrong entries by clerical mistake---Appellate Court had misread the record while giving its findings---Revenue authorities had no valid sanctity for entertaining the application during pendency of suit and change longstanding entries of ownership in the revenue record by way of Fard Badar---Ownership without any corroborating evidence merely on the basis of Fard Badar could not be allowed to be substituted---Observation rendered by the Revenue Officer on the basis of Fard Badar was liable to be revised---Plaintiffs were bound to prove ownership with regard to specific Khasra Number but they failed---Plaintiffs had to stand on their own legs to succeed and no benefit of any weakness in the case of opposite party could be extended to them---Appellate Court had set aside the judgment and decree passed by the Trial Court without referring any solid and reliable material---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.
Allah Bakhsh and others v. M.B.R. and others 1997 MLD 1779; Mst. Shireen Khanum v. Members (Revenue), Board of Revenue, Punjab, Lahore and others 2001 YLR 2387 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 rel.
(b) Punjab Land Revenue Rules, 1968---
---R. 30---Fard Badar---Scope---Fard Badar was meant for correction of clerical mistakes occurred while copying the entries from last Register Haqdaran Zamin.
Malik Javed Akhter Wains for Petitioners.
Malik Saeed Ahmad for Respondents Nos.1 to 3.
Ch. Muhammad Riaz Jahanian for Respondent No.4.
2018 Y L R 1818
[Lahore]
Before Jawad Hassan, J
MUHAMMAD MUJAHID FAREED---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
W.P. No.14617 of 2017, heard on 27th March, 2018.
Punjab Rented Premises Act (VII of 2009)---
----Ss. 15, 22 & 13(1)(f)---Ejectment of tenant---Default in payment of rent and structural change by tenant in the demised premises without consent of landlord---Effect---Oral tenancy---Scope---Eviction petition was allowed and application for leave to contest was dismissed---Contention of tenant was that he was regularly paying rent to the landlords---Validity---Demised premises was rented out to the tenant in August, 2014 through an oral agreement for two years---Tenant paid rent till April, 2015 but thereafter he became defaulter---Tenant despite expiry of period of tenancy did not vacate the premises in question nor paid rent since April, 2015---No written agreement between the parties existed with regard to construction over the rented premises---Construction over demised premises without written agreement or consent of landlord would be upon the risk and cost of tenant---Any structural change in rented premises without written consent of landlord was itself sufficient ground for eviction---Relationship of landlord and tenant had been admitted by the parties---Tenant had failed to show receipts of deposit of rent up to date---Courts below had rightly directed the tenant to vacate the demised premises and pay arrears of outstanding rent at the rate of Rs. 14000/- per month from May, 2014 till eviction---Concurrent findings recorded by the Courts below could not be interfered with in exercise of constitutional jurisdiction of High Court---No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below---Appraisal of evidence was the function of Courts below and if findings were based on proper appraisal of evidence then same could not be interfered with in exercise of constitutional jurisdiction---Constitutional petition was dismissed in circumstances.
Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520; Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178 and Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 ref.
Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520; Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah.178; Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.
Ch. Muhammad Sarwar Mohais for Petitioner.
Nisar Ahmad Butt for Respondents.
2018 Y L R 1823
[Lahore (Multan Bench)]
Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ
BARKAT ALI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.18-J and Murder Reference No. 66 of 2016, heard on 8th November, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, common object---Appreciation of evidence---Sentence, reduction in---Matter was reported to the Police within 15 minutes of the occurrence mentioning the name of accused, being sole perpetrator of the murder with details of mode and manner of the occurrence, which had excluded every hypothesis of deliberation, consultation and fabrication---Prosecution witnesses were cross-examined by the defence on all material particulars but failed to extract any material from prosecution witnesses favourable for the defence---Both the eye-witnesses had explained satisfactorily qua the time, place, mode and manner of the occurrence---Defence, could not shatter the credibility of said witnesses---Eye-witnesses, were brothers of the deceased and in such a close relationship, substitution of real culprit with an innocent person, was a rare phenomenon---Said witnesses were present at the time and place of occurrence and they had narrated what they had witnessed at the time of occurrence---Both the eye-witnesses, had furnished the reason of their accompanying the deceased at the time and place of occurrence---Autopsy on the dead body of the deceased, though had been conducted with delay of seven hours, but no element showing the possibility of deliberation, consultation and fabrication was found on the part of the Police or complainant---Plausible delay, apparently caused by the hospital authorities, would not draw any adverse inference to the prosecution's claim---Number, nature and locale of injuries, kind of weapon used and the cause of death, were exactly in consonance with the ocular account---Medical evidence was in full support to the ocular account---Prosecution, had withheld the report of Ballistic Expert, which was presumptive of the fact that, had it been produced before the Trial Court, it would have not supported the prosecution version---Alleged recovery of weapon of offence at the instance of accused would lend no corroboration to the ocular account, but non-proving the recovery of weapon of offence, being corroboratory piece of evidence, would not discard the entire prosecution case---Accused, remained fugitive for about 18 years after his release on bail---Said abscondance, would draw an adverse inference against him about his guilty conscience---Conviction of accused, was maintained, but his sentenced of death was converted into life imprisonment.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Prosecution had brought home guilt of accused to the hilt by producing cogent, convincing and confidence inspiring ocular account duly supported by medical evidence---Occurrence was day time, which was reported to the Police with sufficient promptitude---Place of occurrence was a busy bus stop surrounded by different shops, incident in issue, therefore, could not be termed as an un-witnessed or unattened occurrence---Prosecution had proved the presence of both the eye-witnesses at the place of occurrence beyond reasonable doubt---Both the prosecution witnesses remained consistent and firm on all material particulars of the incident---No material variation or contradiction existed in prosecution evidence---Single fire shot injury and accused had not repeated the same---Motive behind the occurrence remained shrouded in mystery---Recovery of weapon of offence was inconsequential---Non-proving the motive behind the occurrence by the prosecution had bearing upon the question of quantum of sentence---When a case would qualify the awarding of both sentences imprisonment for life and that of the death, the proper course for the court, as a matter of caution was to give preference to the lesser sentence---By maintaining conviction of accused, sentence of death in offence under S.302(b), P.P.C., awarded by the Trial Court, was modified to the imprisonment for life, with benefit of S.382-B, Cr.P.C.
Naveed alias Needu and others v. The State and another 2014 SCMR 1464 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.
Malik Muhammad Saleem, Muhammad Zahid Khan Khichi and Qari Abdul Karim Shahab for Appellant.
Ch. Amir Sohail Dhilon for the Complainant.
Muhammad Ali Shahab, Additional Prosecutor General for the State.
2018 Y L R 1843
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
MUHAMMAD SALEEM KHAN TAREEN---Appellant
Versus
SHAHID HAMEED and others---Respondents
Election Appeal No.4 of 2016, decided on 18th April, 2018.
Punjab Local Government Act (XVIII of 2013)---
----S. 27---Election for the seat of Chairman and Vice-Chairman Union Council---Election petition filed before issuance of notification of the returned candidates--- Competence--- Election petition before the notification of returned candidates was filed which was dismissed being not maintainable---Validity---Petitioner filed election petition and thereafter result of returned candidates was notified---Election Tribunal refused to return the election petition to the petitioner---Fresh election petition would be barred by time---Election petition filed prior to the issuance of notification could not be dismissed even after issuance of the notification---Impugned order being not sustainable in the eye of law was set aside---Matter was remanded to the Election Tribunal for decision afresh in accordance with law---Appeal was allowed in circumstances.
Sheikh Qamar-ud-Din v. District Judge/Election Court 1999 SCMR 1582 rel.
Zafarullah Khan Khakwani and Sh. Jamshaid Hayat for Appellant.
Muhammad Naeem Khan for Respondent/Election Commission of Pakistan.
2018 Y L R 1855
[Lahore (Multan Bench)]
Before Asjad Javaid Ghural, J
MUHAMMAD YOUSAF and others---Petitioners
Versus
The STATE and others---Respondents
Criminal Appeal No.703-J and Criminal Revision No.116 of 2009, heard on 28th February, 2018.
Penal Code (XLV of 1860)---
----Ss. 302, 148 & 149---Qatl-i-amd, rioting, common object---Appreciation of evidence---Benefit of doubt---Un-explained delay of two days in reporting the matter to the Police, indicated that story mentioned in the crime report was an afterthought and that case was registered with due consultation, deliberation and fabrication, which cast serious doubts on the veracity of the prosecution---All the witnesses, were closely related to the deceased and they were not residents of the place of occurrence---Presence of said witnesses at the venue of occurrence, could not be established through any other independent source of evidence---Prosecution had withheld two best witnesses to prove the presence of eye-witnesses at the venue of occurrence---None of the claimed eye-witnesses had intervened to rescue the deceased and had not received any injury during the occurrence---Presence of said eye-witnesses at the place of incident at the relevant time, was not free from doubt---Complainant as well as the eye-witnesses, while appearing in the court, had deposed somewhat different to story as narrated before the Police at the time of registration of crime report---Eye-witnesses had made material improvements in their deposition before the Trial Court, due to which the entire prosecution story and scenario had been changed and the role of each individual accused had been intermingled---Eye-witnesses could not sustain their veracity on each and every aspect of the case---Two co-accused, who were specifically attributed the role of causing head injuries to the deceased with their respective weapons, had been acquitted and no appeal had been filed against said acquittal---Role of acquitted co-accused was quite identical to that of convicted accused persons---Prosecution evidence, which was disbelieved to the extent of acquitted accused persons, could not be relied upon to the extent of remaining accused persons, in absence of any independent corroboration---Number and nature of the injuries did not coincide with the ocular version---Medical evidence, lent no support to the ocular account---Motive of occurrence though was admitted one, but same being double-edged weapon, alone was not sufficient to maintain conviction in absence of confidence inspiring ocular account and corroboration from other independent source of evidence---Dandas and hatchets recovered at the pointation of accused being not stained with blood nor tainted and having common pattern, could not be safely connected against accused persons with any degree of certainty, especially when report of Forensic Science Agency was not available on record---Prosecution having failed to prove its case against accused persons beyond reasonable shadow of doubt, conviction and sentence of accused persons, were set aside and they were acquitted of the charge extending them the benefit of doubt.
Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Liaqat Ali v. The State 2008 SCMR 95 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.
Shahbaz v. The State 2016 SCMR 1763; Tariq Perveiz v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.
Badar Raza Gilani for Appellants.
Miss Asma Khan for the Complainant.
Iftikhar-ul-Haq, Addl. Prosecutor General for the State.
2018 Y L R 1872
[Lahore]
Before Mujahid Mustaqeem Ahmed, J
Mst. SHERIFAN BIBI---Petitioner
Versus
IMAM BUKSH LALI and another---Respondents
Writ Petition No.4808 of 2015, heard on 16th May, 2017.
Civil Procedure Code (V of 1908)---
----O. VII, Rr. 11, 13, Ss. 2(2) & 12(2)---Suit for declaration---Rejection of plaint for non-payment of court-fee---Restoration of rejected plain---Scope---Trial Court rejected plaint for failure of plaintiff to affix the court-fee---Plaintiff filed application for treating the rejected plaint as fresh one which was accepted by the Trial Court but Appellate Court dismissed the said application---Application under S.12(2), C.P.C. against said order was dismissed by the Appellate Court---Validity---"Restorated plaint" after rejection could not be treated as "fresh plaint"---Two remedies were available to the petitioner to file appeal against that order, which amount to decree within meaning of S.2(2), C.P.C. or to file a fresh plaint permissible under O.VII, R.13, C.P.C.---Plaintiff was not justified to assail judgment passed in revision under S.12(2), C.P.C.---Rejection of plaint on any ground did not preclude from presenting a new plaint with regard to same cause of action---Treating restored plaint after rejection as "fresh suit" was not in line with O. VII, R. 13, C.P.C.---Orders passed by the Appellate Court were according to law---Petitioner-plaintiff had concealed facts from the court, he was not entitled to any discretionary relief---No illegality or material irregularity had been pointed out in the impugned judgments passed by the Appellate court---Constitutional petition was dismissed in circumstances.
Sirajuddin v. Muhammad Sharif PLD 1963 Kar. 883 distinguished.
Memon Educational Board v. Munawar Hussain 2001 YLR 1241 distinguished.
Sheikh Mohammed Akram Nazir for Petitioner.
Nemo for Respondents.
2018 Y L R 1894
[Lahore]
Before Amin-ud-Din Khan and Atir Mahmood, JJ
Haji KARAM HUSSAIN and 10 others---Petitioners
Versus
FEDERAL LAND COMMISSION, ISLAMABAD through Chairman and 13 others---Respondents
Writ Petition No. 12042 of 2014, heard on 30th May, 2018.
Punjab Land Reforms Rules, 1972---
----R. 12---Review---Scope---Deputy Land Commissioner resumed the land of the declarant, predecessor of petitioners, vide orders dated 2.10.1978 and 30.6.1979---On scrutiny, Head Inspection Team, Federal Land Commission, vide Inspection Note dated 31.3.1980 observed that further land of declarant was resumable in favour of government---Matter was taken up by the Land Commissioner, who vide order dated 26.8.1984 had observed that Deputy Land Commissioner might review his orders; thereafter, Deputy Land Commissioner never decided the matter---Contention of petitioners was that Deputy Land Commissioner's orders were set aside, therefore, it was a pending case and no resumption order could have been passed after 23.03.1990 in the light of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99---Validity---Land Commissioner was not competent to grant permission of review rather the permission under R. 12 of Punjab Land Reforms Rules, 1972 was required from Additional Chief Land Commissioner or Chief Land Commissioner---By no stretch of imagination it could be said that matter was reopened by the order of Land Commissioner---Constitutional petition was dismissed.
Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 distinguished.
Muhammad Safdar and others v. Punjab Land Commission through Secretary and others 2012 SCMR 1725 and Shah Jehan Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and another 2006 SCMR 771 ref.
Ghulam Farid Sanotra for Petitioners.
Ms. Firdous Butt, Additional Advocate General Punjab for Respondents Nos.1-8.
Malik Noor Muhammad Awan for Respondents Nos. 9-15.
2018 Y L R 1938
[Lahore]
Before Amin-ud-Din Khan and Atir Mahmood, JJ
SHEHWAAR and 2 others---Appellants
Versus
MUHAMMAD RIAZ and others---Respondents
R.F.A. No.95 of 2016, heard on 8th May, 2018.
(a) Civil Procedure Code (V of 1908)---
----O. I, R. 10---Necessary party, impleading of---Scope---Where validity of a registered document was challenged and the connivance of officials of Provincial Government was pleaded, the Provincial Government in that eventuality became a necessary party.
(b) Civil Procedure Code (V of 1908)---
----O.VI, R.4---Pleadings---Fraud must be pleaded.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art.118---Execution of document---Burden of proof---Initial onus, discharge of---Scope---Where plaintiffs failed to plead fraud and implead necessary parties contributory to fraud, the onus to prove the execution of power-of-attorney did not shift upon the vendees/transferees, therefore, to produce two witnesses of the power-of-attorney was not applicable as the defendants were not obliged to prove valid execution of power-of-attorney---When plaintiffs failed to discharge their onus, same did not shift upon defendants.
(d) Public functionaries---
----Duty--- Presumption--- Scope--- Where an act was performed by a public functionary in performance of his public duty same had presumption that the act was performed in accordance with law.
Haris Azmat for Appellants.
Muhammad Tahir Chaudhry for Respondents.
2018 Y L R 1950
[Lahore (Multan Bench)]
Before Mujahid Mustaqeem Ahmed, J
MUHAMMAD RAFIQUE and another---Petitioners
Versus
PROVINCE OF PUNJAB through District Collector, Vehari and others---Respondents
Civil Revision No.284-D of 2001, heard on 16th October, 2017.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S. 36--- Revenue Courts--- Exclusive jurisdiction---Scope---Matters of allotment, determination of terms and conditions of allotment, delivery of possession of allotted land, cancellation of allotment for violation of terms and conditions of allotment or grant of proprietary rights of state land to the allottees exclusively fell within jurisdiction of revenue hierarchy.
Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730; Muhammad Shafi v. Punjab Province through Collector, Vehari and another 1982 CLC 55; Abdul Ghafar and others v. Government of West Pakistan and others PLD 1963 (W.P.) Kar. 215; Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083 and Province of Punjab, through District Collector, Vehari v. Rana son of Sardar 1989 MLD 1009 rel.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S.36---Civil Procedure Code (V of 1908), S.9---Jurisdiction of Civil Court---Scope---Exclusive jurisdiction of Revenue Courts---Scope---Civil Court was empowered to examine the legality and propriety of any order passed by the Board of Revenue---Jurisdiction of Civil Court was not barred where acts of revenue authorities were ultra vires, without jurisdiction, collusive or bad in law or void or in excess of their jurisdiction or passed in absence of aggrieved party or based on fraud---If any order of Executive Officer was ultra vires, it could be struck down by Civil Court irrespective of bar under section 36 of Colonization of Government Lands (Punjab) Act, 1912---Civil Court was competent to examine whether or not act purported to have been done under Colonization of Government Lands (Punjab) Act, 1912 could be validly done---If the order passed by Colony Authorities was within four corners of their jurisdiction, same would be immune to interference by Civil Court in view of bar under S.36 of Colonization of Government Lands (Punjab) Act, 1912.
Secretary of State v. Mask and Company AIR 1940 PC 105 rel.
(c) Civil Procedure Code (V of 1908)---
----S.9---Colonization of Government Lands (Punjab) Act (V of 1912), S.36---Exclusive jurisdiction of Revenue Courts---Intention of Legislature---Jurisdiction of Civil Court---Supervisory jurisdiction---Scope---Intentions of Legislature in their wisdom qua S. 36 of Colonization of Government Lands (Punjab) Act, 1912 were that the officers working under the Act should exercise their powers freely and should not be interrupted unnecessarily to administer colony land according to the terms and conditions issued by the competent authority from time to time but this provision did not give unfettered/unchecked power---Ambit of jurisdiction of Revenue Courts had been laid down by Colonization of Government Lands (Punjab) Act, 1912 and the officers functioning thereunder could not be allowed to act beyond their scope of jurisdiction or exceed their jurisdiction---Civil Court, in exercise of its supervisory jurisdiction had the authority/power to interfere, if the orders of revenue hierarchy were found to be without jurisdiction mala fide, excessive or in violation of law---Under S.9 of Civil Procedure Code, 1908 Civil Court was competent to check usurpation of power by Revenue Courts, but it could not check errors of judgment of Revenue Court on the plea of mis-appreciation of evidence.
(d) Civil Procedure Code (V of 1908)---
----S.9---Colonization of Government Lands (Punjab) Act (V of 1912), S.36---Limitation Act (IX of 1908), Art. 14---Suit to set aside any order of government officer---Limitation---Order was passed by Additional Commissioner on 2.11.1988 and the plaintiffs assailed the same by filing civil suit on 4.10.1990---Contention of the plaintiffs was that they came to know about the order just six months prior to the institution of suit---Validity---Said order had been passed in presence of plaintiffs' counsel and was in their knowledge, but they kept quiet for a long period of time for the reasons best known to them---Article 14, Limitation Act, 1908 provided one year limitation to assail order passed by a government officer---High Court held the suit to be time-barred.
State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and Ghulam Sarwar v. Amir Hussain and 3 others 2004 SCMR 944 ref.
Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 rel.
(e) Administration of justice---
----Law favours the vigilant and not the indolent.
(f) Civil Procedure Code (V of 1908)---
----S.115---Revisional jurisdiction---Concurrent findings---Concurrent findings of courts below could not be interfered with in revisional jurisdiction of High Court, when the same were based on proper appreciation of evidence on record.
Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Babi 2012 SCMR 1373; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 ref.
Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 rel.
Ch. Abdul Ghani for Petitioner.
Aziz-ur-Rehman Khan, A.A.G. for Respondents.
Proceeded against ex parte for Respondents Nos.2(i) to 2(ix).
2018 Y L R 2073
[Lahore]
Before Ch. Muhammad Iqbal, J
PROVINCE OF THE PUNJAB through Member Judicial-V/Chief Settlement Commissioner, Punjab, Board of Revenue, Lahore---Petitioner
Versus
NOTIFIED OFFICER, LAHORE and others---Respondents
Writ Petitions Nos.37-R, 38-R and 80-R of 2016, heard on 26th February, 2018.
(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---
----S. 3---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)---Scheme for Management and Disposal of Available Urban Properties, 1977, Para. 1---Notification No. 296 (Misc.)-Admn-Sett/74 dated 14-11-1974---Allotment of evacuee land, cancellation of---Past and closed transaction---Scope---Notified Officer cancelled allotment of evacuee property in favour of petitioners in the post remand proceedings---Validity---Evacuee laws had been repealed with effect from 01-07-1974 after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Impugned order was illegal, coram non-judice and had been passed without lawful authority---Suit land had been declared as building site and could only be disposed of by the competent authority under Scheme for Management and Disposal of Available Urban Properties, 1977---Suit property could not be allotted against any pending evacuee claim---No agricultural urban land existed in the district for any allotment---Order for alternate allotment made by the Additional Deputy Commissioner (General) was coram non judice and void ab initio---Chief Settlement Commissioner had no such authority to make allotment of alternate land---Where a party claiming the protection of rights created under a law failed to pass the test of constitutionality, it could not take the plea of past and closed transaction---Illegal occupant was not entitled to have any discretionary relief of constitutional jurisdiction---Petitioners had not come to the Court with clean hands---Constitutional petition was dismissed in circumstances.
Mst. Kabiri Bibi and others v. Secretary (S&R) Board of Revenue and others 2012 YLR 392; Jamil Ahmad Sheikh v. Ch. Zafar Iqbal and another 2010 YLR 1257; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119; Province of Punjab through Secretary, Irrigation and Power Department Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592 and Member Board of Revenue, Punjab Lahore v. Rafaqat Ali 1998 SCMR 2596 ref.
Muhammad Ramzan and others v. Member (Rev.) / CSS and others 1997 SCMR 1635; Member Board of Revenue/ Chief Settlement Commissioner, Punjab Lahore v. Abdul Majeed and another PLD 2015 SC 166; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing), Punjab, Lahore v. Akhtar Munir and 6 others PLD 2003 SC 603; Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719 and American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional petition by the Province---Maintainability---Province as well as its designated officers were trustees of the public assets of the Province and if they felt aggrieved of any order passed by any public functionary in violation of law or disloyalty to his obligation or under the taint of colourable exercise of jurisdiction, constitutional petition by the Province was maintainable against the said order.
Member Board of Revenue/Chief Settlement Commissioner, Punjab Lahore v. Abdul Majeed and another PLD 2015 SC 166 rel.
(c) Jurisdiction---
----Mere consent or convenience of the litigating parties did not confer any jurisdiction to adjudicate a matter outside its jurisdiction rather it was only the dictates of codified law to bestow or rescind the jurisdiction of a forum.
Hafiz Muhammad Yusuf for Petitioner (in Writ Petition No.37-R of 2016).
Mian Swad Hanif for Respondent No.1 (in Writ Petition No.37-R of 2016).
Muhammad Omer Malik, Muhammad Anwar Khan and Rohail Asghar for Respondents Nos.2 and 3 (in Writ Petition No.37-R of 2016).
Hafiz Muhammad Yusuf for Petitioner (in Writ Petition No.38-R of 2016).
Mian Swad Hanif and Rohail Asghar for Respondent No.1 (in Writ Petition No.38-R of 2016).
Khalid Ishaq, Vice Counsel for Respondent No.2 (in Writ Petition No.38-R of 2016).
Sheikh Usman Karim-ud-Din, for Applicants (in C.M. No.3-C of 2016).
Muhammad Shahzad Shaukat for Petitioners (in Writ Petition No.80-R of 2016).
Mian Swad Hanif for Respondent No.2 (in Writ Petition No.80-R of 2016).
Khalid Ishaq, Vice Counsel for Respondent No.10 (in Writ Petition No.80-R of 2016).
Muhammad Omer Malik and Muhammad Anwar Khan for Respondents Nos.11 and 12 (in Writ Petition No.80-R of 2016).
Sheikh Usman Karim-ud-Din for Applicants (in C.M. No.4-C of 2016).
2018 Y L R 2118
[Lahore (Multan Bench)]
Before Ch. Muhammad Masood Jahangir, J
Mst. RUQIYA BIBI and 10 others---Petitioners
Versus
ALLAH DITTA and 17 others---Respondents
C.R. No. 419-D of 2012, heard on 28th November, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79, 80 & 129 (g)---Civil Procedure Code (V of 1908), O. VI, R. 2, O. VIII, R. 2, Ss. 148 & 151---Suit for specific performance of agreement to sell---"Sale"--- Ingredients--- Document---Proof---Procedure---Non-examination of summoned witness--- Effect--- Maxim: Secundum allegata et probata---Applicability---Suit was decreed subject to payment of balance sale consideration within thirty days---Plaintiffs failed to deposit the balance sale price within specified time and application for extension of said period was allowed---Validity---Mere execution of agreement, attestation of mutation or even registration of sale deed by itself did not furnish proof of ingredients of "sale"---Beneficiary was bound to prove such document as well as transaction of sale---Allotment of property in question did not exist in favour of the vendor at the time of execution of agreement to sell---Vendor was not competent to settle sale with the plaintiff in circumstances---Mere admissibility of document as evidence was not ipso facto the proof of its execution---Due execution of document was required to be proved in consonance with the provisions of Qanun-e-Shahadat, 1984---Document could only be used as evidence if two attesting witnesses, at least, had been called for the purpose of proving its contents, execution and construction---Son of one deceased marginal witness was summoned at the request of plaintiff to testify signatures of his father but he was not examined---Non-examination of summoned witness would compel the Court to draw an adverse inference against the concerned party---Agreement to sell was not required to be notarized and Notary Public could not be equated at par with the author of document---Plaintiffs had not examined the scribe of agreement to sell whereas one of its attesting witnesses had died---Maxim: Secundum allegata et probata that a fact had to be alleged by a party before it was allowed to be proved had full command of O.VI, R.2 & O.VIII, R.2, C.P.C.; as such any evidence led by a party beyond the scope of pleadings was liable to be ignored---Other marginal witness was one of the plaintiffs and his statement being that of an interested person could not be given due weight---Decree passed by the Court was final and Court had no power to extend time to deposit the balance sale price---Impugned order for extension of time to deposit sale consideration was set aside---Suit filed by the plaintiffs was dismissed---Revision was allowed in circumstances.
Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Haider Ali Bhimji v. VI Additional District Judge, Karachi (South) and another 2012 SCMR 254; Muhammad Ismail v. Muhammad Akbar Bhatti PLD 1997 Lah. 177 and Muhammad Iqbal through Legal Heirs v. Bashir Ahmad and 19 others PLD 2002 Lah. 88 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Normally the revisional jurisdiction is not invoked, where the Courts below has rendered a concurrent view of fact, but when it is based on extraneous reasoning High Court is competent and equipped with the jurisdiction to annul such concurrent findings.
(c) Pleadings---
----Party could not be allowed to improve its case beyond what had been originally set-up in the pleadings.
(d) Pleadings---
----Any evidence led by a party beyond the scope of its pleadings was liable to be ignored.
(e) Words and phrases---
---'Attestation'---Attesting witness---Meaning---"Attestation" means the act of witnessing the construction of document acquiescing ones name as witness to that effect, which also includes putting his thumb impression-signatures to testify that he witnessed its execution and such a signatory is called an "attesting witness".
(f) Maxim---
----"Secundum allegata et probata": Fact has to be alleged by a party before it is allowed to be proved.
Tariq Zulfiqar Ahmad Chaudhary for Petitioners.
Ch. Asif Amin and Ch. Aftab Shabbir Arain, Mubashar Latif Gill, AAG for Respondent No.18.
2018 Y L R 2138
[Lahore]
Before Shahid Bilal Hassan, J
Mst. KHURSHID BIBI and others---Petitioners
Versus
Syed FAZAL ABBAS and others---Respondents
Civil Revision No.1505 of 2009, decided on 29th June, 2018.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Inheritance---Co-sharers---Daughters and widow being co-sharers in the property to the extent of their shares since the beginning, their suit was not barred by limitation---When the property was devolved upon said sharers it was of no importance that their ownership was not recorded in the mutation of inheritance.
(b) Civil Procedure Code (V of 1908)---
----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Misreading and non-reading of evidence---Interference by High Court---Scope---When there was no misreading and non-reading of evidence, the concurrent findings on facts, howsoever erroneous, could not be interfered with.
Muhammad Farid Khan v. Muhammad Ibrahim, and others 2017 SCMR 679; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 rel.
Syed Kalim Ahmad Khursheed and Zaka ur Rahman for Petitioners.
Dr. Abdul Basit and Inam Ullah Khan Aziz for Respondents.
Zafar Iqbal Kalanori for Applicant.
Wasim Mumtaz Malik, Additional Advocate General with Khuram Shahzad Naqvi ADLR, Rai Ali Hasnain ADLR and Ashar Hameed Sial, SG1.
2018 Y L R 2181
[Lahore (Rawalpindi Bench)]
Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ
Hafiz AMJAD SAEED---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.297 of 2015 and Murder Reference No.28 of 2015, decided on 15th January, 2018.
Penal Code (XLV of 1860)---
----Ss. 302(b), 315, 316 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, alteration of---Prosecution case was that accused gave beating to the son of complainant using his fists which hit him on different parts of his body; he fainted and then died---Record showed that in the face of violence attributed to the accused, though insignificant, there was no doubt that the deceased died as a result of vaso-vagal inhibition/shock, consequent upon receipt of trauma on most vital organ and as such fatal impact thereof could not be favourably quantified---Record transpired that defence had not seriously contested ocular account furnished by the witnesses, which otherwise, found plausible in circumstances, consistent with medical evidence as well as investigative details collateral therewith sufficient to exclude every hypothesis of accused's innocence---Question as to whether accused in circumstances, could be returned a guilty verdict under clause (b) of S. 302, P.P.C., warranted serious consideration inasmuch as on stated prosecution's position, culpability of accused was more aptly covered by the mischief of S.315, P.P.C.---Accused, in circumstances, was liable to be convicted under S. 316 instead of clause (b) of S. 302, P.P.C., therefore, his conviction was altered accordingly and he would pay Diyat fixed for the relevant fiscal year and would also undergo imprisonment for a period of ten years as tazir---Appeal was dismissed with modification in sentence.
Syed Muhammad Tayyab and Shan Zaib for Appellant.
Malik Ghulam Mustafa Kandwal for the Complainant.
Umar Hayat Gondal, Additional Prosecutor General for the State.
2018 Y L R 2243
[Lahore]
Before Muhammad Yawar Ali and Ch. Abdul Aziz, JJ
KHALIL UR REHMAN alias HEERA---Petitioner
Versus
The STATE and others---Respondents
Crl. Misc. No.50736-B of 2017, decided on 20th July, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 20, 21 & 25---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Accused who was in the Police custody in connection with a previously registered criminal case, allegedly led to the recovery of 2 Kilograms of charas from his house---According to the S.20 of the Control of Narcotic Substances Act, 1997, search of a building, about which there were reasons to believe that narcotic drug, psychotropic substances, were being kept, was to be conducted under a warrant of search to be issued by the Special Court---Requirement of search warrant, could only be relaxed in circumstances mentioned in S.21 of the Control of Narcotic Substances Act, 1997---Accused being already in custody of Police in a previously registered criminal case, there was no possibility of the concealment or the removal of charas---Investigating Officer, in circumstances, should have obtained a search warrant in accordance with S.20 of the said Act---Said omission provided a valid ground for the grant of bail to the accused---No evidence was available on record to connect the accused with the house from where the recovery was made which aspect reasonably attracted the provisions of S.497(2), Cr.P.C.---Case against accused being of further inquiry, he was admitted to post arrest bail in circumstances.
Waris Khan v. The State 2002 PCr.LJ 1225; Zar Gul v. The State 2003 PCr.LJ 1392; Adrees Ahmad and others v. Zafar Ali and another 2010 SCMR 64 and Shahzad Ahmed v. The State Through F.I.A. Islamabad 2010 SCMR 1221 ref.
(b) Interpretation of statutes---
----Provisions of a statute were to be applied as a whole and could not be subjected to a pick and choose approach.
Mian Roohi Iram Chaudhry for Petitioner.
2018 Y L R 2255
[Lahore]
Before Muhammad Farrukh Irfan Khan, J
GULF COLLEGE OF NURSING---Petitioner
Versus
PAKISTAN NURSING COUNCIL and others---Respondents
Writ Petition No.151451 of 2018, decided on 2nd March, 2018.
University of Health Sciences Lahore Ordinance (LVIII of 2002)---
----Ss. 2(xviii) & 37---Process of affiliation--- Statutory requirements---Grievance of college was that authorities had not completed process of affiliation and such delay could affect admission of students---Plea raised by University Health Sciences was that petitioner failed to comply with all mandatory requirements for grant of affiliation---Validity---High Court in exercise of its powers under Art. 199 of the Constitution, could not issue any direction to the University for grant of affiliation to petitioner college by dispensing with any of the mandatory and statutory requirements of applicable law---College failed to bring on record any proof to the effect that despite fulfilling and complying with all mandatory requirements for grant of affiliation its case was being delayed by the University---In absence of any proof of infringement of any legal right, petitioner could not be allowed to invoke Constitutional jurisdiction of High Court, as such jurisdiction, was to protect an existing legal right and not to create any right---High Court declined to exercise its Constitutional jurisdiction in favour of petitioner as the same was discretionary in nature and could not be exercised to perpetuate ill-gotten gains---Constitutional Petition was dismissed in circumstances.
Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230 rel.
M. Safdar Shaheen Pirzada for Petitioner.
Mufti Ahtasham-ud-Din Haider and Mian Irfan Akram, DAG for Respondent No.2.
2018 Y L R 2292
[Lahore]
Before Mamoon Rashid Sheikh and Ch. Muhammad Iqbal, JJ
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Zonal Head/Attorney and another---Appellants
Versus
Mst. SHAHIDA PARVEEN---Respondent
Insurance Appeal No.15 of 2017, heard on 5th April, 2017.
Civil Procedure Code (V of 1908)---
----O.XVI, R.1 & O.XVII, R.3---Insurance Ordinance (XXXIX of 2000), Ss.118, 122, 123 & 124---Recovery of insurance claim---Striking of right to produce evidence---Insurance company was aggrieved of order passed by Insurance Tribunal closing right to produce evidence on the ground that its witnesses had failed to appear in court---Validity---When a party filed its list of witnesses within statutory period and thereafter regularly deposited diet money and other necessary expenses for summoning of witnesses named in the list through process of Court and had filed application under O. XVI, R. 1, C.P.C. for that purpose, then it was for the Court to ensure presence of witnesses by all means available to it including moving its coercive machinery instead of penalizing party for non-appearance of witnesses---Insurance Tribunal exercised its jurisdiction illegally and with material irregularity by invoking provisions of O. XVII, R. 3, C.P.C., and closing right of insurance company to lead further evidence---High Court set aside order in question and remanded the matter to Insurance Tribunal for decision afresh after recording of evidence---Appeal was allowed accordingly.
Hakim Habibul Haq v. Aziz Gul and others 2013 SCMR 200 ref.
Mst. Bashir Bibi v. Aminuddin and 9 others PLD 1973 SC 45 and Saleem-ud-Din and others v. Government of the Punjab through Secretary Education and others 2009 MLD 635 rel.
Ibrar Ahmad for Appellants.
Liaqat Ali Butt for Respondent.
2018 Y L R 2295
[Lahore]
Before Shahid Waheed, J
MUHAMMAD (deceased) and another---Petitioners
Versus
Mst. BIKHI (deceased) and 3 others---Respondents
Civil Revision No.1635 of 2010, heard on 29th May, 2018.
Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---General power-of-attorney---Transfer of property by attorney in favour of his kith and kin---Requirements---Attorney transferred suit property in favour of his son---Contention of plaintiff was that impugned power-of-attorney and mutation were illegal, void and ineffective upon his rights---Suit was decreed concurrently---Validity---Attorney could not utilize the power conferred upon him to transfer the property to himself or to his kith and kin without special consent and permission of the principal---General power-of-attorney did not contain any special and specific power conferring right upon attorney to transfer the suit property to his son---Transaction of sale as incorporated in the impugned mutation could not be held valid---Revision was dismissed in circumstances.
Muhammad Younas v. Atta Muhammad and 2 others 1999 SCMR 2574 distinguished.
Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal heirs and others PLD 1985 SC 341; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114 and Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781 rel.
Sh. Naveed Shehryar and Ms. Kashwar Naheed for Petitioners.
Malik Rab Nawaz for Respondent Nos.3 and 4.
Nemo for Respondent No.2.
2018 Y L R 2319
[Lahore]
Before Shamas Mehmood Mirza and Jawad Hassan, JJ
LUQMAN SAJID---Petitioner
Versus
RETURNING OFFICER and 5 others---Respondents
W.Ps. Nos.224353, 224355 and 224356 of 2018, decided on 10th July, 2018.
Elections Act (XXXIII of 2017)---
----Ss. 62 & 63---Constitution of Pakistan, Arts. 62(1)(f) & 199---Constitutional petition--- Maintainability--- Factual controversy--- Qualification for membership of Parliament (Majlis-e-Shoora)---Nomination papers---Objection by petitioner was that candidate had concealed assets of his wife therefore he was disqualified to contest the election---Allegations levelled in the petition were denied by the candidate---Validity---Petitioner had appended nothing with the case which supported their contentions and countered the information provided by the candidate---Petition raised a factual controversy which could not be resolved by invoking the constitutional jurisdiction of High Court---Constitutional petition was dismissed.
Rai Hassan Nawaz v. The Election Commission of Pakistan and others 2013 CLC 1101 rel.
Ghazanfar Ali v. Noor Muhammad and others PLD 2011 Lah. 11 and Khalid Mehmood v. Rana Muhammad Iqbal 2017 CLC (Note) 179 ref.
Hassan Qayyum Butt for Petitioner.
2018 Y L R 2331
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
GHULAM HASSAN---Petitioner
Versus
Mst. WASSO MAI (deceased) through L.Rs. and others---Respondents
C.R. No.273-D of 2000, decided on 4th December, 2017.
Islamic law---
----Inheritance---Legal heirs---Classes---Plaintiff filed suit for her share of inheritance in the property of deceased nephew which was decreed concurrently---Validity---First sharers were to be allocated their shares in the inheritance and if there was no sharer or if after allocating share to sharers some property was left behind which would call residue then the same was to be transferred to the residuaries---If there was neither any sharer nor residuary then property was to be transferred to distant kindred---Distant kindred would be excluded in case there was any sharer or residuary---Normal share of mother was 1/6th share in the property of deceased in presence of his child or child of his son or where the deceased had two or more brothers or sisters or even one brother and one sister---Said condition did not exist in the present case and mother would not inherit her normal share but inherit her share as provided in special circumstances---Mother in special circumstances was entitled to inheritance of 1/3rd share in the property when there was no child or child of son of the deceased howlowsoever and not more than one brother or sister, if any, but if there was also a wife or husband and the father then only 1/3rd of what remained after deducting the wife's or husband's share---Deceased, in the present case, was unmarried---Mother, in circumstances, was entitled to inherit 1/3rd share in the property of deceased---Residue i.e. 2/3rd property was to be distributed among the residuaries---No heir in the first three categories of residuaries was available in the present case---Defendant would fall under fourth category as male descendant of true grandfather howhighsoever and he was entitled to inherit as a residuary---Paternal aunt would fall within the category of distant kindred in circumstances---Plaintiff being from the category of distant kindred was not entitled to inherit in presence of sharer and residuary---After allotment of 1/3rd share in the property to the mother as sharer the remaining 2/3rd share would vest in the defendant as residuary---Impugned judgments and decrees passed by the Courts below were set aside---Suit filed by the plaintiff was dismissed---Revision was allowed in circumstances.
Muhammad Ilyas (deceased) through his legal heirs and others v. Mst. Khursheed Bibi (deceased) through her legal heirs and others 2016 MLD 1674 rel.
Sahibzada Mahboob Ali Khan for Petitioner.
Rana M. Nazir Saeed Khan for Respondents Nos. 1(i), 3 to 6.
2018 Y L R 2383
[Lahore]
Before Amin-ud-Din Khan, J
NAZA and others---Petitioners
Versus
ABDUL HAYEE (deceased) through L.Rs. and others---Respondents
Writ Petition No.15971 of 2010, decided on 28th February, 2018.
(a) Land Reforms Regulations, 1959 (MLR 64 of 1959)---
----Para. 22---Land Reforms Regulation, 1972 [MLR 115], Para.8---Notification No.ASP-2/59/2241-LC dated 02-06-1959---Abolition of Ala Milkiat--- Scope---Plaintiffs being Adna Maliks filed suit for allotment of land which was dismissed by the Trial Court but Appellate Court decreed the same---Application for implementation of order of Appellate Court was moved which was accepted by the Additional Commissioner (Consolidation) who declared two mutations as void in toto---Appeal against the said order was filed which was accepted by the Member Board of Revenue and said mutations were cancelled partially---Validity---Property of which there was no Adna Maliks was to be given to the Ala Maliks and they would become full owners---Excess land after retaining permissible holding was to be resumed by the Land Commission and was to be allotted in accordance with the scheme of Land Reforms to the persons entitled for the same---Some land after resumption, was allotted to the persons entitled under the Land Reforms and some was given to Pakistan Railways and Canal Department---If both the mutations were declared null and void in toto then all the legal proceedings and legal transfers of land to the entitled persons as well as Railways and Canal Department would be reverted which was not permissible under the law---Some land was of non-Muslim owners and after their migration to India the property vested to the Custodian and Settlement Department was allotted under their own schemes---Findings of Additional Commissioner (Consolidation) were against facts as well as law---Property in dispute in the lis before Civil Court, subject matter of appeal decided by the District Judge, was 206 kanals and 15 marlas whereas the property subject matter of both the mutations was 28000 kanals and only 2000 kanals was of Adna Maliks---When Ala Maliks made the land of Shamilat cultivable they qualified the definition of Adna Maliks then they were to be declared as full owners---Party approaching the High Court by constitutional petition must show that order impugned or action taken by the respondents was without jurisdiction or contrary to any provision of law or against the notified policy of Government---No infirmity or illegality had been pointed out in the impugned order passed by the Member (Consolidation) Board of Revenue, constitutional petition was dismissed in circumstances.
Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; Muhammad Ovais and another v. Federation of Pakistan through Ministry of Works and Housing Pakistan, Islamabad and others 2007 SCMR 1587 and Syed Iftikhar-Ud-Din Haidar Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others 1996 SCMR 669 ref.
Ghulam Haider v. Ghulam Raza Shah and 12 others PLD 1979 Lah. 481 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Invocation of---Requirements.
When a party comes to High Court through a constitution petition filed under Article 199 of the Constitution the party must show the order impugned through the petition or action taken by the respondents to be without jurisdiction or contrary to any legislative provision of law or at least against the notified policy of the Government.
Malik Noor Muhammad Awan and Sh. Naveed Shehryar with Miss Saima Hanif and Fatima Malik for Petitioners.
Malik Allah Wasaya and Zafar Iqbal Chaudhry for Respondents Nos. 1 to 12.
Malik Muhammad Azeem, Additional Advocate General Punjab for Respondents Nos. 13 to 15.
2018 Y L R 2433
[Lahore]
Before Muhammad Qasim Khan, J
MUHAMMAD KHALID and others---Petitioners
Versus
The STATE and another---Respondents
Crl. Misc. No.190071-B of 2018, decided on 4th July, 2018.
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(iii), 337-L(2) & 452---Shajjah-i-Khafifa, Shajjah-i-hashimah, hurt---Ad-interim bail, confirmation of---General role of accused---Effect---Previous enmity---Scope---FIR was lodged against accused and co-accused that they entered the house of complainant while carrying dandas hurled abuses, extended threats, maltreated two female members inflicted fist, kick and danda blows to one of said female and dragged her---Accused had been attributed general role without causing any injury to the victim---Litigation existed between the parties---One of the co-accused was stated to be 50% owner of the disputed house and his wife was living there---Applicability of S. 452, P.P.C. would be seen at the trial after recording of evidence---Considering the background of hostility between the parties, possibility of petitioner's false implication in the case as the result of widening the net could not be ruled out---Ad-interim pre-arrest bail already granted to the petitioner was confirmed.
Meeran Bux v. The State and another PLD 1989 SC 347 ref.
Ch. Muhammad Ali for Petitioners.
Ch. Anwaar ul Haq Pannu and Nosheen Ambar, for the Complainant.
2018 Y L R 2468
[Lahore (Rawalpindi Bench)]
Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ
Malik ABDUL RAUF---Petitioner
Versus
SABOOR AHMAD and 3 others---Respondents
P.S.L.A. No.24 of 2017, decided on 12th January, 2018.
Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused fired upon the deceased, who as a result whereof, succumbed to the injuries in the hospital---Land dispute and civil litigation consequent thereupon had been cited as a motive for the crime---Record showed that locales of fire shots being on back of the neck and close in inter se proximity was a common ground---In that backdrop, repeated fire shots by two assailants in a fractional space of time without any change or alteration in deceased's posture was mindboggling to say the least---Equally improbable was participation of three real brothers to accomplish the task, which every single of them could have achieved without putting the entire family at risk---Statement of defence witness supported by court witness went a long way to entertain hypothesis of absence of eye-witnesses; though ipse dixit of the police was not binding upon the court, conclusions drawn during investigation process could not be ignored or thrown out on that premise alone, particularly when found inconsonance with the attending circumstances of the case---Findings returned by the Trial Court could not be described as arbitrary, fanciful or impossible, which reflected a possible scenario to be conceived without being imprudent---Mere existence of possibility of a contra view by itself would not suffice to recall freedom in the absence of strong and cogent reasons, admitting conclusion except that of the guilt, that too, essentially to prevent miscarriage of justice---Appeal against acquittal was dismissed.
2018 Y L R 2482
[Lahore (Multan Bench)]
Before Mujahid Mustaqeem Ahmed, J
ABDUL RASHEED through L.Rs. and 7 others---Appellants
Versus
MUHAMMAD AKHTAR and another---Respondents
R.S.A. No.7 of 2011, heard on 25th September, 2017.
Civil Procedure Code (V of 1908)---
----O.VI, R.17---Amendment in pleadings---Discretionary power---Amended written statement---Admission---Scope---Court has vast discretionary powers to allow amendment in pleadings---Such discretion was to be exercised liberally to promote the ends of justice and to determine the real controversy in-between the contesting parties--- While submitting written statement, besides replying to the amended paragraphs of plaint, the defendant could take pleas which were available to him, under the law---Court, however, would not authorize the defendant to resile from the admission made in the earlier written statement or add a new or inconsistent case, as already pleaded in earlier written statement---Admission made by a party to the lis in the pleadings could not be revoked without express permission of the court.
Malik Muhammad Latif Khokhar for Appellant No.1.
Muhammad Shahzad Khan for Respondent No.1.
Respondent No.2: Ex parte.
2018 Y L R 2494
[Lahore (Rawalpindi Bench)]
Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Tariq Abbasi, JJ
GHAYOUR ABBAS---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.302 of 2017, heard on 13th November, 2017.
Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1200 grams of charas was recovered from accused; out of the recovered charas, fifteen grams was separated for chemical analysis---Record showed that the witness/Moharrar stated that the sample was deposited with the office of Chemical Examiner, however, the report of the concerned quarter available on file reflected that it was neither an original report nor it was true/certified copy of the report rather it was a duplicate copy, which was issued four years after the occurrence---Said report did not carry signature of the Bio-Chemist or Chemical Examiner---Report of Chemical Examiner was to be brought on record in terms of S. 510, Cr.P.C. without summoning its author---Said report should be in original form and in case its original was not available, then on the basis of very cogent reasons its certified copy should be presented for consideration---Record reflected that neither the report was original one nor it qualified to be a certified copy, hence, said report could not be read in evidence against the accused to connect him with the case---No provision of law existed deviating from the requisite mode of proof of a document---Record transpired that the report of Chemical Examiner, in the present case, was neither a legal document nor carried sanction of law, hence, the same being vague/invalid document could not be read against the accused---Circumstances established that prosecution lacked incriminating evidence available on record to connect the accused with the offence alleged---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.
Province of Punjab's case 2017 SCMR 172 rel.
Syed Zulfiqar Naqvi for Appellant.
Tanveer Ahmed Warraich, DDPP with Naeem Iqbal, ASI for the State.
2018 Y L R 2503
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
ARSHAD MEHMOOD---Petitioner
Versus
DOST MOHAMMAD---Respondent
C.R. No.3023 of 2013, heard on 4th April, 2018.
Civil Procedure Code (V of 1908)---
----S.12(2)---Fraud and misrepresentation---Ex-parte decree, setting aside of---Scope---Contention of applicant was that prior to institution of suit, suit property had been transferred to him and decree in question had been obtained by means of fraud and misrepresentation---Trial Court set aside the impugned decree but Appellate Court dismissed the application for setting aside of ex-parte decree---Validity---Suit property had already been transferred in favour of petitioner prior to institution of the suit---Appellate Court had erred in law while dismissing the application under S.12(2), C.P.C.---Impugned order passed by the Appellate Court was result of mis-reading and non-reading of evidence which was set aside---Revision was allowed in circumstances.
Moeen Ahmed for Petitioner.
Nemo for Respondent.
2018 Y L R 2524
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
MUHAMMAD AMIN through Legal Heirs and 2 others---Petitioners
Versus
Mst. ASHRAF BIBI through Legal Heirs and another---Respondents
Civil Revision No.20533 of 2017, heard on 13th June, 2018.
(a) Muslim Personal Law (Shariat) Application Act (IX of 1948)---
----S. 5--- Custom--- Succession--- Limitation--- Claimants' predecessor-in-interest having been deprived of his share from the legacy of father on the ground that he had been adopted by his maternal grandfather and had inherited from him---Effect---Plea of plaintiff was that she was entitled to inherit from the estate of her propositus whereas defendants contended that predecessor-in-interest of plaintiff was deprived of inheritance in accordance with the custom---Suit was dismissed by the Trial Court but Appellate Court decreed the same--- Validity--- Customary appointment of an heir did not involve the transplantation of a person from one family to another---Tie of kinship with the natural family would not dissolve and the fiction of blood relationship with the members of new family had no application to the appointed one---Relationship created among the appointer and appointee was personal by choice and did not extend beyond the contracting parties on their sides---Decisions with regard to succession must take place as per custom applicable to the parties concerned otherwise Muslims were to be administered by Islamic Law for succession among them---Defendants were bound to prove that custom prevailed for years and years without any interruption among their tribe as per their common will and unanimous intention---Heir ordained by Islamic law in absence of custom could not be deprived of his legal share from inheritance which would vest in him automatically upon the death of his propositus---Benefit of S. 5 of Muslim Personal Law (Shariat) Application Act, 1948 could only be extended if it was proved that parties were governed by the practice otherwise Islamic Law was to be applied---Nothing was on record that family of the parties was governed by custom that an heir could be deprived of his shari share from the legacy of his father---Impugned inheritance mutation could neither be supported nor perpetuated in circumstances---Fraud would vitiate every solemn transaction and Court should not endorse and perpetuate a fraud once it was proved to have been committed---Any transaction found to be result of misrepresentation could not be protected on the sole score of limitation---Limitation did not apply in case of inheritance; no limitation would run for a co-sharer and barrier of limitation would not be any hurdle in the enforcement of rights of inheritance---Entries in the revenue record would afford fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged did not extinguish right of a party against whom such entry had been made---Every fresh entry in the revenue record would give fresh cause of action to the plaintiff to challenge the same---Revision was dismissed in circumstances.
Customary Law authored by Om Parkash Aggarawala ref.
Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 and Ghulam Abbas and others v. Muhammad Shafi through L.Rs. and others 2016 SCMR 1403 distinguished.
Muhammad Umar Khan and others v. Muhammad Nia-ud-Din Khan 126 P.R. 1912 (P.C.); Gaman and another v. Nadir Din and another 35 P.R. 1896; Muhammad Sadiq and 3 others v. Mst. Seemi Bibi through Legal Heirs and others 2017 MLD 94; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Abdul Rahim and another v. Mrs. Jannatay Bibi 2000 SCMR 346; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Maqbool Ahmed v. Govt. of Pakistan 1991 SCMR 2063; Mst. Reshman Bibi v. Amir and others 2004 SCMR 392; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Noor Muhammad (decd) through L.Rs. v. Jan Muhammad (decd) through L.Rs. and others PLJ 2015 SC 831 and Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 rel.
(b) Fraud---
----Fraud would vitiate the most solemn transaction.
(c) Limitation---
----Inheritance---No limitation would run in case of inheritance.
Muhammad Mahmood Ch. for Petitioners.
Muhammad Sarwar Javi and Mian Muhammad Nawaz for Respondents.
2018 Y L R 2562
[Lahore (Multan Bench)]
Before Mujahid Mustaqeem Ahmed, J
SUMAIA BIBI---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and 2 others---Respondents
Writ Petition No.2322 of 2016, heard on 19th October, 2017.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for recovery of dower/Haq-ul-Mehr---Property in lieu of dower incorporated in Column No. 16 of Nikahnama--- Scope--- Entries in Nikahnama--- Presumption of truth---Scope---Petitioner/ex-wife contended that Appellate Court had wrongly concluded that property mentioned in column No. 16 of Nikahnama could not be treated as dower---Respondent/ex-husband contended that Appellate Court had rightly set aside the decree passed by the Family Court as said entries in Nikahnama were made afterwards in connivance with "Nikah Khawan"---Validity---Record revealed that respondent had conceded during cross-examination that he had signed Nikahnama and he had never challenged the entries therein---Documents could not tell lie---Nikahnama had established the claim of petitioner for recovery of 4-Marla land or in alternate its market price---Nikahnama being a public document did not require any formal proof---Strong presumption of truth was attached to entries made in Nikahnama---Respondent had mentioned in said Nikah Nama that landed property would be transferred in favour of bride as Haq-ul-Mehr, thus no scholarly interpretation of entries in Column No. 16 was needed---High Court set aside impugned judgment and decree passed by Appellate Court---Constitutional petition was allowed accordingly.
Jan Muhammad v. Mst. Salamat Bibi and others 2002 SCMR 1408; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Abdul Malik and others v. Mst. Subbha Mai alias Sabbah Mai 2016 MLD 925; Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 and Mst. Mithan v. Additional District Judge, Jatoi and 7 others 2017 MLD 1101 ref.
Syed Nadeem Raza through Attorney General v. Mst. Amna-Tuz-Zahra and 2 others 2011 CLC 726 distinguished.
Mehr Abdul Ghafoor Arain for Petitioner.
Mumtaz Hassan Awan for Respondent No.3.
2018 Y L R 2574
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
BASHIRAN BIBI---Petitioner
Versus
ZAIB UN NISA and others---Respondents
C.R. No.2628 of 2016, heard on 10th October, 2017.
(a) Specific Relief Act (I of 1877)---
----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 129 (g)---Suit for declaration---Sale mutation---Proof---Requirements---Maxim: secundum allegata et probata---Applicability---Contention of plaintiff was that impugned sale mutation was outcome of fraud and misrepresentation---Suit was decreed concurrently---Validity---Sale mutation did not create any title or right in the immovable property---Beneficiary of mutation was bound, not only to prove its attestation but also establish the original transaction reflected therein---Attestation of mutation was a subsequent stage whereas prior to it the transaction must have been effected among its parties---Essential details with regard to settlement of transaction pertaining to time, month, venue and names of witnesses before whom it was struck down should be provided by the beneficiary in his pleadings so that same could be proved later on---No such detail had been provided by the defendant in his written statement---Oral sale mutation being a document involving financial obligation had to be proved as per mode provided under Art. 79 of Qanun-e-Shahadat, 1984---Such document could only be used as evidence until two attesting witnesses at least had been called for the purpose of proving its contents, execution and construction---If beneficiary failed to examine required number of witnesses to prove sale mutation then there would be adverse presumption against him---Nothing was on record with regard to payment of sale consideration to the vendor---Impugned mutation having been attested in the office of Revenue Office, which being militant to the basic provisions, could not sustain in the eye of law---Vendor was on death bed when impugned mutation was sanctioned---Courts below were justified to decree the present suit---No illegality, irregularity or mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees---Revision was dismissed in circumstances.
Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and others 1993 CLC 1374; Ghulam Hussain and others v. Imam Bakhsh and 9 others 1995 MLD 1165 and Qasim Ali v. Sher Muhammad 2007 YLR 1770 rel.
(b) Words and phrases---
----'Marz-ul-mout'--- Meaning--- Marzul Maut means that person aggravated with a disease apprehended that death was more probable than chance to live.
Muddasir Abbas Maghiana for Petitioner.
Moeen Ahmed for Respondents.
2018 Y L R 2586
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
FAIZ MUSTAFA---Petitioner
Versus
JUDGE FAMILY COURT and others---Respondents
W.P. No.9649 of 2018, decided on 26th June, 2018.
Family Courts Act (XXXV of 1964)---
----S. 5, Sched. & S.10(5)---Suit for recovery of dower, dowry articles and maintenance allowance---Maintenance allowance for minor---Quantum---Scope---Income of father---Effect---Non-availability of right of appeal---Constitutional petition against such judgment--- Maintainability--- Gold ornaments and house in lieu of dower---Scope---Petitioner/father contended that maintenance allowance of the minor to the tune of Rs. 4000/- per month was exorbitant as he had no permanent monthly income for being daily wager in a factory---Respondent contended that petitioner was running many businesses---Validity---Respondent had stated during her cross-examination that petitioner was doing job in a factory---Family Court concluded that monthly income of the petitioner could be Rs. 14,000/----No evidence had been led by the parties to show that maintenance allowance amounting Rs. 4000/- was exorbitant, therefore, Family Court had rightly determined the quantum of maintenance allowance of the minor---Maintenance allowance of Rs. 5000/- per month or less was not challengeable in appeal---Constitutional petition could not be used as alternate of appeal without proving any illegality or jurisdictional defect---Respondent claimed dower of three tolas gold ornaments and two marlas' house---Column No. 13 of Nikah Nama mentioned that one Tola gold ornament had been paid, therefore, Family Court had rightly disallowed the said claim, however, two-marla house was mentioned in Column No. 16 of the Nikah Nama was payable---Family Court had observed that as the marriage of the parties had been dissolved on the basis of Khulla, therefore, under S.10(5) of Family Courts Act, 1964, respondent was entitled to receive 75% of dower i.e. 2 marla constructed house or its alternate value of Rs. 100000/- as mentioned in the Nikah Nama which came to be Rs. 75000/----Petitioner had failed to show that the dower had been paid to the respondent---Family Court after evaluating the evidence had rightly fixed the alternate price of dowry articles equal to Rs.100000/----Decree for recovery of dowry articles amounting to Rs. 100000/- or less was not appealable and constitutional petition could not be used as alternate of appeal unless some illegality, perversity or jurisdictional defect was pointed out---No illegality or infirmity having been noticed in the impugned judgment and decree passed by the Family Court, constitutional petition was dismissed accordingly.
2018 Y L R 2592
[Lahore (Multan Bench)]
Before Asjad Javaid Ghural, J
MUHAMMAD AMIR---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.525 of 2016, heard on 20th April, 2018.
(a) Penal Code (XLV of 1860)---
----S. 376--- Rape--- Appreciation of evidence---Benefit of doubt---Prosecution case was that the victim/complainant went to the cotton crop to ease herself, accused and his co-accused armed with pistol, who had already hidden, came there---Accused started forcibly committing sexual intercourse with her, she raised hue and cry whereupon, co-accused made her silent by showing the pistol, whereas accused went on committing sexual intercourse with her---Record showed that occurrence had taken place on 23.1.2012 at about noon as mentioned in the crime report---Medico-legal examination of the victim was conducted after seven days of the occurrence on 30.1.2012---Matter was reported to the police on 2.2.2012 without any plausible explanation, which showed the real possibility that the matter was reported to the police with due consultation, deliberation and fabrication---Complainant/victim was a married lady, her medical examination was conducted after seven days and during interregnum, she remained with her husband, therefore, delay of ten days in reporting the matter to the police created serious doubt with regard to the veracity of positive report of the Chemical Examiner as well as the victim herself---Victim had appeared before the Trial Court and made statement contrary to her statement recorded under S. 154, Cr.P.C.---Victim had stated that the occurrence had taken in the cotton crop with the height of 4/5 feet but in fact it was the season of cultivation of the wheat crop---Unscaled site plan showed that the place of occurrence was surrounded with wheat crop where the dry sticks of colon were lying---Place of occurrence was at a distance of 1¼ kilometres from the house of victim---Record was silent as to why the victim covered such a long distance for the purpose to ease herself when there was the crop of same height in the intervening distance--- Complainant / victim had completely exonerated co-accused by stating that said co-accused remained sitting on the watercourse, whereas in her earlier statement, it was alleged that he made her to be silent by showing his pistol---Record was silent as to how both the accused persons were aware of the fact that the victim would come exactly at the place where they had hidden themselves after covering long distance of 1¼ kilometres---Said pointed facts and circumstances of the case indicated that the mode and manner of the occurrence had not been ascribed by the victim as to what actually happened on the day of occurrence---Allegedly, complainant was forcibly subjected to sexual intercourse by the accused but no relevant mark of violence was observed on any part of her body---Injuries/scratches on the person of the victim, had specifically been mentioned by the Medical Officer being not the result or connectivity with the rape---Self-contradictory statement of the victim was neither trustworthy nor confidence inspiring, thus, the same was not worth reliance---Prosecution witnesses had reached at the place of occurrence after hearing hue and cry of the victim from a distance of ¾ Bigas and in their view the accused persons succeeded to flee away from the place of occurrence---Claim of the said witnesses of hearing hue and cry of the victim from such a long distance did not appeal to ordinary prudence---Even otherwise, they had seen the accused persons when they were fleeing away from the place of occurrence and they had not witnessed the accused committing sexual intercourse with the victim---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----S. 376---Rape---Appreciation of evidence---Solitary statement of victim---Evidentiary value---Sole statement of victim could be taken into consideration to maintain the conviction and sentence of the accused under the charge of rape but only when the same was found to be confidence inspiring and trustworthy having corroboration from other independent source of evidence like medical evidence.
(c) Penal Code (XLV of 1860)---
----S. 376---Rape---Appreciation of evidence---Medical evidence---Chemical Examiner report showed that the swabs were found stained with semen---Admittedly, no material was sent for DNA analysis for the purpose of semen grouping, which was essentially required to prove the charge of rape against the accused when the victim was a married lady---In absence of DNA analysis, the photocopy of positive report of Chemical Examiner could not be connected against the accused with any degree of certainty---Prosecution had neither examined scribe nor signatory of the said report---Medical Officer had stated in cross-examination that the injuries on the person of victim might have been the result of friendly hand or fabricated and the sexual intercourse might have been done with the victim by her husband because she was a married lady---Medical evidence provided no corroboration to the ocular account, in circumstances.
(d) Criminal trial---
----Cross-examination---Scope---Any fact mentioned in the examination-in-chief, if not cross-examined, was not to be deemed to be admitted one---Suggestion put by the defence, should not be taken as an admission or confession on part of the defence and there should not be pick and choose from the suggestions put by defence to a witness during cross-examination---Accused had every right to take many defences and if he did not opt to prove any of his defence, he could not be burdened for taking such plea---Criminal case was to be decided on the basis of totality and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact.
Nadeem Ramzan v. The State 2018 SCMR 149 rel.
(e) Criminal Procedure Code (V of 1898)---
----S. 342---Statement of accused---Exculpatory or inculpatory part of such statement, reliance on--Scope---If the prosecution succeeded to prove the guilt of accused then the inculpatory part of his statement recorded under S. 342, Cr.P.C. should be read in support of the prosecution---If the prosecution evidence was not worth reliance, statement of accused under S. 342, Cr.P.C. should be taken in toto.
Azhar Iqbal v. The State 2013 SCMR 383 rel.
(f) Criminal trial---
----Benefit of doubt---Principle---Single doubt was always considered sufficient to tilt the scale of justice in favour of accused.
Makhdoom Syed Najam-us-Saqib and Sohail Tahir for Appellant.
Adnan Latif, Deputy District Public Prosecutor for the State.
2018 Y L R 2605
[Lahore (Multan Bench)]
Before Ibad-ur-Rehman Lodhi, J
MUHAMMAD NAUMAN YOUNAS---Petitioner
Versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 4 others---Respondents
W.Ps. Nos.7374 and 8421 of 2013, decided on 10th May, 2018.
(a) Representation of the People Act (LXXXV of 1976)---
----S.42(3-A)(4)---Constitution of Pakistan, Arts. 199 & 225---Election for the seat of Member Provincial Assembly---Allegation of preparing and using bogus educational certificate as genuine by the returned candidate---Writ of quo warranto by a voter to question the notification of returned candidate issued by Election Commission of Pakistan---Maintainability---Scope---Returned candidate was holding public office under the notification issued by Election Commission of Pakistan which was still in field---Said notification could have been tested by filing election petition before Election Tribunal---No election petition was filed against the returned candidate by any of the contesting candidate---Writ of quo warranto by a voter was not competent to call in question the notification issued by the Election Commission of Pakistan declaring the respondent as returned candidate---Constitutional petition was dismissed in circumstances.
(b) Constitution of Pakistan---
----Art.199---Quo-Warranto, writ of---Meaning, scope and object.
Black's Law Dictionary, 10th Edition; The Advanced Law Lexicon; West's Legal Thesaurus/Dictionary; Wharton's Law Lexicon; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203; Halsbury's Laws of England; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Dr. Mujahid Ali Mansoori and others v. University of the Punjab and others 2005 PLC (C.S.) 694; Muzammal Ahmed Khan v. Imran Meer and others 2010 PLC (C.S.) 1023; Muhammad Iqbal Khattak v. Federation of Pakistan 2011 PLC (C.S.) 65; Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 and Waheed Sabir v. Rana Zahid Hussain Khan and others PLD 2013 Lah. 586 rel.
Aurangzeb Ghumman for Petitioner.
Peerzada Niaz Mustafa Qureshi, for Petitioner (in W.P. No.8421 of 2013).
Muhammad Naveed Rana, Assistant Attorney-General with Muhammad Rauf Nawaz, Additional Controller of Examination.
Sh. Muhammad Rafiq Goreja and Sheikh Jamshed Hayat for Respondent No.5.
2018 Y L R 2653
[Lahore (Multan Bench)]
Before Muzamil Akhtar Shabir, J
MUHAMMAD RAMZAN alias JAN MUHAMMAD---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SAHIWAL and 4 others---Respondents
Writ Petition No. 5969 of 2017, decided on 12th December, 2017.
Family Courts Act (XXXV of 1964)---
----S. 13---Maintenance allowance of wife and minors---Execution proceedings---Parties, earlier, entered into compromise and the Court dismissed execution petition as withdrawn in the wake of statement made by wife/mother/decree-holder---Omission of the Court in inferring statement of party (decree-holder) in true perspective---Effect---Presumption of correctness attached to the judicial acts---Scope--- Petitioner/judgment-debtor contended that Executing Court had rightly dismissed respondents' application for restoration of execution petition as earlier execution petition was dismissed as withdrawn---Respondents/decree-holders contended that Appellate Court had rightly allowed appeal preferred by them as wife/mother actually stated to consign the execution petition and not to withdraw the same---Respondents submitted that judgment-debtor did not abide by the compromise---Validity---Record revealed that wife/mother got her statement recorded before the Executing Court to the effect that she had patched up the matter and had agreed to live with the husband, however, she specifically stated in her statement that judgment debtor had not paid any amount to her on account of decree passed by the Family Court and she reserved her right to receive the maintenance allowance in terms of decree and for the time being she did not want to pursue the matter and file be consigned---Once an execution petition was withdrawn, the same could not be restored, although the decree holder could file second execution petition for execution of decree depending upon the circumstances; however, in the present case, it was to be seen, whether wife had withdrawn execution petition or not---Order of the Executing Court, to the extent of "dismissing the execution petition as withdrawn " on the basis of compromise was erroneous and did not depict the actual position pertaining to the facts of the case---Executing Court was required to pass an order in terms of statement of parties but it omitted to do so and added the words dismissed as withdrawn---Although presumption of correctness was attached to the judicial acts but such presumption was rebuttable and party could point out defect in the judicial record ---Where Court had omitted to pass an order in the manner prescribed by law then the parties could not be penalized for such act or omission of the Court---No act or omission of Court was to be allowed to prejudice rights of parties and Court was bound to rectify error once it was brought to its notice---No prejudice would be caused to the rights of the petitioner/judgment debtor by restoration of execution petition because the decree could still be executed by filing second execution petition---Decree for maintenance allowance was based on recurring cause of action and the rights of the minors were involved whose execution petition could not even be withdrawn by their mother unless it was established on the record that the withdrawal of execution petition was for the benefit of the minors---Appellate Court had cured the defect and High Court ordinarily did not interfere in the order passed by the Court below which had cured illegality---Object of constitu-tional jurisdiction was to foster justice and not to perpetuate illegality---No illegality or infirmity having been noticed in the impugned judgment passed by the Appellate Court, constitutional petition was dismissed accordingly.
Iftikhar Khan and another v. Mst. Amina Bibi and 2 others PLD 2012 Pesh. 159; Muhammad Sadiq v. Federation of Pakistan through Chairman, Pakistan Railways Board 1991 MLD 1; Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834; Iftikhar Baig v. Muhammad Azam and others 1996 SCMR 762; Mst. Nasim Khatoon and others v. Syed Irshad Hussain and others 1991 MLD 1321; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance Islamabad and 2 others PLD 1992 SC 96 ref.
Zahid Mahmood Chaudhry for Petitioner.
2018 Y L R 2668
[Lahore]
Before Muhammad Anwaarul Haq, J
SAJJAD AHMED---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 2 others---Respondents
Writ Petition No. 9113 of 2017, heard on 25th June, 2018.
Foreign Exchange Regulation Act (VII of 1947)---
----Ss. 19 & 23(1)---Offences and penalties--- Mandatory requirements of S. 19(3) of the Foreign Exchange Regulation Act, 1947---Search and seizure---Powers under Foreign Exchange Regulation Act, 1947---Scope---Search, seizure and registration of FIR without obtaining a warrant---Effect---Petitioner in the present case, sought quashment of FIR registered against him under S. 23(1) of the Foreign Exchange Regulation Act, 1947, on the ground that the basis of the FIR was a raid carried out at petitioners' premises without obtaining a warrant---Validity---Federal Investigation Agency conducted raid at the premises of the petitioner in violation of S.19(3) of Foreign Exchange Regulation Act, 1947 as under said section it was mandatory that before carrying out any proceedings, a complaint in writing by a person authorised by the Federal Government or State Bank, supported by statement of said person on oath, was to be made and the same was a mandatory requirement before issuance of warrant by court of competent jurisdiction---Impugned FIR and all consequential proceedings against petitioner were, therefore, liable to be quashed---Constitutional petitioner was allowed, accordingly.
Alam Jan v. FIA Police Station, Gilgit and another 2017 PCr.LJ 69 rel.
Mukhtar Ahmad Awan for Petitioner.
Syed Zafar Abbas Gillani, Deputy Attorney General for Pakistan along with Munawar Iqbal Ranjha, Assistant Director, FIA and Khalid Majeed, ASI/FIA with record for Respondents.
2018 Y L R 20
[Peshawar]
Before Muhammad Younis Thaheem, J
HASEEB AHMAD---Petitioner
Versus
Mst. WAJIHA WAKEEL and 2 others---Respondents
Writ Petition No.1022-P of 2014, decided on 3rd July, 2017.
Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Guardians and Wards Act (VIII of 1890),Ss.12 & 25---Suit for dissolution of marriage and custody of minors by the mother---Wife alleged physical torture by husband---Husband had contracted second marriage---Trial Court decreed custody of minors to the mother---Visitation rights of father---Scope---Welfare of minor---Scope---Father contended that despite his second marriage he was entitled for custody of minors as grandmother of the minors was also living with him---Mother of minors contended that Trial Court had rightly decreed custody of minors to her, however, she was subjected to physical torture by husband which issue was wrongly decided against her---Validity---Record revealed that wife was beaten by husband and due to said beating wife was severely injured and her ear drum was ruptured---Beating had been established from the evidence produced by wife as she had appeared and narrated the facts as alleged in her plaint, mostly about the behavior of her husband and other housemates---Record further showed that she was not confronted in the court in respect of her allegation of physical beating and injury and witness produced by her had also stated about physical torture---Evidence in circumstances established that wife was subjected to physical torture and her ear drum was ruptured and she remained under treatment---Trial Court, while giving findings had ignored rather non-read the evidence in that regard and Appellate Court had also overlooked said aspect---High Court set aside findings on the relevant issue and decided the same in affirmative and observed that both the courts below had rightly decided the question of custody of minors in favour of mother as the mother of husband was an old lady who herself needed extra care so she could not take care of two minor children---Prime consideration in such like cases was the welfare of minors---Husband during subsistence of marriage, had contracted second marriage and did not think about the future of his minor children---Father was allowed to meet the minor once in a month---Family Court/ Executing Court was directed that on application by father custody of both minors could be granted on both the Eids---Constitutional petition was disposed of accordingly.
Captain S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1 ref.
Muhammad Tariq Javed for Petitioner.
Amin-ur-Rehman for Respondent.
2018 Y L R 44
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ
Mst. BANO---Appellant
Versus
Mst. ROBINA and another---Respondents
Cr.A. No.206-M of 2013, decided on 15th May, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 316, 337-L(2) & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-shibh-i-amd, other hurt, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Charge against accused was that she along with co-accused, sharing their common intention, thrown acid on complainant, resulting burns all over her body including from throat to navel, half of the face and both arms had been injured---Victim lady succumbed to the injuries---Record showed that there were no one in the house of complainant except inmates at the time of occurrence---Complainant stated that the acid was thrown upon the victim which resulted burns on her body, but said fact in the statements of Medical Officers had been negated, as she was examined by Medical Board---Evidence of Medical Experts showed that burns on the body of victim-lady were caused by thermal and not acidic burns---Burns were 1-2 months old with scab formation over the wounds and quack remedies were applied on which had masked the identification features further---Statement of Lady Medical Officer who had conducted postmortem of the deceased had given her opinion as member of the Medical Board along with other medical experts which was not in line with the version of the prosecution---Facts and circumstances showed that accused was charged on account of suspicion of the relationship with the deceased being her sister-in-law---Findings of the Trial Court were based on proper application of the medical evidence and other material on record brought by the prosecution---Appeal against acquittal was dismissed in circumstances.
Afzaal Hussain Shah v. The State 1991 PCr.LJ 113; Bakht Zada v. The State 2013 YLR 230, Umer Zaman v. The State 2013 PCr.LJ 708 and Qazi alias Dost Muhammad and another v. The State 2014 PCr.LJ 611 ref.
(b) Criminal trial---
----Benefit of doubt---Principle---Single doubt if found reasonable would be sufficient for the acquittal of accused, because bundle of doubts was not required to be extended to the accused in that regard.
Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Interference--- Scope--- Interference in appeal against acquittal was narrow and limited, as the presumption of innocence of accused would be doubled---Appeal against acquittal could only be interfered with, if it was shown to be perverse, based on gross violation of law, suffering from the errors of grave misreading or non-reading of evidence.
Riaz Masih alias Mithoo v. State 1995 SCMR 1730 rel.
Hafiz Ashfaq Ahmad for Appellant.
Jehangir and Rahim Shah, A.A.G. for Respondents.
2018 Y L R 65
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah, J
KAMRAN MUKHTIAR QURESHI---Petitioner
Versus
The STATE and another---Respondents
Cr. Misc./B.A. No.147-B of 2017, decided on 3rd May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Prosecution case was that the accused-petitioner had issued a cheque amounting to Rs. 22,00,000/-, on account of outstanding amount for purchase of vehicle, which on presentation before the Bank was dishonored due to insufficient amount in the account---Admittedly, there was a transaction between the parties for the purchase of vehicle, and condition of payment was not fulfilled by the accused-petitioner as narrated in the FIR---Decision of Jirga was available on the record of the case signed by the parties and witnesses regarding return of the disputed amount, which made the case one of "business transaction" between the parties---Record showed that a civil suit for rendition of account between the parties was pending in the civil court and accused-petitioner was arrested after filing the said civil suit---Investigation in the case had been completed and trial had commenced---Offence with which the accused-petitioner was charged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused-petitioner was allowed bail in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principle---Observations made in bail order was tentative in nature and would not affect the trial of the case in any manner whatsoever.
Junaid Anwar Khan for Appellant.
Raja Mohammad Zubair Khan and Waji-ur-Rehman Khan Swati for the State.
2018 Y L R 96
[Peshawar]
Before Waqar Ahmed Seth and Abdul Shakoor, JJ
KIFAYAT and 3 others---Petitioners
Versus
SAMI ULLAH and 2 others---Respondents
Criminal Revision No.69-P of 2016, decided on 21st July, 2017.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 265-K, 345, 439 & 561-A---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Compromise---Failure to effect the compromise during trial---Petitioners were aggrieved of the order passed by the Trial Court whereby the application of the petitioners filed under S. 265-K, Cr.P.C. was dismissed, while other accused were acquitted on the basis of compromise---Validity---FIR showed that all the accused had been assigned the same role in the case, which could be termed as an effective role for the murder of the deceased---Genuine compromise at the bail stage had been effected between the parties for an end to the enmity once for all, as both the parties were closely related to each other---As a result of said compromise, petitioners were released on bail and none of the legal representatives of the deceased had pointed his finger on the said compromise at the bail stage---Said compromise showed that all the legal representatives of the deceased had waived off their right of Qisas and Diyat against the petitioners---Legal representatives had got "no objection" on their enlargement on bail and acquittal at the trial stage in the case---Compromise arrived between the parties was not confined to the matter of bail only but the same pertained to the entire case---Complainants and legal representatives of deceased and one injured had undertaken to get the petitioners acquitted from the Trial Court when the stage arrived---Trial Court on account of resiling of legal representatives of the deceased from the compromise at trial stage was not justified to decline the acquittal of petitioners---Circumstances established that compromise effected between the parties at the bail stage ensured to the benefit of accused persons---Complainant, legal representatives of the deceased and injured person could not be allowed to resile from the said compromise---Offences allegedly committed by the petitioners were compoundable, thus petition was allowed and petitioners were acquitted on the basis of compromise.
Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 others 1998 SCMR 466 and Manzoor Ahmed and another v. The State and 2 others PLD 2003 Lah. 739 rel.
(b) Criminal trial---
----Compromise---Principle---Party to compromise could not be allowed to resile from the compromise already acted upon.
Malik Manzoor Hussain for Petitioner.
Naqibullah for Respondent No.1.
Syed Sikandar Hayat Shah, A.A.G. for Respondents Nos. 2 and 3.
2018 Y L R 128
[Peshawar]
Before Muhammad Younis Thaheem, J
SHER ZAMAN---Petitioner
Versus
Mst. MAHZARI and 2 others---Respondents
Writ Petition No.2175-P of 2016, decided on 24th April, 2017.
(a) Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.9---Limitation Act (IX of 1908), Art. 120---Constitution of Pakistan, Arts. 2-A & 199---Suit for recovery of maintenance allowance of wife and daughter---Plaintiff/wife sought education, medical and expenditure of marriage of daughter and claimed maintenance for the last 30 years---Subsistence of marriage---Scope---Limitation, question of---Responsibility of husband towards wife and daughter---Injunctions of Islam---Scope---Petitioner/ husband contended that as wife had not been living in his house so Appellate Court had wrongly decreed past maintenance of wife for the last six years---Validity---Under Islamic law the husband was liable to maintain his wife and children from the very date when marriage was solemnized---Record proved that respondent/plaintiff was turned out of the house and subjected to cruel behaviour by petitioner/defendant so many times but she joined the marital life on the intervention of jirga and again due to his cruel behaviour she was ousted from his house and she started living at her parents' house for the last 30 years and was still there but the petitioner/husband had not divorced her and failed to maintain her and his daughter which was Zulm-e-Azeem to the Muslim who lived under the protection of law---High Court observed that under Art. 2-A of the Constitution, the Quran and Sunnah was the basic law of the land and S.9 of Muslim Family Laws Ordinance, 1961 was a special law which did not prescribe specific period of limitation for past maintenance---Payment of maintenance to the wife by her husband was governed by injunctions of Islam---Petitioner/husband had not,in the present case, paid any maintenance, educational expenses, marriage expenses for his daughter, and maintenance allowance to his wife to meet daily needs like food and clothes etc. which was his duty to bear according to the Injunction of Islam, so, the provisions of limitation prescribed under Art. 120 of Limitation Act, 1908 for recovery of past maintenance was not stricto sensu applicable---Husband was responsible for the maintenance of wife from the day when the Nikah was solemnized and daughter when she was born---Record showed that husband had admitted in the cross-examination that he never paid any amount to his wife or his daughter---Both Courts below had erred by not considering the said admission by the husband while decreeing the past maintenance for wife for past six years only---Husband was bound to pay the maintenance allowance for past 30 years to his wife and expenses claimed in the suit (marriage expenses of daughter etc.)---High Court observed that great injustice had been caused to the wife and daughter of petitioner, so despite the fact that respondent/wife had not challenged the judgments and decrees of the Courts below which might be due to economic constraints of neglected mother and daughter but High Court in exercise of its constitutional jurisdiction under Art. 199, was vested with jurisdiction to provide relief to party with whom injustice had been done, so the judgments and decrees of the both Courts below to the extent were set aside, modified and the suit of plaintiff/respondent was decreed as prayed for.
(b) Constitution of Pakistan---
----Arts. 2-A & 199---Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional jurisdiction of High Court---Scope---Injustice caused to a party not challenging Judgments of the Courts below---Maintenance allowance for wife and daughter of petitioner---Scope---Great injustice had been caused to the wife and daughter of petitioner, despite the fact that respondent/wife had not challenged the judgment of the Courts below which might be due to economic constraints of neglected mother and daughter, High Court, in exercise of its constitutional jurisdiction under Art. 199, was vested with jurisdiction to provide relief to party with whom injustice had been done, so the judgments and decrees of both the Courts below to the extent were set aside, modified and the suit of plaintiff/ respondent was decreed as prayed for.
Tanveer Minhas for Petitioner.
Liaqat Khan for Respondent.
2018 Y L R 148
[Peshawar (Bannu Bench)]
Before Syed Afsar Shah and Ishtiaq Ibrahim, JJ
BADSHAH JAMIL---Appellant
Versus
The STATE and another---Respondents
Cr.A. No.323-B with Murder Reference No.7-B of 2016, decided on 14th February, 2017.
Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46(2)---Criminal Procedure Code (V of 1898), S. 512---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Transfer of evidence recorded during trial of co-accused to the file of accused who was then absconding--- Scope--- Prosecution case was that accused-appellant armed with Kalashnikov fired at the cousin of complainant, due to which he died on the spot---Accused-appellant had contended that Trial Court had taken into consideration the testimony of Medical Officer and Investigating officer under S.512, Cr.P.C. which were recorded in the trial of co-accused and that Trial Court did not pass any formal order regarding the transfer of their statements from the file of co-accused into the present trial---Validity---Record showed that complainant had moved application regarding taking into account earlier statements of Investigating Officer during trial of co-accused, and accused-appellant was absconding at that time---Complainant submitted another application with the request that previous statement of Medical Officer recorded in the trial of co-accused be considered in the trial of accused-appellant---Said applications were kept pending by holding that request would be seen at the time of judgment---Judgment of Trial Court showed that testimony of said two witnesses was taken into consideration against the accused-appellant when he was convicted---Trial Court had neither passed any order regarding transfer of statements of said witnesses to the file of present case nor serious steps were taken to bring on record regarding non-availability of Medical Officer and incapacitation of Investigating Officer---Circumstances established that Trial Court had committed illegality while passing the impugned judgment---Case was remanded by setting aside the conviction and sentences recorded by the Trial Court with the direction to make efforts for the procurement of attendance of said witnesses, failing which, court could order for the transfer of their previous statements in the present case.
Jalaluddin Akbar-e-Azam and M. Rehman for Appellant.
Shahid Hameed Qureshi Addl. A.G. for the State.
Malik Akhtar Nawaz for Respondent.
2018 Y L R 172
[Peshawar]
Before Ikramullah Khan, J
ANWAR KHAN and another---Petitioners
Versus
The STATE---Respondent
Cr. MBA No.1993-P of 2017, decided on 13th September, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.4 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Bail, grant of---Further inquiry---Huge quantity of currency was recovered from the car of accused but there was nothing on record to suggest that the money was derived from any illegal business of Hundi/Hawala or other unlawful means---Mere taking/possessing local money was not a crime until and unless the same was proved to be derived from illegal means---Prosecution could not bring any documentary evidence which could depict that accused persons were dealing in Hundi/Hawala business---Alleged offence did not fall within prohibitory clause of S.497(1,) Cr.P.C.---Nothing was on record regarding previous history of conviction or involvement of accused persons in such like offences---Despite remaining in police custody, accused persons had made no confession before competent Court---Accused persons were no more required for further interrogation---Bail was allowed accordingly.
Arshad Hussain Yousafzai for Petitioners.
Abdul Latif Khan, A.A.G. for the State.
2018 Y L R 183
[Peshawar (Mingora Bench)]
Before Muhammad Nasir Mahfooz, J
MOHAMMAD KARIM DURRANI through Legal Heir---Petitioner
Versus
GHULAM RASOOL through L.Rs. and another---Respondents
W.P. No.469-M with C.M. No.825-M of 2017, decided on 1st August, 2017.
Civil Procedure Code (V of 1908)---
----S. 47---Constitution of Pakistan, Art. 199---Constitutional petition---Laches, doctrine of--- Applicability--- Execution application---Objection---Objection petition against execution application was dismissed---Validity---Petitioner, on one pretext or the other wanted to delay the execution of decree passed in favour of respondent---Petitioner was using delaying tactics to restrain the respondent from enjoying usufructs of the decree---Petitioner had filed constitutional petition after considerable lapse of time---High Court being court of equity, petitioner for equitable relief was supposed to put-forth some convincing material which would have justified the filing of petition after considerable delay---Only vigilant not the indolent could get relief from court of equity or law with regard to his right which had been violated or infringed---Doctrine of laches was applicable in the present case---Constitutional petition was dismissed in limine.
2018 Y L R 212
[Peshawar]
Before Muhammad Ayub Khan, J
ZAHID ALI---Petitioner
Versus
The STATE---Respondent
Cr. Misc. B.A. No.1322-P of 2017, decided on 28th July, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 457---Qatl-i-amd, lurking house trespass or house breaking by night---Bail, grant of---Right of private defence of property---Deceased entered the house of accused for theft at 1:00 a.m. and accused fired at the deceased who died at the spot---Right of private defence of property would extend to cause death in case of house breaking by night---Accused seemed to have acted in private defence of property and was entitled to concession of bail---Bail was granted accordingly.
Hussain Ali for Petitioner.
Syed Qaiser Ali Shah, A.A.G. for the State.
Sahibzada Riazat Ul Haq for the Complainant.
2018 Y L R 265
[Peshawar (Mingora Bench)]
Before Muhammad Younis Thaheem, J
HAZRAT JAMAL---Petitioner
Versus
MUHAMMAD ISHAQ and others---Respondents
C. R. No.332-M of 2015, decided on 30th June, 2016.
(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S.26---Talbs, performance of--- Procedure--- No contradiction existed in the evidence of pre-emptor with regard to Talb-i-Muwathibat and Talb-i-Ishhad---Notice of Talb-i-Ishhad was sent through registered post on proper address and received by the son of pre-emptor---Both plaintiff and his son were residing in the same house and it was unbelievable that son of pre-emptor did not appraise or inform his father with regard to said notice---When a post was sent on proper address, it would be presumed to have been served---Pre-emptor had succeeded to prove Talb-i-Muwathibat and Talb-i-Ishhad---Courts below had rightly held that post was delivered to the vendee at his proper address---Pre-emptor and vendee, in the present case, were contiguous owners to the suit land---Both the parties had same status in circumstances---Suit property was to be divided into two equal shares in between pre-emptor and vendee---Vendee had produced documentary proof and marginal witnesses of sale deed---Market value of suit property was not properly determined by the Courts below---Findings with regard to market value were set aside and judgment and decree were modified to such extent---High Court determined market value as fixed in the alleged sale deed---Half of suit house was decreed in favour of pre-emptor in lieu of half of sale price i.e. Rs. 500,000/----Pre-emptor if had not deposited the said sale price was directed by High Court to deposit the same within one month---Impugned judgments and decrees passed by the Courts below were modified---Revision was allowed in circumstances.
Munawar Hussain's case 2013 SCMR 721 distinguished.
PLD 1989 SC 503 and Yar Muhammad Khan v. Bashir Aamir PLD 2003 Pesh. 179 rel.
(b) Pleadings---
----No one could be allowed to prove a fact which was not pleaded under the law.
Abdul Halim Khan for Petitioner.
Ibadullah Abid and Zia ur Rehman for Respondents.
2018 Y L R 282
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ
Haji QASIM KHAN---Appellant
Versus
KABIR KHAN and 2 others---Respondents
Cr. A. No.33-M of 2011, decided on 15th May, 2017.
(a) Penal Code (XLV of 1860)---
---Ss. 302 & 109---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, abetment---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the daughter of complainant was murdered by her husband/accused at the instance of his brother/co-accused---Motive behind the occurrence was land dispute as the accused, time and again had asked his wife/deceased to seek her share in the property owned by his father---Defence had alleged that deceased committed suicide---Ocular account was furnished by witnesses including complainant---Complainant stated that on the day of occurrence, he received information that his daughter was killed by accused---Complainant rushed to the hospital and found his daughter dead---Complainant had not disclosed as to who informed him about the death of his daughter; however, in his cross-examination he had disclosed that his brother informed him about the demise of his daughter---Claiming to be the eye-witness of the incident, wife of complainant stated that she along with brother of complainant had gone to the house of accused to patch up the dispute in-between husband and wife; during the course of compromise proceedings, deceased went inside the Godown and accused went after her being infuriated holding a pistol and fired at her---Site plan had not revealed any point where the compromise proceedings had taken place---No disclosure of the fact by wife of complainant as to how co-accused had instigated his brother/accused to kill his own wife---Brother of complainant could be the important witness but for reasons best known to the prosecution he had been abandoned--- Non-examination of said material witness had materially affected the prosecution case---Medical report of the deceased suggested that deceased was fired upon from very close range i.e. 2/3 inches---If at all the accused fired upon the deceased from a very close range then there might be some resistance on behalf of the deceased as no one had witnessed the firing---Statement of wife of complainant was also silent to that effect---Facts and circumstances of the case showed that Duppatta was present on the head of the deceased which transpired that the attempt to commit suicide was in-fact made in the relaxed manner---Complainant had failed to point out any misreading or non-reading of the evidence in the case---Appeal against acquittal was dismissed in circumstances.
Saeed Ahmed v. The State 2015 SCMR 710; Afzaal Hussain Shah v. The State 1991 PCr.LJ 113; Farooq Khan v. The State 2008 SCMR 917; Bakht Shad v. the State 2017 PCr.LJ 325; Umar Shahid v. The State 2011 PCr.LJ 701; Zulfiqar Ahmad and another v. The State 2011 SCMR 492 ; Muhammad Ilyas and others v. The State 2011 SCMR 460; Abdul Hameed v. The State 2016 PCr.LJ 89; Nabi Gul v. The State and another 2016 YLR 1013; Jehangir Khan v. The State 1986 SCMR 156 and Allah Dinna v. The State 2003 PCr.LJ 1946 ref.
Darwesh and others v. The State 2014 YLR 2233 rel.
(b) Qanun-e-Shahadat (10 of 1984)--
----Art. 129(g)---Withholding of best evidence---Presumption---If a best piece of evidence, was available with the party, said party if failed to produce the same before the court, presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn that had the said witness been produced, he/she would have been unfavorable to the said party.
(c) Criminal trial---
----Benefit of doubt---Principle---Single circumstance creating reasonable doubt was sufficient for acquittal of the accused.
(d) Criminal Procedure Code (V of 1898)---
---Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Parameters---Different parameters were available to deal with appeal against acquittal and appeal against conviction---In case of acquittal, double presumption of innocence would go in favour of the accused---Even if another view was possible, the view favorable to the accused was to be preferred.
Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.
Muhammad Raziq and Aziz Muhammad for Appellant.
Rahim Shah, A.A.G. and Sahibzada Assadullah for Respondents.
2018 Y L R 298
[Peshawar (Mingora Bench)]
Before Musarat Hilali and Muhammad Nasir Mahfooz, JJ
RESIDENT OF RAGHAIN AND RESIDENTS OF RESHAN GOL BALA through their Representatives---Petitioners
Versus
RESIDENT OF RASHAN GOL PAYEEN through their Representatives---Respondents
W.P. No.495-M of 2015, decided on 10th July, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Maxim 'Ubi Jus Ibi Remedium'(Where there is a right there is a remedy)---Applicability---Petitioners were residents of Chitral District (Khyber Pukhtunkhwa) and were aggrieved of denial to their grazing rights--- Validity--- Petitioners assailed the administrative orders---Such orders were always subject to scrutiny by regular courts as well as High Court in its Constitutional jurisdiction---Petitioners could not be left without remedy in view of legal maxim 'Ubi Jus Ibi Remedium' (where there is a right there is a remedy)---Constitutional petition was entertained in aid of justice for curing or correcting wrong and not to perpetuate injustice---If it was found that substantial justice was done between the parties discretion could not be exercised---Petitioners, were local inhabitants so they had a right to graze their cattle subject to be regulated by authorities and outsiders had no such right---High Court directed authorities to regulate rights of grazing of cattle of local inhabitants and allow not more than three cattle per head per family for purpose of grazing in the state owned pastures---Constitutional petition was allowed accordingly.
Al-Jehad Trust v. Federation of Pakistan PLD 2006 SC 697 and 2017 SCMR 732 ref.
Muhammad Ikram Khan for Petitioners.
Rahimullah and Rafiq Ahmad, Asst. A.A.G. for Respondents.
2018 Y L R 368
[Peshawar]
Before Shakeel Ahmad, J
KHAISTA GUL---Petitioner
Versus
The STATE---Respondent
Crl. Misc. B.A. No.926-P of 2017, decided on 19th June, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 419, 420, 268, 471 & 34---Foreigners Act (XXXI of 1946), S. 14---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Cheating by personation, cheating and dishonestly inducing delivery of property, public nuisance, using as genuine a forged document, common intention, illegal entry into Pakistan, possession transport etc. of intoxicant---Bail, grant of---Further inquiry---Investigating Officer had neither obtained Forensic Science Laboratory report in respect of contraband liquor nor verified forged Computerized National Identity Card of accused from NADRA to ascertain its genuineness or otherwise---Evidence against accused in respect of offence under S.14, Foreigners Act, 1946 needed evaluation and it was yet to be seen as to whether S.14 of Act was applicable under the attending circumstances of case or not---Bail could not be withheld as conviction in advance---Rest of the provisions of law did not fall within the prohibition contained in S.497, Cr.P.C.---Accused was not a previous convict and was not required for purpose of investigation any more---Reasonable grounds existed for believing that matter required further probe into the guilt of accused---Bail was granted accordingly.
Haji Wali Muhammad v. The State 1969 SCMR 233; PLD 1988 Kar. 64 and 2017 MLD 259 rel.
Alam Sher Khan for Petitioner.
Moeen-ud-Din Humayun, A.A.G. for the State.
2018 Y L R 379
[Peshawar ]
Before Waqar Ahmad Seth, J
YASIR---Petitioner
Versus
The STATE and another---Respondents
Cr. M./B.A. No. 1067-P of 2017, decided on 30th June, 2017.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 466---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Medical ground---Report of Standing Medical Board revealed that accused had a prolonged history of chronic psychiatric illness which was schizoaffective in nature and needed treatment---Accused did not understand the nature of his crime at the moment---Trial Court was not right in refusing grant of bail to accused on medical ground---Accused was suffering from mental disorder and incapable of making his defence, therefore, his case was squarely covered under S.466 read with S.497 Cr. P. C.---Bail was granted accordingly.
(b) Constitution of Pakistan---
----Art. 4---Right to be treated in accordance with law---Scope---Every individual within State had right to enjoy protection of law and to be treated in accordance with law---No action with regard to life, liberty, body, reputation or property of any person would be taken except in accordance with law.
(c) Constitution of Pakistan---
----Art. 9---Security of person---Scope---State had responsibility to protect life and liberty of every person residing in its territory.
Hizar Hayat Daudzai for Petitioner.
Syed Qaiser Ali Shah, A.A.G. and Astaghfirullah for Respondents.
2018 Y L R 512
[Peshawar]
Before Rooh-ul-Amin Khan Waqar Ahmad Seth and Lal Jan Khattak, JJ
Dr. KHUSHNOOD ALI BAZ and 111 others---Petitioners
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others---Respondents
Writ Petitions Nos.1685-P and 1850-P of 2017, decided on 11th May, 2017.
Per Rooh-ul-Amin Khan, J; Lal Jan Khattak, J agreeing; Waqar Ahmad Seth, J, dissenting. [Majority view]
(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---
----S. 9 [as amended by Khyber Pakhtunkhwa Local Government (Amendment) Act (X of 2017)]---Constitution of Pakistan, Arts. 18, 25, 32, 37 & 140-A & 199---Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017, vires of---Commercial activities in residential areas were declared to be illegal by the High Court---Legislative enactment allowing commercial activities in residential areas---Legislative competence of legislature---Allegation of mala fide---Scope---Colourable legislation, doctrine of--- Applicability--- High Court had declared commercial activities in the residential area of a specific town in the city as illegal but Provincial Assembly enacted law and allowed the said activities in the residential areas of said specific town---Validity---[Per Rooh-ul-Amin Khan, J (Majority view): Impugned Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017 was not contrary to the judgment of High Court nor did it infringe the Fundamental Rights of the petitioners---Town in question being constituent of the city did fall in the domain of S.9 of Khyber Pakhtunkhwa Local Government Act, 2013---Provincial Assembly was competent to legislate law for the Local Government---Any law if validly enacted could not be struck down on the ground that it was against the whims of some individuals or a class of society---No restriction or prohibition existed on the legislature to legislate on any subject which fell in Provincial legislative competence---Vires of law could only be challenged being violative of any provision of the Constitution but not on the ground that the same nullified the judgment of superior Court---Provincial Government had allowed any land or building in the Town to be used for commercial, educational, Government or semi-Government Offices and for use as residential and commercial activities---Inhabitants of the Town had been given an option to utilize their buildings and lands as per their wishes subject to permission under the Rules---Once an Act enacted by the Provincial Assembly was found within legislative competence of the legislature, it was not for the High Court to embark upon enquiry as to the motive or mala fide behind such legislation---Mala fide could not be attributed to the legislature---Legislature was competent to vary, amend, repeal or enact law in public interest---Vague allegation of mala fide would not be sufficient to strike down legislative enactment---Legislature as a body could not be accused of having passed a law for an extraneous purpose---Impugned legislation was neither arbitrary nor discriminatory---Doctrine of colourable legislation was not applicable where there was ample legislative competence and legislature had proceeded to legislate on a field assigned to it---Legislation could not be assailed as being colourable whatever the reasons behind the legislation---If legislature had constitutional authority to pass a law with regard to particular subject it was not for the court to divine and scrutinize the policy which led to the enactment---Doctrine of colourable legislation could only be pressed into service if legislature had done something beyond the ambit of its authority---If legislature was competent to do a thing directly then mere fact that it attempted to do it in an indirect or disguised manner could not make the legislation invalid---Validity of a legislation by a competent authority could not be challenged merely on the basis of expectation or inference---Courts could not question the wisdom of law-makers---Decision of Legislature could not be invalidated unless there was material to show that it would have irreversible adverse effect on the society---Impugned legislation had been enacted by the Provincial Government within its competence which was not open to judicial review---Constitutional petition was dismissed in circumstances. [Per Waqar Ahmed Seth, J. (Minority view): Constitution had guaranteed the life or liberty of an individual in accordance with law---Right to live and enjoy the private property had been snatched away by S.9 of Khyber Pakhtunkhwa Local Government Act, 2013 as admended by Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017---Legislature was competent to enact law nullifying the judgment of Court but, in the present case, there was no reason or policy on record to introduce the amendment---No mala fide could be attributed to legislation provided law had been enacted in the public interest---Law had been enacted in the present case only for a very limited and particular area even not to the entire city---Impugned enactment merely applying to a particular area could not be said to have passed in the public interest---Persons who had converted the residential buildings into commercial one were liable to be punished---Executive and Legislative Authority had joined hands by giving advantage to the mafia---Judiciary being custodian of Fundamental Rights had the authority to look into as to whether other organs had transgressed their jurisdiction---Judiciary was required to perform to ensure sustenance of system of separation of powers based on check and balance---Executive authorities and legislature were bound to obey the command of the Constitution and act in accordance with law---Doctrine of equality and enforcement of Fundamental Rights were to be examined by the courts of law---Every citizen was to be treated alike in all circumstances---Commercialization of particular town area could not be the policy of Provincial Government---Impugned enactment was defective in its nature as commercialization had been legalized for a period of five years---Legislature could not destroy, annul, set aside, vacate, reverse, modify or impair a final judgment of Court of competent jurisdiction nor could Fundamental Rights guaranteed under the Constitution be abridged by the legislature---Legislature could not affect the inherent attributes of a judgment through a piece of legislation---Mafia had infringed the Fundamental Rights of the residents of locality and High Court had the jurisdiction to look and evaluate the matter---Petitioners had Fundamental Right to enjoy their property for the purpose it was allotted---Policy making was within the domain of Executive and courts was not to interfere in such matter---When policy was violative of Fundamental Rights, court was bound to examine such policy---Impugned legislation was mala fide, void, illegal and against Fundamental Rights of residents of the locality].
[Case-law referred].
Per Rooh-ul-Amin Khan, J
(b) Constitution of Pakistan---
----Art. 25---Equality before law---Scope.
Article 25 of the Constitution prohibits class legislation and not reasonable classification. It does not provide that uniform law should be made for all citizens in the Country. It only provides that amongst the equal, law should be equal. In other words, the like should be treated alike. If there is a well-established class and there is reasonable ground to differentiate them from others then a law can be made only for that particular class and the same cannot be struck down on the ground of person or area specific or violative of equality clause.
The protection of equal law does not mean that all laws must be uniform, rather it means that alike should be treated alike and there should be no denial of any special privilege by reason of birth, sex or creed.
(c) Administration of justice---
----One could not do indirectly which could be done directly.
(d) Interpretation of statutes---
----Where there was a conflict between a primary piece of legislation such as an Act of the Federal/Provincial Assembly with secondary legislation i.e. notification, rules and regulations then former would prevail over the latter.
[Case-law referred].
(e) Colourable legislation, doctrine of---
---Applicability---Scope.
The doctrine of colourable legislation has no application where there is ample legislative competence and the Legislature has proceeded to legislate on a field assigned to it under the Constitution. In such a case, the legislation cannot be assailed as being colourable, whatever the reasons behind the legislation. If the Legislature concerned has constitutional authority to pass a law in regard to a particular subject, it is not for the Courts to divine and scrutinize the policy, which led to the enactment. The doctrine of colourable legislation can only be press into service, where in purporting to legislate on a particular field of legislation, the Legislature has done something, which lies beyond the ambit of its authority and has no rational bearing on the subject of the legislation. The whole doctrine of colourable legislation is based upon the maxim that one cannot do indirectly which one cannot do directly. If a Legislature is competent to do a thing directly, then the mere fact that it attempted to do it in an indirect or disguised manner cannot make the Act invalid. The principle of colourable legislation also does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine revolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a law, the motives which impelled it to act are really irrelevant. On the other hand if the legislature lacks competency, the question of motives does not arise at all.
Qazi Jawad Ehsanullah for Petitioners.
Abdul Latif Khan Yousafzai, Advocate General, KPK, Barrister Syed Mudasser Ameer, Sabah ud Din Khattak, Imtiaz Ali and Sardar Ali Raza for Respondents.
2018 Y L R 578
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan, J
TARIQ---Petitioner
Versus
The STATE and another---Respondents
Cr.M.B.A. No.91-M of 2017, decided on 5th May, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Bail, refusal of---Accused was apprehended just after the occurrence by police---Accused was named in FIR; he was charged for effective firing upon complainant and sharing common intention---Fact that there was no injury on the vital part of body of complainant, would not bring case out of the purview of prohibitory clause of S. 497(1), Cr.P.C. When one party in the cross case had been refused bail, similar treatment would be given to the other party---Bail was refused accordingly.
[Case law referred].
Salman Taj and Asad-ur -Rahman for Petitioner.
Rafiq Ahmad, Astt: Advocate General, Muhammad Raziq and Aziz Muhammad for the State.
2018 Y L R 613
[Peshawar (Mingora Bench)]
Before Muhammad Nasir Mahfooz, J
HABIB ULLAH---Appellant
Versus
SAKHAWAT SHAH and another---Respondents
R.F.A. No.46 of 2011, decided on 14th November, 2017.
Civil Procedure Code (V of 1908)---
----O.VII, R.2---Suit for recovery of money and damages--- Proof--- Plaintiff claimed that he had paid Rs. 1,80,000/- to defendants for arranging visa for a foreign country--- Defendant admitted that he had received Rs. 1,25,000/- from plaintiff and arranged visa but defendant failed to pay balance amount of Rs. 45,000/- ---Trial Court dismissed suit---Validity---Admission and documents produced by plaintiff proved that plaintiff was entitled to decree of Rs. 1,30,000/- but at the same time, High Court accepted that total requisite fee arranging visa was Rs. 1,70,000/- but remaining Rs. 40,000/- was not paid by plaintiff to defendants---Demand of Rs. 45,000/- for providing his services by defendants was genuine and same had to be deducted from total amount of Rs. 1,30,000/- paid to him---High Court reversed findings of Trial Court on such issues and decreed suit in favor of plaintiff to extent of Rs. 1,30,000/- out of which Rs. 45,000/- was to be considered as payable to defendant and could be withheld by him and plaintiff was entitled to receive Rs. 85,000/- --- Appeal was allowed accordingly.
Khan Bahadar Khattak for Appellant.
Muhammad Anwar for Respondents.
2018 Y L R 642
[Peshawar]
Before Muhammad Younis Thaheem, J
AMINULLAH and another---Petitioners
Versus
Mst. ROBINA PERVAIZ and 2 others---Respondents
Writ Petition No.1074/P of 2014, decided on 27th October, 2017.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Qanun-e-Shahadat (10 of 1984), Art. 57---Suit for dissolution of marriage and recovery of dowry articles---Grounds of cruelty and forced abortion---Abortion being actual cause of dispute--- Effect--- Petitioner/defendant contended that decree of dissolution of marriage on the grounds of cruelty and forced abortion could not be passed as he had been acquitted from the criminal case on the allegation of said abortion---Respondent/plaintiff contended that evidence recorded in criminal case could not be referred and relied upon as the same was neither alleged in the written statement nor was produced during recording of evidence before Family Court---Validity--- Petitioner had admitted during cross-examination that actual cause of dispute was issue of abortion---Evidence on record showed that maltreatment, cruelty and forced abortion had been proved---Petitioner had annexed certified copies of evidence recorded in said criminal case but those were not produced during the recording of evidence according to the prescribed procedure in such a case, so the contention had no force and could not be a valid argument that forced abortion was not committed---High Court, declined to decide the constitutional petition by considering evidence which was recorded in a criminal case---No illegality or infirmity having been noticed in the impugned judgments and decrees passed by the two Courts below---Constitutional petition was dismissed accordingly.
Mitthulal and another v. State of Madhya Pardesh AIR 1975 SC 149 ref.
Muhammad Ibrahim Khan for Petitioners.
Muhammad Sajid Khan for Respondents.
2018 Y L R 665
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ
Mst. ROBINA and others---Petitioners
Versus
DISTRICT POLICE OFFICER and others---Respondents
Writ Petition No.490-A of 2017, decided on 24th July, 2017.
Penal Code (XLV of 1860)---
----Ss. 436 & 34---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Mischief by fire or explosive substance with intent to destroy house etc., common intention---Constitutional petition for quashment of proceedings---Alternate remedy---Scope---Factual controversy---Effect---Counter First Information Reports---Both the parties sought quashment of cases registered against them---Subject matter in both the petitions was one and the same (cattle shed which was allegedly set on fire)---Both the parties were claiming its ownership and had leveled allegations against each other in their respective FIRs regarding its setting on fire---Factual controversies involved in the present petitions could not be resolved in constitutional jurisdiction by High Court nor deviation from the normal procedure of law as provided under the Cr.P.C. could be made---Alternate remedies provided under the law were available to the petitioners, thus constitutional jurisdiction could not be exercised---High Court pointed out the required procedure to be adopted by the parties and dismissed the constitutional petitions in limine.
Syed Asif Shah for Petitioners.
Nemo for Respondents.
2018 Y L R 738
[Peshawar (D.I. Khan Bench)]
Before Muhammad Ayub Khan, J
MALIK and another---Petitioners
Versus
The STATE---Respondent
Cr.M.B. No.75-D of 2017, decided on 16th March, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Complainant (deceased) had alleged that accused persons fired at him early in the morning when he was present at his land resultantly he was injured---Motive was dispute over land---Accused persons were directly charged in FIR by deceased himself while injured---Postmortem report showed two entry wounds, ocular evidence and motive prima facie supported version of prosecution---Accused persons remained fugitive from law for sufficient long time i.e. for more than seven years which disentitled them for grant of bail---All the factors, on tentative assessment, connected accused with commission of offence entailing capital punishment---Bail was refused accordingly.
Dildar Ali v. The State 1999 SCMR 1316; Yasin and 3 others v. The State and another PLD 2001 Pesh. 144; Sher Zaman alias Alamsher v. The State 1992 PCr.LJ 409; Zaigham Ashraf v. The State and others 2016 SCMR 18; Muhammad Aslam v. The State and others 2016 SCMR 1520; Ikhtiar and 2 others v. The State and another 2016 YLR 2443; Muhammad Sarwar alias Bao v. State and another PLJ 2016 Cr.C (Lahore) 483; Amrez and others v. The State and another 2016 PCr.LJ Note 49; Siraj v. The State and another 2016 PCr.LJ Note 36; Rehmanullah v. State and another PLJ 2016 Cr.C Peshawar 908 and Aziz Khan v. State and another 2016 SCMR 1792 ref.
Sanullah Khan Gandapur for Petitioner.
Adnan Ali Asstt. A.G. for the State.
Saif-ur-Rehman Khan and Inamullah Khan Kandi for the Complainant.
2018 Y L R 761
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah, J
MUHAMMAD AZEEM---Petitioner
Versus
Mst. NASREEN BIBI and others---Respondents
Writ Petition No.39-A of 2017, decided on 26th July, 2017.
Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Suit for maintenance allowance of minors by mother---Application for production of additional evidence by father---Non-mentioning of said witnesses in the list filed with written statement---Effect---Father contended that he could be allowed to produce additional evidence of the witnesses which could not be included in the list earlier---Validity---Record revealed that father had submitted list of twelve witnesses along with his written statement, however, he produced only three witnesses and later he submitted an application for recording the statement of two persons and requested the Court to allow him to produce and record their statements in support of his case---Said application was filed by the father after lapse of more than two years, he had not shown any plausible reason or ground for not mentioning the names of said persons in the list of witnesses submitted by him---High Court observed that father's evidence had been closed and the case was pending for final arguments of the parties, therefore, at such belated stage the application for production of additional evidence would not serve any useful purpose rather said application was an attempt to further delay the decision of the case which was not desirable under the law---Constitutional petition being bereft of merit was dismissed accordingly.
Khurshid Alam Khan for Petitioner.
Malik Wali Sultan for Respondents.
2018 Y L R 779
[Peshawar]
Before Shakeel Ahmad, J
Syed SARDAR ALI---Petitioner
Versus
SAID ALI and 14 others---Respondents
Civil Revision No.220/P of 2016, decided on 16th October, 2017.
Civil Procedure Code (V of 1908)---
----O. IX, R. 13---Limitation Act (IX of 1908), Art. 181---Ex parte decree, setting aside of---Limitation---Petition for setting aside of ex parte decree was dismissed by the Trial Court but Appellate Court allowed the same---Validity---Respondents-defendants appeared before the Trial Court and contested the suit by filing their written statement and thereafter absented themselves---Period of limitation for setting aside ex parte decree was three years and not thirty days in circumstances---Appellate Court had rightly appreciated the legal position---Law even otherwise envisages determination of disputes on merits rather on technicality---No material irregularity or any jurisdictional error or defect had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in circumstances.
Master Abdul Basit and another v. Dr. Saeeda Anwar 2013 YLR 375 and Khayal Badshah v. Afzal Khan and others PLD 2015 Pesh. 59 ref.
Messrs Rehman Weaving Factory (Regd) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; WAPDA v. Muhammad Hayat Khan and others PLD 1986 Pesh. 81 and Fayyaz Rasool v. Government of N.-W.F.P. 2001 CLC 1976 rel.
Syed Khursheed Ali for Petitioner.
Nemo for Respondents. (Already placed ex parte).
2018 Y L R 809
[Peshawar]
Before Rooh-ul-Amin Khan and Lal Jan Khattak, JJ
RAJAB ALI---Petitioner
Versus
The STATE and others---Respondents
Eh. Criminal Appeals Nos.02-P and 03-P of 2016, decided on 11th April, 2017.
(a) National Accountability Ordinance (XVIII of 1999)---
----S. 9(a)(v)---Possessing assets beyond known sources of income---Prosecution case was that the accused while serving in police department had accumulated moveable and immoveable assets/properties through illegal means/modes at his own name, valued Rs. 1,46,88,056/----Accused was arrested by the NAB authorities---Accused, during investigation, produced agreement/affidavit to the investigation team of NAB in respect of sale of his ancestral property measuring eighty kanals and ten marlas land in favour of co-accused in lieu of Rs. 1,40,00,000/---Said affidavit was apparently attested by Tehsildar, but he denied his signature as attesting officer over the same---Stance of the accused was denied by the revenue hierarchy as the accused and his family had got 120 kanals ancestral cultivable property---Accused failed to provide any cogent proof of money trail from co-accused who being his close friend had introduced himself as purchaser of eighty kanals ancestral property of the accused---Record showed that father of accused was ancestral owner of 106 kanals land in three different Mozajat---Naib Tehsildar/ witness admitted that after demise of father of accused, his property was devolved upon sons including accused and his sisters, who simultaneously, gifted their shares in favour of their brothers---Factum of joint residence/dwelling of the accused and his brothers had been squarely proved by the prosecution through the evidence of various witnesses including Investigating Officer and Tehsildar---Fact that two brothers of accused were serving in foreign country and getting handsome salaries had been proved through the prosecution evidence---Record transpired that the net saving of the accused had not been assessed by the NAB authorities as certain items had been left unattended in determination of assessment i.e. the price of the straw heaps, the trees and branches planted in the lands of the accused, more particularly, the income assessment of the orchards of Pomegranates over an area of five jareebs as admitted by the Patwari Halqa and Tehsildar/witnesses, during the year under assessment---Saving of father of the accused till his death had not been assessed---Prosecution evidence showed that after the death of the father of accused, the agricultural property remained in his name till 2012 and during that period, remained under their joint cultivation---Inheritance mutation for the first time was attested on 28.3.2012 for the purpose of actualizing the sale transaction with co-accused---If the income of the accused from his salaries since 1994 till 2012 and his due shares in the landed property along with joint income of his brothers were taken into consideration, the amount of Rs. 1,46,88,056/- being spent on purchase of the disputed properties and construction thereon was justifiable, even if the amount of the disputed sale of eighty kanals land was excluded from consideration---Statement of Tehsildar/ prosecution witness, would be sufficient to prove the transaction in favour of co-accused---Statement of prosecution evidence showed that castes of accused and co-accused were at daggers drawn due to landed and other disputes---Allegations against the accused that in order to justify his ill-gotten money he had maneuvered the sale transaction of eighty kanals land in favour of co-accused, but it did not appeal to a prudent mind that accused and co-accused were in league in the offence---Accused and his brothers had no relation with co-accused and both had different castes, and that too, at daggers drawn would take a risk to deprive them from a huge chunk of land measuring eighty kanals by entering into a fabricated transaction---Investigating Officer while conducting investigation had not recorded statements of the marginal witnesses of the disputed deed, purposely, because their statements were favouring the stance of the accused persons---Record showed that on the day of execution of the sale deed, co-accused had also entered into various other transactions with different people of the locality---Sale deed in that regard taken by the Investigating Officer was sufficient proof of the said fact---Sufficient evidence was available on record which proved the strong financial status of co-accused and the way of payment in cash, therefore, there was no need to look for money trail---Defence witness/graphologist had opined that the signature over the disputed sale deed to be that of Tehsildar, which would be more authentic to be relied upon---Circumstances established that prosecution had failed to produce the required evidence to prove the alleged ill gotten money to be disproportionate to the known source of income of the accused and the alleged abetment and joining hands of co-accused with him in the sale transaction---Accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Amrood Khan v. The State 2002 SCMR 1568; Saeed Ahmad v. The State PLD 2003 SC 389 and Ashfaq Khalid v. The State PLD 2005 Quetta 1 rel.
(b) Criminal trial---
----Investigation---Object---Investigation does not mean to collect evidence for the prosecution---Main aim and object of the investigation is the collection of evidence from both the sides of prosecution and defence.
Barrister Mudasir Ameer for Appellants.
Zair Nawaz Khattak, Special Prosecutor for NAB for Respondents.
2018 Y L R 856
[Peshawar (Bannu Bench)]
Before Abdul Shakoor, J
SAHIB SHAH---Petitioner
Versus
MEMBER BOARD OF REVENUE, KHYBER PAKHTUNKHWA, PESHAWAR and others---Respondents
Writ Petition No.66-B of 2011, decided on 14th November, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Partition of land by the revenue officer---Member Board of Revenue decided two revision petitions having different facts through verbatim orders---Validity---Both the orders passed by the Member Board of Revenue were same and did not reflect any difference even of a word---Member Board of Revenue had committed illegality while passing the impugned orders---If the impugned order had not been passed fairly, justly and rightly in accordance with law, and no remedy for challenging such order was available, Constitutional petition was maintainable---Petitioner had no alternate remedy to assail the impugned order passed by the Member, Board of Revenue---Impugned order was set aside and cases were remanded to Member, Board of Revenue for decision afresh---Constitutional petition was allowed in circumstances.
Province of Punjab through Collector Sargodah v. Muhammad Bakhs 2012 SCMR 664; Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 4521; Province of Punjab through Collector District Khoshab, Jauharabad and others 2007 SCMR 554; Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083 and Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1978 SC 447 rel.
Salah-ud-Din Khan Gandapur for Petitioner.
Rustam Khan Kundi and H. M. Hanif for Respondents.
2018 Y L R 884
[Peshawar (D.I. Khan Bench)]
Before Ijaz Anwar, J
IQBAL HUSSAIN and 4 others---Petitioners
Versus
MEMBER, BOARD OF REVENUE and others---Respondents
W.P. No.481-D of 2015 with C. Misc. No.505-D/2015, decided on 19th December, 2017.
Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---
----Ss. 135, 164, 167 & 179---Khyber Pakhtunkhwa Board of Revenue Act (XI of 1957), S. 7---Partition of land by Revenue Officer---Deputy District Officer (Judicial) accepted report of commission with regard to mode of partition of suit land against which appeal was filed---District Officer/ Collector dismissed the appeal against the said order---Member, Board of Revenue remanded the case to the District Officer (Revenue) with the direction to decide the appeal afresh on merits and in accordance with law---Validity---Orders passed by the Board of Revenue in revision had attained finality---Board of Revenue being apex body in the revenue hierarchy had been empowered for correcting any order or decision while exercising powers under S.164 of Khyber Pakhtunkhwa Land Revenue Act, 1967---Board of Revenue had only condoned the delay and set aside the orders passed by the lower forums and remanded the matter to the District Officer (Revenue) for decision afresh---Legal objections would be available and could be raised by both the parties before the said Officer---No legal error or jurisdictional defect had been pointed out in the impugned order passed by the Board of Revenue---Constitutional petition was dismissed in circumstances.
1986 SCMR 962 ref.
2015 MLD 405; PLD 2016 Pesh. 49; 2015 CLC 14 and 2015 YLR 788 distinguished.
Mst. Bas Khana and others v. Muhammad Raees Khan and others PLD 2005 Pesh. 214; Abdullah and others v. Muhammad Haroon and others 2002 CLC 1419 and Syed Lal Hussain Shah v. Lal Muhammad and 5 others 2005 CLC 1076 rel.
Malik Muhammad Asad for Petitioners.
Adnan Ali AAG for Respondent No.1.
Rustam Khan Kundi for Private Respondents.
2018 Y L R 933
[Peshawar (Abbottabad Bench)]
Before Syed Afsar Shah and Ishtiaq Ibrahim, JJ
ABDULLAH NASIR alias JUNEJO---Petitioner
Versus
The STATE and another---Respondents
Criminal Appeal No. 90-A with Murder Reference No. 7-A of 2013, heard on 22nd March, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with absconding co-accused gave Churi blows to the son and nephew of complainant and they died---Motive for the crime was stated to be that accused persons were suspecting one of the deceased to have relations with their cousin---Ocular account was furnished by the complainant, who was father of deceased and uncle of other deceased and brother-in-law of the complainant---Prosecution case was that both the said witnesses were present when the deceased were slayed---Said witnesses neither tried to interfere in the grappling/fight nor rescued the deceased from the clutches of accused persons---Said witnesses, after the tragedy, did not try to apprehend the accused persons or even tried to forbid them from the commission of the offence, when the accused were not armed with any firearms---Said aspect of the case created doubt regarding the presence of the eye-witnesses at the relevant time---Arrival of the witnesses at the place of occurrence at the relevant time from a place situated at a distance of four kilometers would make them chance witnesses---Said witnesses admitted in their cross-examination that they arrived at the place of occurrence per chance otherwise, they would have not witnessed the occurrence---Record showed that nothing incriminating had been recovered by the investigating agency during the course of investigation, which could prove the involvement of the accused with the commission of offence---Circumstances established that prosecution had failed to prove the guilt of accused beyond any shadow of doubt, benefit of which, would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Shahzad Tanveer v. The State 2012 SCMR 172; Meharaj Singh v. State of U.P. 1995 PSC (Crl.) 727 and Abid Ali and 2 others v. The State 2011 SCMR 208 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---First Informa-tion Report was chalked out after about five hours of the alleged report---Effect---Record showed that Murasila was drafted in the case at 6.45 p.m. wherein the time of occurrence had been mentioned as 5.00 p.m.---First Information Report was chalked out at the police station at 11.40 p.m., after five hours of the alleged report which was made in the hospital for which, there was no reasonable justification---Report of complainant could not be treated as genuine document in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Motive not proved---Effect---Motive for the crime was stated to be relation of one deceased with cousin of accused party---Nothing on record to suggest that the motive alleged by the prosecution was taken to its logic end by producing some tangible evidence---Motive was not proved in circumstances.
(d) Criminal trial---
----Absconsion of accused---Effect---Mere abscondence would not entail penal consequences against the accused.
(e) Criminal trial---
----Benefit of doubt---Single doubt if found reasonable for a prudent mind, would entitle the accused to its benefit.
Muhammad Ilyas v. The State 1997 SCMR 25 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.
Qazi Shams-ud-Din and Saeed Ahmad Awan for Appellants.
Raja Muhammad Zubair, A.A.G. for the State.
Fazal-i-Haq Abbasi for the Complainant.
2018 Y L R 982
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah, J
ZAHEER AHMED---Petitioner
Versus
The STATE and another---Respondents
Cr. Misc. B.A. No.405-A of 2017, decided on 10th July, 2017.
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, grant of---Further inquiry---Complainant after satisfaction about genuineness of ownership of property entered into alleged purchase of property and paid Rs. 4,500,000/- cash and cheque of Rs. 1,500,000/- to the accused persons---Complainant before lodging the FIR against accused persons had obtained affidavits and promissory notes of Rs. 14,300,000 from them, which was double than that of the amount in question which same created serious doubt---First Information Report was lodged after a delay of forty five days---Investigating Officer had not recorded the statements of witnesses of affidavits as well as of Bank Manager regarding confirmation of encashment of cheque of Rs. 1,500,000/ by the accused---Alleged offence did not fall within prohibitory clause of S.497 Cr.P.C.---Investigation in the present case, was complete and accused persons were not required for further investigation---No useful purpose would be served by keeping accused behind the bars---Bail was granted accordingly.
Zafar Iqbal's case 2009 SCMR 1488 and Riaz Jafar Natiq's case 2011 SCMR 1708 rel.
Muhammad Arshad Awan for Petitioner.
Amina Imam for the State.
Muhammad Shafiq Awan for Respondents.
2018 Y L R 993
[Peshawar]
Before Qalandar Ali Khan, J
KHAN ZEB---Petitioner
Versus
The STATE---Respondent
Criminal Miscellaneous Bail Application No.30-P of 2018, decided on 19th January, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Accused was neither shown as owner of vehicle in question, nor driving license had been recovered from him at the time of his arrest, when he was allegedly occupying the driving seat---Role assigned to accused was similar to two co-accused, who had already been released on bail---Role of accused would also be subject to further inquiry making accused entitled to the concession of bail---Mere presence of accused on the driving seat would not, prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics in the vehicle in question---Accused was admitted to post arrest bail, in circumstances.
2013 PCr.LJ 1160 ref.
Arshad Hussain Yousafzai for Petitioner.
Arshad Ahmed Khan, AAG for the State.
2018 Y L R 1042
[Peshawar (Bannu Bench)]
Before Ishtiaq Ibrahim, J
GHULAM ALI---Petitioner
Versus
The STATE and another---Respondents
Cr.Misc. B.A.No.195-B of 2017, decided on 31st May, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 404 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, common intention---Bail, grant of---Further inquiry---During investigation several persons from the locality appeared before the Investigating Officer and alleged false implication of accused particularly the eye-witness of the occurrence and the persons with whom accused was present at the alleged time of occurrence---Investigating Officer placed accused's name in column No. 2 of the challan---Opinion of Investigating Officer was not binding upon the court and could not be made basis for granting bail---Court would examine the material available on file and form opinion---Mode and manner of occurrence, disparity in medico legal examination of injured and time of report could be resolved after recording of evidence---Accused could not be kept in jail as punishment merely on the ground that he was directly charged for an offence falling under prohibitory clause of S. 497, Cr.P.C., because a mistaken relief of bail might be repaired by convicting the accused if proved guilty but no proper reparation could be offered for his unjustified incarceration albeit his acquittal in the long run---Case of accused required further inquiry under S. 497(2), Cr.P.C.---Bail was granted accordingly.
Mohammad Ilyas v. Ijaz Mohammad Butt and another 1992 SCMR 1857 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 173---Police report---Scope---Accused once declared innocent during the course of investigation and placed in column No. 2 of challan, he was no more an accused person nor he could be treated so, till the submission of challan and Trial Court takes cognizance for his trial.
Mohammad Ilyas v. Ijaz Mohammad Butt and another 1992 SCMR 1857 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 173---Police opinion---Scope---Opinion of Investigating Officer was not binding upon the court and could not be made basis for granting bail---Court would examine the material available on file and form its opinion.
Rasheed Khan Dirma Khel, and Inam Ullah Khan Mandra Khel for Petitioners.
Hujat-Ullah Khan for Respondent No.2.
Shahid Hameed Addl: AG. for the State.
2018 Y L R 1067
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
IMTIAZ ALI---Appellant
Versus
The STATE---Respondent
Cr. Appeal No.837-P of 2016, decided on 13th October, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Penal Code (XLV of 1860), Ss. 170, 419, 420, 468 & 471---Possession of narcotics, personating a public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document---Appreciation of evidence---Benefit of doubt---Prosecution case was that a vehicle driven by the accused, was stopped on the main road, taken to the police station, accused was interrogated there and a plastic sack in a carton, tagged on to bonnet of the vehicle above the engine containing ten packets of heroin, weighing one kilogram each, total ten kilograms was recovered---Reportedly, a card of intelligence agency from the pocket of accused was recovered, which was found fake on verification---Record showed that no recovery was made from the motorcar after it was stopped for checking but at the police station in the presence of police officials other than those present with the complainant at the time of stopping of the vehicle, which made the recovery and the case against the accused doubtful---Testimony of marginal witness was not worthy of reliance in view of his own admission that he was not the eye-witness of the occurrence---Absence of independent witnesses from the general public in spite of prior information to the complainant; and non-production of police officials present with the complainant certainly cast doubt on recovery of the contraband from the car at the police station---Covering of considerable distance by the vehicle, generating heat from the engine, would make the recovery more doubtful, for the reason of heroin changing its very nature in the face of so much heat---Nothing was on the record to establish nexus of the accused with the recovered narcotics, as neither evidence was brought on the record to show him either owner of the car or its driver---Accused was acquitted from the charge under S.170 Penal Code, 1860 by the Trial Court---State did not file appeal against the said acquittal, which would not only shake the FIR but also would raise question about case and evidence of the prosecution against the accused---Circumstances established that prosecution had failed to prove recovery of narcotics from the possession of the accused, thus accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotics---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Record showed that alleged recovery of contraband was made on 12.8.2015 but the samples were received in the Forensic Science Laboratory for chemical analysis after five days on 17.8.2015---No evidence was available to prove safe custody of the samples from the date of recovery upto their receipt in the Forensic Science Laboratory---Prosecution produced police official/witness in that regard, who stated that he did not remember the date on which the samples were handed over to him---Delay of five days in sending the sample for examination would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.
(c) Criminal Procedure Code (V of 1898)----
----Ss. 265-C & 161----Supply of copy of statements to accused---Prosecution witness, who kept the contraband till its receipt by the Forensic Science Laboratory, had not been examined by the Investigating Officer---Non-provision of a copy of his statement under S.161, Cr.P.C. to the accused in compliance with the mandatory provision of S. 265-C, Cr.P.C. would deprive the accused of his valuable right of preparing his defence accordingly.
Noor Alam Khan for Appellant.
Mian Arshad Jan, A.A.G. for the State.
2018 Y L R 1101
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
SHAH ZEB---Appellant
Versus
FAKHR-E-ALAM and another---Respondents
Cr. A. No.273-P of 2012, decided on 25th September, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S. 512---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Statement of relevant fact by person who was dead or could not be found was relevant---Recording of evidence in absence of accused---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Prosecution case was that accused along with co-accused persons had assaulted on complainant and his brother, made firing with their pistols, as a result brother of complainant got hit and died on the spot while complainant escaped unhurt---Motive for the incident was money dispute between co-accused and deceased---Complainant and his brother were stated to be eye-witnesses of the incident---All the three accused went into hiding and resultantly proceedings under S. 512, Cr.P.C. were initiated against them, wherein, statements of eye-witnesses were recorded---Complainant of the case had died and his brother/eye-witness was also not traceable---Legal heirs of the deceased had not appeared on behalf of the complainant's side---Record showed that none of the eye-witnesses appeared before the Trial Court against the accused---Prosecutor had moved application for transferring the statements of eye-witnesses recorded during the course of proceedings under S. 512, Cr.P.C. on the ground that their attendance could not be procured---Said application was accepted and statements of eye-witnesses were transferred to the file of the case---First Information Report showed that deceased was fired at by all the three accused persons with their respective pistols but medical evidence showed that the four wounds sustained by the deceased were of same dimensions (1.5 x 1.5)---Similarity dimensions of the wounds showed that firing at the deceased was one person's job---Investigating Officer had collected two empties of 30-bore pistol from the spot and sent the same to Forensic Science Laboratory for ascertaining whether same were fired from one or more weapons---Report of Forensic Science Laboratory showed that both the crime empties had been fired from same weapon, which transpired that the firing was made by one person---Said aspects of the case showed that both the eye-witnesses were not present at the spot---Even, if it was presumed that they were present at the spot, but in view of medical evidence of the victim and Report of Forensic Science Laboratory, it could be held that they had given exaggerated account of the occurrence, thus their evidence could not be accepted---Confession of accused was recorded on the Third day of his arrest but same went quite contrary to what the complainant had alleged in the FIR---Record indicated that retracted judicial confession was recorded after about nine years of the incident and after about three days of the arrest of accused---No sanctity could be attached to such confession because it did not appeal to prudent mind that after about nine years, all of a sudden, a culprit would confess his guilt---Retracted judicial confession for its not being voluntary one and getting no corroboration from circumstantial aspect of the case, was not safe to rely upon---Circumstances established that prosecution had not proved its case against the accused beyond any reasonable doubt, the benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
(b) Criminal Procedure Code (V of 1898)---
----S. 512---Statement of witness had been recorded in absentia---Effect---Sanctity could not be attached to the statements of witnesses recorded under S. 512, Cr.P.C. unless strong independent corroboratory evidence was brought by the prosecution in support of such deposition.
(c) Criminal trial---
----Benefit of doubt---Principle---If a single doubt accrued in the prosecution case, benefit of the same would be given to the accused.
Barrister M. Zahur-ul-Haq for Appellant.
Muhammad Riaz Khan Paindakhel, A.A.G. for the State.
Nemo for the Complainant.
2018 Y L R 1168
[Peshawar]
Before Lal Jan Khattak and Muhammad Ibrahim Khan, JJ
HIKMAT SHAH---Appellant
Versus
BAKHTIAR KHAN and another---Respondents
Criminal Appeal No.634-P of 2016 with Murder Reference No.16-P of 2016, decided on 16th November, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged for the murder of his wife/daughter of complainant---Motive for the crime was stated to be soaring relations between the couple---Record showed that there was no eye-witness to the occurrence but circumstantial evidence of the case connected the accused with the commission of offence---Deceased lady was murdered in her house, and after nomination of her husband in the case as accused, he went into hiding and remained fugitive from law for fifty one days---Accused had not offered any explanation for avoiding his lawful arrest in the case---Record transpired that the accused had parents, seven sons and three daughters and he was supposed to be in touch with his family members about the affairs of his house but he had no liaison with them---Accused did not attend the funeral of his wife---Such conduct of accused showed him as culprit in murder of his wife---Accused had taken the plea that his wife had committed suicide but said stance was baseless as the medical examination of the victim belied the said version---Nothing was available on record, which could show that the deceased had become fed up of her life and wanted to get rid of herself and that the complainant had falsely implicated the accused for the murder of his daughter---Circumstances established that prosecution had proved its case against the accused of his involvement in the case---Accused had minor sons and daughters, who had already lost their mother and if they were further deprived of their father, in that eventuality they would become shelterless, which was a mitigating circumstance to award lesser punishment---Conviction was maintained, but sentence of accused was altered from death to imprisonment for life in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Pistol 30-bore was recovered from the possession of the accused at the time of his arrest---Investigating Officer had recovered one empty of 30-bore from the crime spot which was sent to Forensic Science Laboratory---Report of Forensic Science Laboratory had affirmed that the 30-bore crime empty was fired from the said 30-bore pistol---Recovery of weapon of offence from accused could be relied upon in circumstances.
Shakeel Ahmad Khan for Appellant.
Syed Bilal Jan Bacha for the Complainant.
Rab Nawaz Khan, A.A.G. for the State.
2018 Y L R 1223
[Peshawar]
Before Waqar Ahmad Seth and Ishtiaq Ibrahim, JJ
STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant
Versus
GULFAM HUSSAIN and another---Respondents
Criminal Appeal No. 310-P of 2016, decided on 20th September, 2016.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Allegation against accused persons was that they committed murder of brother of complainant and other family members---Trial Court after recording statements of complainant and Investigating Officer, acquitted the accused persons under S.265-K Cr.P.C.---Validity---Admittedly, respondents/accused persons had not been directly charged in the FIR for commission of offence---Accused persons/respondents were named by the complainant in his supplementary statement recorded under S.164, Cr.P.C. before the Magistrate---No source regarding involvement of respondents/ accused persons in the commission of offence had been disclosed---No eye-witness had been brought on record by prosecution which could depict that the deceased were killed by the accused persons/respondents in his presence---Complainant was not eye-witness of the occurrence---Complainant exonerated the accused persons/ respondents from commission of offence by denying his supplementary statement nor he charged the accused persons for commission of offence in his court statement---Complainant had stated that accused persons were implicated by police at their own on the basis of suspicion---Investigating Officer admitted in his cross-examination that he did not find any eye-witness of the occurrence and further deposed that he had suspicion regarding involvement of accused persons in the offence as there were rumors in the area that accused persons had killed the deceased persons---Investigating Officer did not produce any person from the area who had allegedly conveyed such information to him---Accused persons had made no confession before the competent court---No incriminating article/weapon of offence had been recovered from the possession of accused persons or at their instance/pointation---Circumstances established that no ocular account or circumstantial evidence was available against accused persons and the case of prosecution was based on rumors and suspicion, which made the case of prosecution doubtful---Appeal against acquittal was dismissed in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 265-K---Acquittal of accused at any stage--- Scope--- Recording of the prosecution evidence was not a condition before taking action under the said provision---Use of the expression "at any stage" of the case was indicative of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a stage after recording some proceedings and/or even, it could be later stage as well.
State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 rel.
(c) Criminal trial---
----Nomination of accused on the basis of suspicion---Scope---Mere naming of accused on the basis of suspicion and rumor was not sufficient to establish his guilt, particularly, when the same had no corroboration from ocular or circumstantial evidence.
Ms. Abida Safdar for Appellant.
Nemo for Respondents.
2018 Y L R 1231
[Peshawar (Bannu Bench)]
Before Abdul Shakoor, J
ASLAM KHAN MARWAR---Petitioner
Versus
Mst. ATIA GUL and 2 others---Respondents
W.P. No.534-B of 2017, decided on 25th September, 2017.
Family Courts Act (XXXV of 1964)---
----S. 5, Sched., Ss.7(ii) & 12---Suit for recovery of maintenance allowance, dower and dowry articles---Application for additional evidence---Scope-Petitioner/ defendant contended that appearance of Secretary Union Council was necessary for just adjudication of the dispute---Respondent/plaintiff contended that instead of producing his evidence petitioner was applying delaying tactics to enhance agony of plaintiff---Validity-Record revealed that suit was instituted in the year 2014 but it had not been decided yet---Under the provision of S. 12 of the Family Courts Act, 1964, it was mandatory for the Court to decide suit positively within six months from the date of its institution---Courts below had rightly declined the petitioner's prayer for the production of documents at later stage, which had not been referred to in the memo of written statement or Schedule appended thereto, mentioning of the same in terms of S.7 of Family Courts Act, 1964 being mandatory---Family Court, legally, was not permitted to allow additional evidence or to add names of witnesses in the Schedule---Constitutional petition was dismissed accordingly.
Haji Mir Zali Khan for Petitioner.
Younis Ali Khan Marwat for Respondents.
2018 Y L R 1256
[Peshawar]
Before Rooh-ul-Amin Khan, J
SAID AFZAL and another---Appellants
Versus
The STATE and others---Respondents
Crl. Appeal No.253-P of 2017, decided on 17th October, 2017.
Foreign Exchange Regulation Act (VII of 1947)---
----Ss. 4 & 23---Foreigners Act (XXXI of 1946), S. 14---Illegal business of foreign currency, contravention of the provisions of Foreigners Act, 1946---Appreciation of evidence---Prosecution case was that on search of a car, two packets of foreign currency were recovered beneath the driver's seat---Driver and the co-accused failed to offer any justification for possessing the recovered foreign currency---Accused, during investigation, appeared before the Investigating Officer and claimed ownership of the recovered foreign currency---Record showed that accused persons had not denied the recovery of foreign currency in the mode and manner as alleged by the prosecution---Accused had alleged that he had received the recovered foreign currency from a person as sale consideration in lieu of his business---Said person appeared as prosecution witness and had fortified the stance of accused by deposing that he had paid the sale consideration of business to accused in foreign currency---Such stance of the accused was also verified by the Investigating Officer---Investigating Officer had mentioned in the challan that the stamp-paper produced by the accused about selling of his business to prosecution witness was found as correct---No oral or documentary evidence had been brought on record by the prosecution to prove that accused were buying, borrowing from or selling or lending to or exchanging the recovered foreign currency with any unauthorized person---Circumstances and facts of the case showed that it was a simple case of recovery of foreign currency from the possession of a foreigner---Prosecution case was not that the accused were buying, borrowing from or selling to or lending to or exchanging the recovered foreign currency with any unauthorized person, thus S. 4 of the Foreign Exchange Regulation Act, 1947 could not be attracted in the present case as mere possession of foreign exchange by itself constituted no offence---Record showed that co-accused after registration of the case, had validated his stay in the country by obtaining proper visa---Prosecution had failed to prove offence in terms of S.4 of the Foreign Exchange Regulation Act, 1947, against the accused---Appeal was partly accepted and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court---Accused (foreigner) claiming the ownership of the recovered foreign currency, had failed to furnish justifiable explanation regarding bringing the currency into Pakistan or having its possession under license or permit by any authorized person dealing in the foreign exchange---Appeal to the extent of confiscation of the foreign currency was dismissed in circumstances.
Jalil v. The State 1978 PCr.LJ 155; Muhammad Saleem v. The State Bank of Pakistan and another 1984 PCr.LJ 2083 and Nasrullah Matamaken v. The State 1983 PCr.LJ 2322 rel.
Qazi Jawad Ehsan Ullah and Shaibzada Asadullah for Appellants.
Muhammad Sohail, A.A.G. for the State.
2018 Y L R 1293
[Peshawar]
Before Waqar Ahmed Seth and Abdul Shakoor, JJ
AFSAR KHAN---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No.487-P of 2016, decided on 18th July, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was when complainant party were on the way to their village through a pickup, the accused party, duly armed with Kalashnikovs, emerged and started indiscriminate firing at them, as a result of which one person died and one sustained injuries---Motive behind the alleged occurrence was previous blood feud enmity---Ocular account was furnished by the complainant, who was sole eye-witness of the occurrence---Record showed that in murasila complainant had been shown as injured, whereas in cross-examination he did not accept himself as injured, which created serious doubt in prosecution case---Complainant had stated in cross-examination that he had informed official witness/Police Officer about the occurrence through cell phone of a co-villager---Neither the complainant had disclosed the name of the co-villager nor produced him as witness---Said Police Officer in his statement had negated the version of complainant by saying that he was informed about the occurrence by Moharrir of Police Station, which had shattered the veracity of the statement of the complainant---Complainant had stated that he took the body of deceased to the hospital, but postmortem report showed that body of deceased was brought by police and relative of the deceased---Complainant had deposed in his examination in chief that four accused fled away from the place of occurrence on motorbike, but stated in cross-examination that the accused ran away from the place of occurrence on two bikes---Said fact showed that complainant had made improvement, which had rendered his statement of no worth to be relied upon---Statement of complainant demonstrated that he made material contradictions, improvements and deviation from his first stance at the trial, therefore he had become unbelievable---Medical evidence of the deceased showed different size of entry wounds, which indicated that all injuries were caused from different weapons, thus medical evidence did not support the prosecution version---Record transpired that injured witness, driver of the pickup and other passengers of the vehicle had not been produced in support of prosecution case---No blood was taken into possession from the pickup and sent to Forensic Science Laboratory for determination that same was that of deceased---Non-recovery of blood from the place of occurrence created doubts about the place of occurrence, presence of complainant and manner of incident---Record revealed that motive set up in the FIR had not been proved---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Noor Mohammad v. The State and another 2005 SCMR 1958; Saeed and 2 others v. The State 2003 SCMR 747 and Babbar Sher v. The State 2006 PCr.LJ 174 ref.
Gulistan and others' case 1995 SCMR 1789; Muhammad Yousaf and another's case PLD 2008 SC (AJ&K) 6; Sher Khan and others' case 1991 SCMR 241; Asghar Ali alias Sabah and others' case 1992 SCMR 2088; Mahmood Khan's case 1972 SCMR 620 and Ayub Mashi's case PLD 2002 SC 108 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(g)---Withholding best piece of evidence---Presumption---If best piece of evidence available with a party, was withheld, it would be presumed that if that evidence was produced that would not favour the prosecution case.
Jehad Ali's case 2014 PCr.LJ 1559 rel.
(c) Criminal trial---
----Abscondence--- Scope--- Mere abs-condence in absence of unimpeachable evidence was of no value.
Ahmad Ali's case 2004 PCr.LJ 788 rel.
Ghulam Mohyuddin Malik for Appellants.
Syed Qaiser Ali Shah, A.A.G. for the State.
Arbab Sheraz Khan for the Complainant.
2018 Y L R 1328
[Peshawar (Bannu Bench)]
Before Abdul Shakoor, J
QUTAB-UD-DIN---Petitioner
Versus
MUTABAR KHAN---Respondent
Civil Revision No.63-B of 2013, decided on 13th December, 2017.
(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Talbs, performance of---Requirements---Hostile witness, statement of---Scope---Witness of pre-emptor to the information of sale mutation and Talb-i-Muwathibat was cross-examined by both the parties but was declared hostile---Validity ---Statement of witness could not be discarded on the mere reason that he had been declared hostile unless credibility of such witness was shaken during cross-examination by either side---Court could draw its own conclusion after considering his evidence---Except denying information of impugned sale mutation by informer to the plaintiff and performance of Talb-i-Muwathibat in his presence said witness did not deny affixing his thumb impression on the notice of Talb-i-Ishhad---Had said witness been won over he would have denied everything rather he stated that he had good relations with the pre-emptor---Plaintiff had failed to shatter the testimony of said hostile witness---Pre-emptor after performing Talb-i-Muwathibat had to affirm his intention not only in the pleadings but also through producing evidence---Plaintiff and his witnesses affixed their thumb impressions on the notice of Talb-i-Ishhad but they did not know as to what was in the said notice---Pre-emptor and his witnesses did not ask the scribe of notice of Talb-i-Ishhad that they wanted to confirm their intention to exercise right of pre-emption---Plaintiff was bound to produce the post man to prove service of notice of Talb-i-Ishhad but he only produced the clerk of the Post Office concerned---Pre-emptor had failed to prove delivery of notice of Talb-i-Ishhad in accordance with law---Plaintiff thus, had failed to prove performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law---No illegality or infirmity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.
Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762 rel.
(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Right of pre-emption---Exercise of--- Requirements--- For successful exercise of right of pre-emption performance of Talb-i-Muwathibat and Talb-i-Ishhad in respective chronological order was essential, any deficiency in performance thereof would render the suit for pre-emption liable to be dismissed.
(c) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction had limited scope---Concurrent findings of facts recorded by the courts of competent jurisdiction could not be set aside unless same were patently illegal, without jurisdiction, based on conjectural presumption or erroneous assumption.
Muhammad Rashid Ahmad v. Muhammad Saddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.
Arif Khan for Petitioner.
Umer Daraz Khattak for Respondent.
2018 Y L R 1370
[Peshawar]
Before Musarrat Hilali, J
SAJJAD AHMAD---Petitioner
Versus
The STATE---Respondent
Cr. M. B.A. No.391-P of 2018, decided on 9th March, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497---Customs Act (IV of 1969), Ss.2(s), 16, 139 & 156---Foreign Exchange Regulation Act (VII of 1947), S.8(2)---Trafficking foreign currency from Pakistan abroad---Bail, grant of---Allegation against accused was that he was arrested at the Airport by the Customs authorities, when he was trafficking foreign currency from Pakistan to abroad without any valid documents---Accused stated that he and his brother, who was settled abroad, wanted to start business there---Accused further explained that he had no knowledge that taking foreign currency out of Pakistan, was an offence---Offence, with which accused was charged, though fell under prohibitory clause of S.497, Cr.P.C., but he being behind the bars since 23-1-2018 and had no previous history of involvement in such like offences---Bail was granted in circumstances.
Arshad Hussain Yousafzai for Petitioner.
Farhad Ali, A.A.G. for the State.
Nemo for the Complainant.
2018 Y L R 1387
[Peshawar]
Before Mohammad Ibrahim Khan, J
Mst. GULA JANA---Petitioner
Versus
BANARAS (Deceased) through Legal Heirs and another---Respondents
Civil Revision No.538-P of 2012, decided on 28th October, 2016.
Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Talbs, performance of---Requirements---Minor omission in the statement of witness---Effect---Talb-i-Ishhad---Performance of---Limitation---Pre-emptor was a woman of old age and illiterate---Such lady could not be expected to remember the moment of specific date when her statement was recorded after four years---Minor omission in the statement of such witness whose statement was recorded after sufficient time could not mar the case of pre-emptor---No specific words were required to perform Talb-i-Muwathibat---Notice of Talb-i-Ishhad was not sent within stipulated period required between making Talb-i-Muwathibat and Talb-i-Ishhad---Right of pre-emption was feeble right which should be exercised within the ambit of limitation as prescribed for each Talb---Requirement of Talb-i-Ishhad was to be complied within fourteen days follow up of Talb-i-Khusumat within four months of the sale activity in the mode and manner from the date of exercising the right of pre-emption---Revision was dismissed in circumstances.
Arif Hussain v. Abdul Qayoum 1996 CLC 902; Sher Ahmad v. Murtaza Khan 2000 CLC 252; Mst. Chand Sanoober v. Ghulam Noorani 2011 CLC 578; Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179; Muhammad Tariq v. Asif Javed 2009 SCMR 240; Aisha Bibi v. Abdul Raoof PLD 2008 Pesh. 137; Zafar Ali v. Zain-ul-Abidin 1992 SCMR 1886 and Afsar Ali Khan v. Shireen Gul and another 2004 CLC 1773 rel.
Muhammad Taufeeq Qureshi for Appellant.
Syed Naveed Ali Shah for Respondents.
2018 Y L R 1428
[Peshawar (Mingora Bench)]
Before Muhammad Nasir Mahfooz, J
SARZAMIN and 4 others---Petitioners
Versus
WALI MUHAMMAD---Respondent
Civil Revision Petition No.54-M with C.M. No.115-M of 2015, decided on 26th October, 2017.
(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)
----S. 13--- Pre-emption suit---Non-performance of Talbs---Effect---Plaintiff/ respondent filed suit for pre-emption, which was dismissed by the Trial Court---Said judgment and decree were challenged through appeal, which was allowed and suit was decreed in favour of plaintiff---Validity---Record showed that the date and place of performance of Talb-e-Muwathibat was indicated but the time was not indicated which was a glaring illegality---Record transpired that there were substantial contradictions in the statement of witnesses regarding the arrival of informer to the Baitek of his father---Pre-emptor was father and the alleged informer was his son which itself appeared to be a home made story---Plaintiff/respondent stated that he had invited the witnesses for breakfast when his son was present at 9.55 a.m.---Witness stated that he had gone to Baitek of pre-emptor at 8.30 a.m. or 9.00 a.m. in the morning but the informer was not present with them---Said witness stated that he had not taken breakfast with pre-emptor and remained in his fields till he heard about the sale of pre-empted land---Pre-emptor/witness presented his examination-in-chief in the form of affidavit without its having been formally exhibited---Statement could be accepted in the form of affidavit, but the exhibition of document must be made in court in the presence of Presiding Officer as well as opposite counsel so as to provide opportunity to the opposite counsel regarding any objection, which could be raised---Similarly, respondent had raised such like objections at the time when the witnesses referred their affidavits without even exhibiting the affidavit in court---Record revealed that contentions as raised in the plaint and in the affidavits were un-proved on record and such like cursory reference to the affidavits could not fulfill the pre-requisites of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Statement in the form of affidavit could not be equated to an examination-in-chief recorded in the court---Cross-examination of the witnesses showed contradictions, which could not be treated as minor contradictions---Post man, who delivered registered notice of Talb-i-Ishhad had not been examined---Non-compliance of provision of Qanun-e-Shahadat, 1984 besides the glaring contradiction, was substantial enough to defeat the pre-emption suit---Notice of Talb-i-Ishhad per se was not proof of its contents unless properly exhibited in court and the affidavit per se was not the proof of contents of Talbs unless exhibited along with the documents mentioned therein---Revision petition in circumstances was allowed by setting aside the judgment passed by the appellate court.
2012 CLC 334; PLD 2005 SC 315; PLD 2003 Pesh. 53; PLD 2003 Pesh. 179; 2004 MLD 650 and 2005 YLR 60 ref.
(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Civil Procedure Code (V of 1908), S. 115---Talbs, performance of---Requirements---Mentioning of date, time and place in the plaint duly proved through witnesses in court was the only established procedure for proving Talb-i-Muwathibat and Talb-i-Ishhad but by not exhibiting notice of Talb-i-Ishhad in court it would be redundant---Requirement of law to exhibit the documents was to exhibit the same inside the court---Mere attestation of affidavits would not amount to accept the genuineness of its contents.
Fazal Ghafoor for Petitioners.
Mukaram Shah for Respondent.
2018 Y L R 1442
[Peshawar]
Before Qaiser Rashid Khan and Muhammad Ghazanfar Khan, JJ
SHAUKAT---Appellant
Versus
JAMSHED and another---Respondents
Cr.A. No.517-P and Murder Reference No.12-P of 2016, decided on 8th March, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the complainant, his two brothers were present at the spot with a tractor-trolley for carrying sand when accused along with his co-accused came there duly armed, and started firing at them, as a result of which, one brother of complainant got hit and died on the spot while complainant and his other brother remained unhurt---Oral altercation inter se the complainant party and accused, taken place prior to the incident, was alleged to be the motive behind the incident---Ocular account was furnished by the complainant and brother of the deceased---Complainant had narrated the same episode as set forth by him in his initial report---Brother of the deceased who was the eye-witness of the occurrence, stated the incident as alleged---Complainant had stated that he was studying in M.Sc. during the days of occurrence and on the following day of the occurrence, he had to appear in the last paper of the examination---Eye-witness stated that during the days of occurrence, he was running a general store in the village---Complainant was M.Sc. student and must have been preparing for the final paper on the following day of the occurrence---Attending circumstances suggested that both the complainant and eye-witness were not present on the spot but their attendance was procured---Inordinate and unexplained delay had occurred in lodging the FIR---Site plane though showed the presence of the complainant and the eye-witness at their alleged points but the story of occurrence belied their presence on the spot---If at all the purpose was to collect the sand from the spot, then what were the complainant, eye-witness and deceased doing at their respective positions, standing at quite some distance from each other with the tractor trolley still parked at another place---Motive being the altercation between the complainant party and the accused over the taking away of the sand was directed against the deceased, complainant and eye-witness---Allegedly, four accused fired 40/60 shots at them, but strangely enough, deceased received three firearm injuries and the complainant and eye-witness remained unscathed---Such factors cast doubt on their presence on the spot---Record showed that all the co-accused were acquitted by the Trial Court---Appeal against such acquittal was preferred by the complainant but was dismissed---Said order was not challenged further and had attained finality---Record transpired that the evidence of the prosecution witnesses was discarded and disbelieved during the trial of the co-accused---Same set of evidence could not be believed in the case of accused when similar role had been assigned to all the four accused in the FIR---Circumstances established that prosecution had failed to prove its case against the accused beyond reasonable doubt, benefit of which, would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Akhtar Ali and others v. The State 2008 SCMR 6; Shahbaz v. The State 2016 SCMR 1763 and Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---First Information Report was lodged after the delay of two hours---Effect---Occurrence allegedly took place at 1300 hours and matter was reported to the police at 1500 hours---Fact remained that distance between the place of occurrence and the police station was 11/12 kilometers---No explanation for such delay was furnished by the prosecution, which was fatal for the prosecution case.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Accused was allegedly arrested with Kalashnikov---Empty of 7.62-bore retrieved from the spot and the Kalashnikov were sent to the Forensic Science Laboratory for chemical examination---Report of Forensic Science Laboratory was to the effect that the empty was fired from the Kalashnikov recovered from the accused---Separate FIR was registered in respect of said recovery under S.13 Pakistan Arms Ordinance, 1965---Accused faced trial and was convicted and sentenced to three years---Appeal was preferred by accused against the conviction order under S. 13 of the Ordinance which had been allowed, such recovery, therefore, became inconsequential.
(d) Criminal trial---
----Abscondence of accused---Scope---Mere abscondence of the accused could not be taken into consideration to record conviction.
Farman Ali and 3 others v. The State PLD 1980 SC 201; Taj Muhammad v. Pesham Khan and others 1986 SCMR 823 and Mitho Pittafi v. The State 2009 SCMR 299 rel.
Astaghfirullah for appellant.
Mujahid Ali Khan, AAG for the State.
Hizar Hayat Daudzai for the Complainant.
2018 Y L R 1462
[Peshawar (Bannu Bench)]
Before Shakeel Ahmad, J
MEHMOOD ZAMAN---Petitioner
Versus
The STATE and another---Respondents
Cr. Misc. B.A. No.339-B of 2017, decided on 20th September, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 427, 148 & 149---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Plea of alibi---Scope---Accused along with co-accused allegedly made firing upon the complainant party, which hit three sons of complainant and they died on the spot---Accused-petitioner had alleged that he was serving abroad and was not present on the spot---Original passport, air line ticket and travel history report provided by the concerned department showed that the accused left the country for abroad on 28.5.2015 and came back to the country on 20.2.2017, while the alleged crime took place on 18.4.2016---Plea of alibi taken by the accused-petitioner had not been disbelieved by the prosecution and was accepted after due verification from the concerned department---Case of the accused-petitioner had fallen within the purview of S.497(2), Cr.P.C. he was allowed bail in circumstances.
Amir v. The State PLD 1972 SC 277; Manzoor v. The State PLD 1972 SC 81; Malik Muhammad Salihin v. Arshad Sidique and 2 others 1997 SCMR 1829 and Gul Khan v. Asghar Khan and another 2012 PCr.LJ 218 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principle---Observations made in bail order were tentative in nature and would not prejudice the case at the trial stage.
Fazal Qadir for Petitioner.
Shahid Hameed Qureshi, Addl. A.G. for the State.
Ahmad Jan Khattak for Respondent No.2.
2018 Y L R 1471
[Peshawar]
Before Muhammad Ayub Khan and Arshad Ali Khan, JJ
STATE through Advocate General, KPK, Peshawar---Appellant
Versus
NAZIM ALI---Respondent
Cr.A. No.4-P of 2017, decided on 30th June, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Accused party was charged for the murder of brother of the complainant and for attempt at the life of complainant in furtherance of common intention---Ocular account was furnished by the complainant, who was the eye-witness of the occurrence and also victim of attempt on his life---Complainant mentioned no time of occurrence in the FIR---No empties had been recovered from the place of occurrence despite the fact that complainant had alleged that numerous fire shots were made at them by the accused party---Complainant failed to state as to from which direction he and his brother proceeded---Complainant did not know the time of death of his brother---Record showed that when, as alleged, accused party, was having deadly weapons and the complainant party was empty handed how the complainant escaped unhurt remained a mystry---Complainant narrated in the FIR that he had brought the dead body of his deceased brother to the hospital while statement of Medical Officer showed that the relative of deceased brought his dead body to the hospital---Such circumstances suggested that complainant was not accompanying his deceased brother---Dead body of the deceased was identified by his relatives---Record transpired that there were glaring contradictions in the statement of the complainant, who was eye-witness of the occurrence---Complainant could not prove his presence on the spot which made his case highly doubtful---Appeal against acquittal was devoid of merit in circumstances which was dismissed in limine.
Paio Khan v. Sher Baz 2009 SCMR 803 rel.
(b) Criminal trial---
----Benefit of doubt---Principle---Simple circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, would make him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.
(c) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Presumption---Double presumption of innocence is acquired by the accused after earning acquittal from the Trial Court---Findings of acquittal can not be reversed, unless found to be arbitrary, fanciful and capricious on the face of it or result of misreading or non-reading of any material evidence.
Muhammad Riaz Khan Paindakhel, A.A.G. for Appellant.
2018 Y L R 1501
[Peshawar (D.I. Khan Bench]
Before Muhammad Younis Thaheem, J
Mst. ZAKIYA BIBI and another---Petitioners
Versus
MURTAZA SHAH and 2 others---Respondents
W.P. No.183-D of 2015, decided on 31st January, 2018.
Family Courts Act (XXXV of 1964)---
----S. 12---Limitation Act (IX of 1908), Art. 181---Maintenance allowance---Unpaid decree---Execution petition---Limitation---Scope---Petitioner (Ex-wife)/ decree-holder contended that executing court had rightly held her execution petition as maintainable---Respondent/ Judgment-debtor contended that Appellate Court had rightly dismissed the execution petition as the same was time-barred being filed after more than three years of passing of the decree---Validity---Respondent did not pay any maintenance allowance as per decree till the filing of execution petition so the petitioner on denial of maintenance allowance moved the executing court---Provision of Limitation Act, 1908 were not applicable in family matters in strict sense---Article 181 of Limitation Act, 1908 was residuary in nature which dealt with the situation when someone had to move an application and not execution petition for which no period of limitation was provided in the law and even in the Limitation Act, 1908 therefore, Appellate Court while appreciating Art. 181 of the Limitation Act, 1908 had erred in law by applying the same to the execution matter---Petitioner/decree-holder had averred in execution petition that respondent/ Judgment debtor had not paid decretal amount of maintenance so respondent could not be given benefit of wrong of his refusal to pay the decretal amount in any garb---High Court set aside the judgment passed by the Appellate Court and restored the order passed by the Family Court/Executing Court---Constitutional petition was allowed accordingly.
Sher Zaman v. Mst. Mahzari W.P. No.2175-P of 2016 and Syed Muhammad v. Mst. Zeenat and others PLD 2011 SC 128 ref.
Miss Samina Kanwal for Petitioner.
Miss Farhana Jabeen for Respondents.
2018 Y L R 1528
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
DAULAT KHAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 131-P of 2016, decided on 13th October, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant/Police Officer had allegedly received complaints about selling of narcotics/charas by the accused; complainant with police constables proceeded to the place of incident and found the accused there---Sixty-grams of charas Garda and 2-kilograms charas Pukhta, were recovered from the accused and amount of Rs. 3000, allegedly earned by the accused by selling charas was also taken into possession---Accused was arrested on the spot---Record showed that neither any complaint was brought on the record, nor statement of any complainant or witness from the general public was recorded to that effect---No test purchase was conducted in order to lend credence to the said version of the prosecution---No warrant under relevant law was obtained by the complainant in-spite of his receiving prior information regarding involvement of the accused in the unsavoury business---Complainant could have procured presence of witnesses from the general public as the reported place of recovery was situated in the midst of populated area---Record showed that complainant and recovery witness were not consistent in their statements before the court---Complainant stated that Rs. 3000/- were recovered from pocket of the accused, while recovery witness stated that Rs. 3000/- were lying in the shopping bag---Parcel containing Rs.3000/- was not produced in the court---Complainant stated that he first prepared the recovery memo and then drafted the murasila, while the recovery witness stated that the complainant first drafted the murasila and then prepared the recovery memo---Contradictions/discrepancies had appeared in the statements of prosecution witnesses with regard to material aspect of the case and it was not safe to rely on such evidence for conviction of the accused---Accused was acquitted in circumstances, by setting aside conviction and sentence recorded by the Trial Court.
(b) Criminal trial---
----Witness---Police officials as witnesses---Police officials were as good witnesses as any other witness---Testimony of Police Officials could be accepted with extreme care and caution for making the same basis for conviction of accused.
Amjad Noor for Appellant.
Mian Arshad Jan, A.A.G. for Respondent.
2018 Y L R 1543
[Peshawar (D.I. Khan Bench)]
Before Ijaz Anwar, J
MUHAMMAD---Petitioner
Versus
Sheikh TAJ MUHAMMAD and others---Respondents
C.M. No.66-D of 2017 with C.M. No.67-D of 2017, decided on 26th July, 2017.
Civil Procedure Code (V of 1908)---
----S. 12 (2)---Transfer of Property Act (IV of 1882), S. 52---Application under S.12(2), C.P.C.---Maintainability---Transfer of property during pendency of suit---Lis pendens, principle of---Applicability---Decree, setting aside of---Scope---Contention of applicant was that he was bona fide purchaser of suit property---Validity---Title of suit property being questioned in civil court, no person was allowed to deal with the same except with prior permission of the court---Any transaction during pendency of suit was at the risk and cost of the purchaser and seller---Transaction which took place during pendency of suit would be having no protection being hit by the doctrine of lis pendens---Original owner from whom petitioner purchased the suit property was also party to the proceedings and he agitated the same plea of being bona fide purchaser but that had been discarded---No plea of bona fide purchaser could be entertained in circumstances---Recording of evidence in the application was not necessary in presence of decrees of Court--- Application under S. 12(2), C.P.C. was not maintainable which was dismissed in limine.
PLD 2007 SC 905; 2013 SCMR 551; 2017 SCMR 172; 1976 SCMR 489, 1984 SCMR 1027; 1985 SCMR 491 and 1987 SCMR 192 rel.
2018 Y L R 1571
[Peshawar (Bannu Bench)]
Before Ikramullah Khan and Abdul Shakoor, JJ
NOOR ALAM---Appellant
Versus
ABDUL WAHAB and another---Respondents
Cr. A. No.159-B of 2017 with Murder Reference No.09-B of 2017, decided on 11th January, 2018.
(a) Penal Code (XLV of 1860)---
-----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of brother of complainant by firing---Motive of the occurrence was that accused was given a motorcycle by brother of deceased and accused was annoyed on taking back said motorcycle by said brother of deceased---Ocular account of the occurrence was furnished by the sole eye-witness, who was complainant and real brother of the deceased---Record showed that the occurrence was of broad day light (2.20 p.m.) but the Investigating Officer did not record the statement of any independent witness nor the prosecution could bring any witness before the court to testify the story of occurrence---Statement of complainant recorded before the court contradicted the mode and manner of occurrence, as disclosed in the site-plan by complainant to the Investigating Officer---Police Official stated that statement of complainant was recorded in emergency room of the hospital at 15.00 hours, thereafter the injury sheet, inquest report of deceased were prepared and dead body was sent for post-mortem---Said witness stated during cross-examination that the dead body was brought to the hospital at about 2.45 hours---Medical Officer stated in his examination-in-chief that at 2.45 p.m., he conducted autopsy of the dead body of the deceased---Such circumstances showed that injury sheet, inquest report and post-mortem was conducted before scribing the report of the complainant at 15.00 hours, which suggested that the complainant lodged report after preliminary investigation---Such report would lose its sanctity and probative worth and as such would become a suspected document---Site-plan showed the distance between accused and deceased as 2 to 4 feet---When a fire shot was made from a distance of less than three feet, there would be blackening or charring marks on the corresponding wounds, but in the present case, no blackening or charring marks were found on the entry wound---Such condition revealed that medical report and site-plan were contradictory to each other, which had given a clear inference that the complainant was not present at the spot and had not witnessed the occurrence---Complainant had not mentioned in the FIR as to how many fire shots were made by the accused, but in his statement, he stated that accused made 2/3 fire shots---Record showed that no crime empty was recovered from the spot---Accused was arrested on the following day of the occurrence with a .30-bore pistol, which was sent to the Forensic Science Laboratory---Report of Forensic Science Laboratory showed that pistol was in working condition, but said report was not sufficient to prove that the deceased was fired at by the said pistol, in absence of crime empties---Crime pistol was not recovered just after the occurrence and accused had not confessed that pistol in question was used in the case---Circumstances established that case of prosecution was pregnant with jumble of doubts, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.
Muhammad Wasif Khan and others v. The State and others 2011 PCr.LJ 470; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Muhammad Ali v. The State 2017 SCMR 1468 rel.
(b) Criminal trial---
----Charge against single accused---Effect---Mere fact that single accused was charged was not an absolute rule regarding his guilt---Prosecution was bound to firstly establish presence of witness who had allegedly seen the accused and secondly to believe the testimony of solitary eye-witness, there required strong independent corroboration to prove guilt of the accused.
Gul Muhammad v. State and another 2016 PCr.LJ Note 9, P.14 rel.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 38---Admission by accused before police---Scope---Admission of accused before the police for having committed the offence with some specific weapon was not admissible in evidence.
Riasat Ali and another v. The State and others 2015 PCr.LJ 995 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Effect---Motive for the occurrence as stated by the complainant was that the accused was given a motorcycle by his younger brother and accused was annoyed as his said brother had taken back his motorcycle from the accused---Said circumstances showed that the annoyance of accused was with younger brother of the deceased and not with the deceased or eye-witness/ complainant--- Circumstances suggested that there was no motive to fire at the deceased and if he fired at him, then on the analogy of said motive, the accused should have fired at the complainant as well, but it was not the case of prosecution---Prosecution had failed to prove motive in circumstances---Conviction for a capital charge could not be based on such weak and shaky type of motive.
Muhammad Ali v. The State 2017 SCMR 1468 rel.
(e) Criminal trial---
----Benefit of doubt---Principle---If any reasonable doubt arose in the prosecution case, the benefit of the same would be extended to the accused not as a grace or concession, but as a matter of right.
Muhammad Sadiq v. The State 2017 SCMR 144; Tariq Pervaz v. The State 1995 SCMR 1345 and Muhammad Akram's case 2009 SCMR 230 rel.
Ahmad Farooq Khattak for Appellant.
Shahid Hameed Qureshi A.A.G. and Muhammad Nisar Khattak for Respondents.
2018 Y L R 1592
[Peshawar (Mingora Bench)]
Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ
HAZRAT ALI---Appellant
Versus
The STATE through Additional Advocate General, Khyber Pakhtunkhwa and another---Respondents
Cr.A No.279-M with Murder Reference No.11-M of 2014, decided on 24th January, 2018.
Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of brother of complainant by firing---Motive for commission of the offence was cited as an earlier attempt at their lives by firing of the accused---Ocular account of the occurrence was furnished by four witnesses including complainant/real brother of the deceased---First Information Report showed three persons of the same family were charged by the complainant for the qatl-i-amd of brother of complainant in the furtherance of their common intention---Two co-accused had already been acquitted by the Trial Court---Role assigned to the accused was different from the two acquitted co-accused, as the accused was charged for effective firing with his pistol which caused death of deceased---Co-accused were charged for their presence duly armed at the spot while sharing common intention of qatl-i-amd of the deceased with the accused---Fact remained that evidence of the prosecution was disbelieved with regard to sharing of common intention of all the three accused---Admittedly, parties were not even known to each other before the alleged commission of offence of attempt at the lives of the complainant, deceased and his companions---Motive for the commission of the offence, admittedly, developed in a plaza when Chowkidar of the plaza stared at the complainant, and exchange of hot words with him led to grappling with the complainant, which resulted in alleged firing by the accused and other two co-accused in the said case as well as in the present case---Said circumstances suggested that there was no fresh motive for commission of qatl-i-amd, because in both the cases, victim as well as accused were the same---No reaction or revenge for the first occurrence was attributed to the complainant side to provide a motive to the accused party to enact such a grave offence of murder---Complainant in both the cases escaped unhurt, although motive in both the cases was attributed to him---Complainant party in both the cases, fell victim to the alleged aggression of the three accused, belonging to the same family, and there was nothing on the record to indicate any loss suffered by the accused---Presence of one of the eye-witnesses was not proved beyond doubt, as there was nothing on the record to show as to how he got information about the first occurrence and how and when he reached the casualty department of the hospital in order to be present at the time of lodging report by the complainant to the police about the first occurrence and remained present there during the second occurrence---Admittedly, hospital was a busy place, and not only guarded at several points by the police, but hospital staff, patients and their attendants remained present in the hospital, particularly at the casualty ward---Accused and other co-accused armed with Kalashnikovs were neither noticed at any point nor large number of Police Officers witnessed the occurrence despite their presence at the scene of occurrence at the relevant time---All the three accused escaped notice of everyone present there in the casualty ward of the hospital, after commission of the offence, while carrying their weapons---Investigating Officer had stated that he reached casualty ward of the hospital after receiving information about the occurrence after 7.00 p.m., whereas the occurrence reportedly took place at 7.10 p.m.---Absence of names of complainant and the other eye-witnesses in both the inquest and post-mortem reports would bring their alleged presence on the spot at the time of occurrence, under serious doubt---In the present case, the best available evidence of Police Officers, hospital staff and people present on the spot at the time of occurrence was withheld---Post-mortem report of the deceased showed all the three entry wounds on the upper side of the body of the deceased, while the corresponding exit wounds on the lower part of the body---If both the assailant and victim were in standing condition, such like wounds could not be caused---Prosecution case, on the other hand, was that both the accused and the deceased were in standing position at the time of occurrence---Location of all the three exit wounds on the lower part of body of the deceased would falsify the said presumption---No source of light was either mentioned in the FIR or in the site plan, despite the occurrence had taken place at 7.10 p.m. in the month of December---Circumstances established that there was hardly any incriminating evidence to warrant conviction of the accused and award of capital punishment---Case of prosecution was replete with sufficient doubts and contradictions---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Sahibzada Asadullah for Appellant.
Mian Arshad Jan, A.A.G. for the State.
Rashid Ali Khan for the Complainant.
2018 Y L R 1629
[Peshawar (Bannu Bench)]
Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ
ABDUR REHMAN---Appellant
Versus
The STATE and another---Respondents
Cr.A. No.51-B of 2015, decided on 11th April, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Prosecution case as mentioned in the FIR was that unknown persons murdered the brother of the complainant by firing at him---Admittedly, no motive was alleged in the FIR nor any person was charged for the offence---Record showed that occurrence had taken place at a time not known and report was lodged by the complainant, when dead body of the deceased was found on 3.2.2014 at 19.30 hours---Complainant, thereafter recorded supplementary statement, wherein, he charged the accused-appellant---Accused after his arrest recorded confessional statement, wherein he had given effective role of firing to the co-accused-appellant---Co-accused-appellant was implicated in the case on the confessional statement of the accused---Complainant deposed in his examination in chief that accused party had conveyed to him that they had committed the offence---Record transpired that accused was arrested on 18.2.2014 and his confessional statement was recorded on 21.2.2014, after the delay of three days---Said delay had not been explained, which made the confessional statement involuntary and unsafe to be made basis for conviction---Judicial Magistrate, who recorded the confessional statement of the accused stated in his cross-examination that five to ten minutes were given to the accused for thinking over his confessional statement---Judicial Magistrate was supposed to have given at least 30 minutes to accused for thinking over his confessional statement---Such short time rendered the confessional statement not voluntary---Record showed that story of confession was against human conduct, unbelievable and seemed to be a cock and bull story---Circumstances established that occurrence was unwitnessed, accused was not charged in FIR, no motive was available, confession of accused was neither inculpatory nor believable or corroborated by ocular or circumstantial evidence, thus accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.
(b) Criminal Procedure Code (V of 1898)---
----S. 164--- Confession--- Delay in recording confessional statement---Evidentiary value---If accused remained in police custody after his arrest till recording confessional statement, such confession would loose its value; longer the police custody of the accused, lesser the evidentiary value of his confession.
(c) Criminal Procedure Code (V of 1898)---
----S. 164--- Confession--- Principle---Confessional statement should be clear and its contents to appeal to reason---If the confession was corroborated by other facts and circumstances of the case, same would be relied upon.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon and crime empties---Corroborative evidence---Reliance---Two crime empties of 7.62-bore were recovered from the spot on 3.2.2014---Kalashnikov was recovered on 18.2.2014, both were sent to the Forensic Science Laboratory, and were received there on 28.2.2014---No explanation was available as to where the said articles remained during the interregnum---Forensic Science Laboratory's Report, in circumstances, could not be relied upon---Nothing was available on record that the recovered Kalashnikov was owned or was in possession of the accused-appellant---Admittedly, in the house from where alleged Kalashnikov was recovered, other inmates were also resided---Prosecution had failed to connect the alleged recovered Kalashnikov with the accused-appellant beyond any reasonable doubt.
(e) Criminal Procedure Code (V of 1898)---
----S. 164--- Confession--- Corroborative evidence---Scope---Confession made by accused could not be used as a substantive piece of evidence to make the same basis of conviction of co-accused---Confessional statement could be used as a corroborative piece of evidence, if corroborated by independent evidence.
State v. Asfandyar Wali and 2 others 1982 SCMR 321 rel.
(f) Criminal trial---
----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit, not as a matter of grace and concession but as a matter of right.
Muhammad Akram v. State 2009 SCMR 230 rel.
Syed Fakhrud Din Shah and Khosh Ameer Khattak for Appellant.
Shahid Hamid Qureshi Addl. A.G. for State.
Mohammad Anwar Khan Maidad Khel for Respondents.
2018 Y L R 1648
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
IMRAN KHAN---Appellant
Versus
The STATE---Respondent
Cr.A. No.559-P of 2013, decided on 25th October, 2017.
Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c) & 29---Possession of narcotic substance---Appreciation of evidence---Sentence, reduction in---Prosecution case was that twenty five packets of Pukhta charas, each packet weighing one kilogram, total twenty five kilograms, were recovered from rear seat and CNG tank of the vehicle driven by accused---Five grams charas as sample was separated from each of twenty five packets of charas and sealed into separate parcel, while remaining charas was sealed separately in another parcel---Vehicle was taken into possession, and accused was arrested---Record revealed that accused had contended that he hired the vehicle for offering "Fateha" in another city---Admission of accused about his presence in the vehicle at the time of recovery of narcotics from the motorcar and his arrest by the police from the said vehicle, would lead to presumption of commission of the offence under S.29 Control of Narcotic Substances Act, 1997---Accused expressed his desire to produce defence evidence, but later-on he expressed his inability to do so, which showed that accused failed to prove his plea of defence that he had hired the car for Fateha---FIR showed recovery of twenty five packets, each containing one kilogram pukhta, charas total twenty five kilograms pukhta charas from space between the rear seat and CNG tank of the motorcar---FIR transpired that samples weighing five grams separated from each of the twenty five packets were sent for chemical analysis---Chemical Examiner furnished opinion with regard to twenty five samples each weighing five grams, in the affirmative---Record showed that each of all the twenty five packets of charas contained thirteen slabs, fixed with each other---Evidence of prosecution showed that samples were separated from each packet and not from each slab in a packet and thus twenty five samples from twenty five packets and not three hundred and twenty five samples from all the slabs in the packets were separated---Said fact would reduce quantity of the narcotics from twenty five kilograms to one hundred and twenty five grams or at the most to seventy seven grams in one slab out of thirteen slabs in a packet of one kilograms, total one thousand nine hundred and twenty five grams, made the accused liable to lesser punishment of imprisonment---While maintaining the conviction, the punishment of imprisonment for life was reduced to the one already undergone, in circumstances---Appeal was disposed of accordingly.
Jalaluddin for Appellant.
Moen-ud-Din Humayun, AAG for Respondent.
2018 Y L R 1658
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
MUHAMMAD ASIF---Appellant
Versus
The STATE through Advocate General, Peshawar and another---Respondents
Cr.A. No.666-P of 2013, decided on 27th September, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused with co-accused, made firing at complainant and his cousin, as a result of which, complainant and his cousin were hit and injured---On the way to hospital, injured cousin of complainant succumbed to the injuries---Motive for the crime was stated to be some litigation between the deceased and accused---Ocular account of the occurrence had been furnished by the complainant---Record showed that complainant had deposed in line with what he had alleged in his report with some improvement---Complainant was the solitary eye-witness to the crime, who was also related to the deceased---Evidence of the complainant was hardly supported by medical and other circumstantial evidence of the case---Occurrence took place at about 6.20 p.m. and at that time it was very difficult for the complainant to properly identify the accused for want of light, particularly, when the complainant was driving a van and that too on a busy road---Record transpired that medical examination of the deceased had negated the ocular account of the case---Site plan indicated that the complainant was driving van and was moving from west to east and the deceased was sitting with him on the front seat---Site plan showed that accused was present towards left side of the deceased---Medical evidence furnished by Medical Officer revealed that the deceased had sustained five wounds on his right side---If the accused was present on his left side as per site plan and had fired therefrom, then receiving injuries by the deceased on his right side would not be possible---Such fact of the case showed that the occurrence had not taken place in the mode and manner in which same was reported and deposed by the complainant---Medical evidence showed that the deceased was brought to the hospital at 6.02 p.m. while according to the case murasila, the occurrence had taken place at 6.20 p.m.---Shifting the deceased prior to lodging the murasila, which was scribed in the hospital, had created a dent in the prosecution case as to its accuracy---Complainant had a stamp of firearm injury on his person which did not mean that whatever he reported and deposed was a true picture of the incident---Testimony of complainant, in such situation, could not be accepted despite the fact that he had sustained injury on his body---Circumstances established that prosecution had not proved its case against the accused beyond any reasonable doubt, benefit of which, would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Solitary statement of complainant/eye-witness---Evidentiary value---If the deposition furnished by solitary eye-witness had ample corroboration from the attending circumstances of the case, conviction could be based on it, otherwise, no credence could be attached to the solitary account of a witness.
(c) Criminal trial---
----Benefit of doubt---Scope---Prosecution had to prove its case beyond reasonable doubt and if single doubt had accrued in the prosecution case, benefit of the same would be given to the accused.
Muhammad Saeed Khan for Appellant.
Altaf Khan for the Complainant.
Muhammad Riaz Khan Paindakhel, A.A.G. for the State.
2018 Y L R 1668
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
TARIQ MEHMOOD and another---Appellants
Versus
The STATE---Respondent
Cr.A. No.680-P of 2014, decided on 13th September, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c) & 29---Seizure of narcotic---Burden of proof---Prosecution case was that 70.800 kilograms charas Garda, 15.600 kilograms charas Pukhta, 20.400 kilograms opium and one kilogram heroin were recovered from secret cavities of the vehicle of accused persons---Record showed that accused persons had admitted the presence of the narcotics in the vehicle and recovery of the same while they were present in the vehicle---Presumption would be that accused persons were in possession of illicit articles under S. 29 of the Control of Narcotic Substances Act, 1997, unless the contrary was proved---Accused persons could not discharge burden of proof to the contrary---Prosecution, in circumstances, had proved the charge against the accused persons---Appeal was dismissed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 70.800 kilograms charas Garda, 15.600 kilograms charas Pukhta, 20.400 kilograms opium and one kilogram heroin were recovered from secret cavities of the vehicle of accused persons---Complainant separated samples of 10/10 grams from the recovered contrabands, which were sealed, and the remaining contraband were also sealed in separate sacks---In order to prove charge against the accused, prosecution produced five witnesses including complainant---Record showed that huge quantity of narcotics was recovered by the staff of Anti Narcotics Force, who admittedly, neither had previous acquaintance with the accused persons nor any ill will or grudge for their false implication in the case and substitution for the real culprits---Recovery of the narcotics was not only proved through the testimony of complainant, marginal witness and witnesses to the safe custody of the samples, but also dispatched the samples on the following day of the recovery to the Forensic Science Laboratory---Positive report of the Forensic Science Laboratory, could not be dislodged by mere fact that the prosecution witnesses belonged to the police---No malice was proved against the police, which was not alleged in the present case---Prosecution had proved its case against the accused persons in circumstances---Appeal was dismissed accordingly.
2016 SCMR 806; 2016 SCMR 909; 2016 SCMR 707; 2014 SCMR 1165; PLD 2012 SC 369; PLD 2015 Pesh. 157; 2014 PCr.LJ 22; 2016 PCr.LJ Note 79 and 2014 PCr.LJ 1295 ref.
(c) Criminal trial---
----Witness---Police Officers/Officials as witnesses---Scope---Police Officers/Officials were as good witnesses as any other witnesses.
(d) Criminal trial---
----Witness---Minor discrepancies in the statements of prosecution witnesses---Effect---Minor discrepancies in the statements of prosecution witnesses, as pointed out by the defence, would not be fatal for the case of prosecution in the light of consistent and confidence inspiring evidence of the prosecution.
Ms. Farhana Marwat for Appellants.
Tariq Kakar, Advocate, Standing Counsel for ANF.
2018 Y L R 1676
[Peshawar (Bannu Bench)]
Before Ikramullah Khan and Abdul Shakoor, JJ
AFZAL KHAN and 2 others---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 68-B and 69-B of 2015, decided on 12th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for the murder of son of the complainant by firing---Occurrence had been witnessed by father of the deceased, who just after the occurrence took his son, the then injured, to the hospital and within twenty five minutes of the occurrence, in emergency room of the hospital, he reported the matter to the local police---Time consumed in lodging the report, could not be termed as delay and that the matter was reported after consultation and deliberation.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for the murder of the son of complainant by firing---Ocular account had been furnished by the father of the deceased, who was sole eye-witness of the occurrence---Complainant of the case supported his stance as narrated in his initial report---Complainant was subjected to lengthy and taxing cross-examination by the defence but nothing could be extracted from his mouth which could diminish the probative worth of his testimony---Version of prosecution was duly corroborated by medical evidence, recoveries effected from the place of accused persons, motive of the occurrence and other attending circumstances of the case---Post-mortem report of the deceased showed that firearm injuries, could only be caused through the fire shots of Kalashnikovs---Accused and co-accused had been given the role of firing with Kalashnikovs, while other co-accused had been given the role of firing with .12-bore rifle---Attending circumstances of the case suggested that the deceased had not been done to death by the fire shot of other co-accused, nor the complainant received any firearm injury---Serious doubt had been created in the case of prosecution to the extent of participation of other co-accused in the alleged offence, thus his case was on different footing---Once the case had been proved against the accused persons for commission of murder of deceased on the basis of statement of complainant, then its allied offence, attempting at the life of complainant was also proved---Circumstances established that prosecution had proved its case against the accused and co-accused, whereas it failed to prove its case against the other co-accused, thus appeal against accused and co-accused was dismissed and against the other co-accused was allowed in circumstances by setting aside conviction and sentences recorded by the Trial Court against him (other co-accused).
Mst. Roohaida v. Khan Bahadur and another 1992 SCMR 1036; Qaiser Khan and others v. The State and others 2009 SCMR 471 and Mir Afzal Khan v. The State 2011 SCMR 171 rel.
(c) Criminal trial---
----Witness--- Interested witness---Testimony of interested witness---Scope---Statement of interested witness who even for that matter was inimical witness could be taken into consideration if supported by some strong corroboration from some independent source---Interested witness could only be discarded if it was proved that said witness had ulterior motive on account of enmity or any other consideration.
Muhammad Ehsan v. State 2006 SCMR 1857 rel.
(d) Criminal trial---
----Absconsion--- Evidentiary value---Abscondance could be used as corroborative piece of evidence which could not be read in isolation but had to be read along with substantive piece of evidence.
Rohtas Khan v. The State 2010 SCMR 566; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. The State 1985 SCMR 2070 and Amir Gul v. The State 1981 SCMR 182 rel.
(e) Criminal trial---
----Benefit of doubt---Principle---If a single reasonable doubt in the prosecution case was created, the accused was to be extended its benefit.
Anwar-ul-Haq for Appellant.
Shahid Hameed Qureshi Addl. A.G. for the State.
Muhammad Anwar Khan Maidad Khel for the Complainant.
2018 Y L R 1687
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ
RIAZ MUHAMMAD KHAN SWATI---Petitioner
Versus
The STATE and 5 others---Respondents
Writ Petition No.825-A of 2016, decided on 24th July, 2017.
Criminal Procedure Code (V of 1898)---
----Ss. 169, 164 & 173---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Charge against the accused/ respondent was that he made firing at deceased, who sustained firearm injury on his face, which caused his death---Accused was granted ad-interim bail on 23.5.2016 by the Trial Court---Accused pleaded his innocence before the Investigating Officer and raised plea of alibi---Investigating Officer recorded statements of various persons in support of the plea of alibi of the accused and found him innocent---Eye-witnesses recorded their statements under S.164, Cr.P.C. stating to have not witnessed the occurrence---Investigating Officer declared the accused innocent and accepted bail bond from accused under S. 169, Cr.P.C., despite the fact that accused was not in his custody---However, while preparing the final investigation report under S.173, Cr.P.C., he did not mention the factum of releasing accused on his personal bond---Investigating Officer had stated in the report that he had deferred the arrest of accused being innocent--- Petitioner stated that Investigating Officer had illegally allowed release of accused and he had no mandate under S.169, Cr.P.C. to accept bail bond from the accused---Validity---Admittedly, the accused/respondent had been directly charged by the petitioner for the murder of the deceased---Investigating Officer had the mandate to unearth the truth and collect the entire evidence relating to the occurrence and provide the investigation report in terms of S.173, Cr.P.C. and to state his opinion on the case---Investigating Officer had no authority to arrogate himself the role and the function of adjudication and to evaluate the evidence of prosecution and the defence---Record showed that Investigating Officer accepted the bail bond from accused, when he was not in his custody---Releasing accused on bond when he was not in custody was illegal and without lawful authority, thus action of the Investigating Officer was arbitrary and he had transgressed and travelled beyond the scope of his jurisdiction under S.169, Cr.P.C.---Constitutional petition was accepted in the circumstances and Investigating Officer was directed by High Court to submit complete challan before the competent court immediately.
Mumtaz Ahmad for Petitioner.
A.A.G. for the State.
Raja Muhammad Zuliqar?? and Rana Muhammad Ishaq for Respondent No.6.
2018 Y L R 1698
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
KHYAL MIR---Appellant
Versus
TAHIR HASSAN and another---Respondents
Criminal Appeal No.564-P of 2014, decided on 10th October, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that, deceased, the then injured, was busy in cutting grass in the fields, that, accused fired at him with pistol, with which he was hit and got injured---Injured was taken to the hospital where he lodged the report to the police and was referred to other hospital for further treatment but he could not survive and succumbed to injuries---Record showed that there was no eye-witness to the occurrence and the one, who was the complainant, died subsequent to lodging the report---Prosecution had relied upon the FIR by treating same as a dying declaration---Record showed that site plan of the case had been prepared by the Investigating Officer on his own, as neither the deceased accompanied the Investigating Officer to the spot nor anyone else pointed out the crime spot to him---Record was silent as to how the Investigating Officer reached the spot and prepared the site plan citing therein various points about presence of the deceased and the crime empties---Neither any cut grass was recovered nor any sickle was found from the crime spot---Investigating Officer had not cited any place wherefrom the grass was cut by the deceased or was in the process of cutting, hence the site plan did not support the dying declaration so made by the deceased---Medical evidence showed that deceased had died after five days of the occurrence---Sole injury sustained by the deceased was on posterior side of his left thigh, which was a non-vital part of human body---Medical Officer had given certificate about consciousness of the injured when the deceased, the then injured was conscious and oriented at the time of lodging report, there was no need of certificate by the doctor about his consciousness---Said aspect of the case showed some overactiveness on the part of Investigating Officer and it appeared that when the deceased passed away after five days, then the Investigating Officer obtained the certificate regarding consciousness of the deceased---Alleged dying declaration got no corroboration from independent circumstantial aspects of the case, therefore, it could not be made basis for conviction of the accused---No postmortem report of the deceased was available, in absence of which it could not be ascertained with certainty that what was the cause of death of deceased---Admittedly, death certificate of the deceased was available and cause of death had been given as multi-organ failure, which was a very vague term and was not reliable---Cause of death when not clearly known, then the statement of the injured could hardly be considered as a dying declaration---Prosecution had not produced the treatment chart of the deceased on the basis of which the death certificate was issued, death certificate, in circumstances, had no legal worth---Circumstances established that prosecution had failed to bring home guilt to the accused through any reliable and confidence inspiring evidence---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
---S.302---Qatl-i-amd---Dying declaration---Evidentiary value---Dying declaration was a weak type of evidence because it was not tested by cross-examination---Dying declaration could be made a base for conviction provided that same was corroborated by strong independent circumstantial evidence, otherwise, no credence could be attached to the same.
(c) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Scope---Reliance---Crime weapon, pistol used in the commission of offence was recovered from the accused---Pistol was recovered on 24.9.2011 and was received at the laboratory after a delay of fourteen days and the report of Forensic Science Laboratory was positive---No legal worth could be given to the recovery and positive report of Forensic Science Laboratory in circumstances.
(d) Criminal trial---
----Benefit of doubt---Principle---Slightest doubt in the prosecution case was sufficient for acquittal of the accused.
Muhammad Saleem Mardan for Appellant.
Mian Arshad Jan, A.A.G. for the State.
Yousaf Shah Mohmand for the Complainant.
2018 Y L R 1721
[Peshawar]
Before Ishtiaq Ibrahim, J
GENERAL MANAGER SNGPL---Appellant
Versus
SAFEER ULLAH KHAN and others---Respondents
Criminal Appeal No.259-P of 2017, decided on 31st July, 2017.
(a) Gas (Theft Control and Recovery) Act (XI of 2016)---
----Ss, 3, 5 & 14---Tampering with gas pipe-line---Jurisdiction of Gas Utility Court---Scope---Allegation against the accused/respondent was that they had taken illegal gas supply connection for running their factory---Company filed a complaint before the Trial Court/Gas Utility Court on the basis of said allegation, which was disposed of with the observation that the appropriate procedure for the company would be to lodge report/complaint to the police---Validity---Mechanism had been laid down in the Gas (Theft Control and Recovery) Act, 2016 for proceeding against person who committed offence under the Act---Section 5(2) of the said Act described that Gas Utility Court would not take cognizance of any offence punishable under the Act except upon a complaint made in writing by a person authorized in that behalf by a Gas Utility Company in respect of which the offence was committed---Trial Court being empowered under S.3 of the Act to act as Gas Utility Court was required to take cognizance of the offence punishable under the Act and to entertain the complaint filed before it by the company---Appeal was allowed by the High Court by setting aside the impugned order and Trial Court was directed to decide the matter according to law.
(b) Interpretation of statutes---
----'General' and 'special' law---Conflict---Effect---Special law would have prevalence over the general law---Where there was a conflict between a special law and a general law, the former would prevail over the latter.
Muhammad Arif Khan for Appellant.
Bashir Ahmad Safi for Respondents.
2018 Y L R 1738
[Peshawar (Mingora Bench)]
Before Ijaz Anwar, J
FAZAL KARIM---Appellant
Versus
ANWAR ZEB and others---Respondents
C. R. No.200-M of 2015, decided on 29th June, 2017.
Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Talbs, performance of---Requirements---Pre-emptor had not fulfilled the mandatory talbs---Foundation of claim of pre-emption rested on making an immediate declaration of intention to assert one's right i.e. Talb-i-Muwathibat and if same was not done then entire structure would collapse---Plaintiff and his witnesses had denied the performance of talbs in their cross-examination---Courts below had duly considered said aspects of the case---Right of pre-emption could not be exercised unless and until pre-emptor had performed Talb-i-Muwathibat immediately with regard to sale in the same meeting---Pre-emptor had also to substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence to prove talbs in accordance with law---Performance of talbs and its proof was a question of fact regarding which Courts below had appreciated the evidence minutely and discussed the same in detail and had arrived at concurrent conclusion---Notices of Talb-i-Ishhad were never served personally on the vendees and on this score alone suit was liable to be dismissed---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in circumstances.
PLD 2003 Pesh. 179; 2015 SCMR 1222; 1992 SCMR 1780; 2003 MLD 873; 2010 YLR 1190; 2015 MLD 1228 and PLD 2003 SC 315 ref.
2009 CLC 880; 2011 CLC 244; 2013 SCMR 1113; PLD 2015 SC 69; 2015 SCMR 222 and 2013 SCMR 866 rel.
Abdul Halim Khan for Appellant.
M. Parvaish Khan for Respondents.
2018 Y L R 1765
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan, J
NAKAF alias NAQAB KHAN---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.351-M of 2017, decided on 21st September, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(vi), 337-E & 34---Attempt to commit qatl-i-amd, causing shajjah-i-khafifah, munaqqilah, ghayar-jaifah, common intention---Bail, grant of---Accused was named in the FIR with the role to have fired upon the complainant along with fire shots attributed to co-accused, but said fire shots were fired simultaneously; which needed examination of the complainant as to when the fire shots were fired at the same time by accused and co-accused and that, how the complainant had witnessed the fire shots of accused having been hit by shot on his right knee---Medical report showed that the injuries sustained by the complainant, were of the type 'ghayar-jaifah munaqqilah and shajjah-i-khafifah', which entailed punishment of Daman and could also be punished with imprisonment of either description for a term which could extend to two and seven years respectively as Tazir---Question as to whether accused had intention to kill the complainant was yet to be established---Co-accused who had already been enlarged on bail, had also fired upon the complainant, whose fire shots were stated to be ineffective---Matter to determine was as to why the accused was selected as choice for effective firing upon the complainant---Acquittal or conviction was always based on the evidence to be adduced by the prosecution; absolute right rested with the Trial Court, yet, when there were reasons to believe that the punishment could not fall within the prohibitory clause of S.497, Cr.P.C., then such an accused was entitled to the concession of bail---Accused was enlarged on bail, in circumstances.
[Case-law referred]
Sajjad Ahmad Jan for Petitioner.
Rafiq Ahmad, Asstt: Advocate-General and Hazrat Rehman for Respondents.
2018 Y L R 1775
[Peshawar]
Before Rooh-ul-Amin Khan, J
AWAIS ALI---Petitioner
Versus
The STATE through S.H.O., P.S. City Kohat---Respondent
Criminal Miscellaneous Bail Application No. 643 of 2018, decided on 9th April, 2018.
Criminal Procedure Code (V of 1898)---
----S.497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)--- Possession of charas weighing 9600 grams---Bail, grant of---Insufficient evidence---Effect---Scope---Accused was allegedly alighted from vehicle by which he was travelling as passenger---Record revealed that neither the vehicle through which the accused was allegedly trafficking narcotic substance had been taken into possession nor its driver, conductor or any passenger had been cited as witness to the recovery proceedings---In absence of such crucial pieces of evidence, the prosecution would not be able to prove the guilt of accused ---Accused had no previous history of involvement in such a case---Accused was admitted to bail, in circumstances.
Ibrar Alam for Petitioner.
Moeen ud Din Hamayoun, A.A.G. for the State.
2018 Y L R 1798
[Peshawar]
Before Waqar Ahmad Seth, J
MASAUD---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous Bail Application No.235-P of 2018, decided on 19th March, 2018.
Criminal Procedure Code (V of 1898)---
----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), Ss.458, 459, 460 & 109---Haraaba, house trespass and common intention---Abscondence---Bail, grant of---No one was mentioned in FIR as accused---Contradiction in statements of witnesses regarding participation of the petitioner in the commission of offence---Effect---Abscondence---Effect---Record revealed that the petitioner had not been charged in the FIR rather he had been nominated by co-accused in his statement under S.161, Cr.P.C. and by the complainant in his statement under S.164, Cr.P.C.---Complainant had , admittedly , shown four persons present in the courtyard of his house but while recording his statement under S.164, Cr.P.C., he charged six persons for the commission of offense, similarly, another co-accused had not disclosed the name of petitioner in his confessional statement regarding participation in the commission of offense---Mere abscondence was no ground to decline the bail if the accused was otherwise entitled for concession of bail---Accused had made out case for the grant of bail, in the circumstances.
State v. Malik Mukhtiar Ahmed 1991 SCMR 322 and Mitho Pitafi v. The State 2009 SCMR 299 ref.
Ishfaq Ahmad for Petitioner.
Malik Haroon Iqbal and Gul Qamar Khan for Respondents.
2018 Y L R 1803
[Peshawar]
Before Qaiser Rashid Khan, J
NIAZ WALI---Petitioner
Versus
The STATE---Respondent
Bail Application No.517-P of 2018, decided on 30th March, 2018.
Criminal Procedure Code (V of 1898)---
----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of four kilograms of narcotic substance---Bail, refusal of---Prohibitory clause of S.497, Cr.P.C.---Accused allegedly alighted from vehicle keeping the bag in his hand wherefrom the recovery had been effected---Accused contended that there was contradiction in the nature of Charas given in FIR and of forensic science laboratory report---When there was prior information regarding the smuggling of narcotic by accused and he alighted from the bus as pointed out by the Spy and four kgs of Charas was recovered from him, prima facie linked the accused with the commission of offence falling within the ambit of prohibitory clause of S.497(1), Cr.P.C---For all practical purposes Charas Garda meant the Charas in a raw form which after undergoing some baking process was turned into Charas Pukhta---Colour of both Charas Garda and Charas Pukhta was either brown, brownish or dark brown depending upon the visual evaluation and description---Charas, in the present case, had been mentioned as brown solid in the report Forensic Science Laboratory which was in the affirmative---Bail of the accused was refused, in the circumstances.
Shah Faisal Utman Khel for Petitioner.
Mujahid Ali Khan, A.A.G. for the State.
2018 Y L R 1836
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
SHER ALI---Appellant
Versus
The STATE through Advocate General, Khyber Pukhtunkhwa---Respondent
Criminal Appeal No.507-P and Murder Reference No.11-P of 2016, decided on 20th September, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused duly armed with deadly weapon, fired at the brother of the complainant, which hit him and he died on the spot---Motive of the occurrence was an altercation between the deceased and the accused with took place early in the morning over sale/purchase of orchards---Ocular account was furnished by the witnesses including complainant---Record showed that report was lodged in the hospital at 3.00 p.m.; time of occurrence was mentioned as 1.55 p.m., but the postmortem report showed examination of the dead body on the same day at 2.20 p.m., which was forty minutes earlier than the time of report to the police in the hospital---Said facts showed that postmortem examination of the deceased was conducted prior to lodging the report to the police by the complainant, thus had shaken the very foundation of the FIR---Complainant had stated in the FIR that his deceased brother was hit with the firing of the accused and died on the spot, but it was not clear as to why the dead body was taken to the hospital instead of the Police Station---Postmortem report of the deceased had shown 10 to 20 minutes time between injury and death, but no steps were taken by the complainant and other persons present in the mosque (place of occurrence) for removing the deceased, then injured, to the hospital as the body was shown as lying on the spot for all that time---Such situation would cast doubt on the authenticity of the FIR, showing instantaneous death of the deceased and about presence of the complainant at the time of occurrence---Investigating Officer not only collected a blood stained piece of carpet during spot inspection but also received blood stained garments of the deceased from the Medical Officer, who conducted Postmortem examination of the deceased---Investigating Officer did not find the hands and clothes of the complainant and two eye-witnesses smeared with blood, despite the fact, that the complainant was real brother of the deceased and eye-witnesses were his close relatives---If complainant and eye-witnesses were present on the spot, they should have removed the deceased, then injured, to the hospital, after having received firearm injury---Record transpired that eye-witnesses were chance witnesses as they were not the inhabitants of the village, where occurrence took place---Statements of Pesh-i-Imam and other persons shown present in the mosque in the FIR were not recorded by the Investigating Officer---Non-recording of the statements of said persons and their non-production as prosecution witnesses had created dent in the prosecution case---Complainant and the eye-witnesses were shown very close from the place assigned to the deceased in the site plan, 1-2 paces from each other---Neither the complainant nor the eye-witnesses had received a single scratch as a result of alleged firing by the accused from backside---Deceased, complainant, eye-witnesses and other worshipers were shown in the FIR present in the mosque, after offering Juma Prayers, and presence of the accused was shown on back side of the deceased at the time of occurrence---Postmortem report showed entry wound on left side of upper lip, while exit wound on right side, lower of scalp, thus showed the entry wound from the front---In order to cover said conflicting positions, improvements were made by the eye-witness by stating that accused called the deceased, and when the deceased attracted to the accused, he fired at him---Said improvements were fatal, which was made to bring the prosecution case in conformity with the postmortem report, showing entry wound from the front side, (which was contrary to the FIR and the site plan)---Such discrepancies, contradictions and improvements in the prosecution case could not lead to conviction of the accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
2012 SCMR 172; 1990 SCMR 1134; 2015 SCMR 1142; 1980 SCMR 126; 2015 PCr.LJ 416; 1997 SCMR 441; 1995 SCMR 1293, 2010 SCMR 566; 2006 SCMR 1846; 2011 SCMR 646; 2015 PCr.LJ 416; 2015 PCr.LJ 585; 2015 PCr.LJ 1023; 2016 YLR 905; 2016 MLD 757; PLD 2003 SC 644; 1970 SCMR 467; 1981 SCMR 132 and 2011 SCMR 474 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 512---Statement of witness recorded in absence of accused---Transfer of statement of witness recorded in proceedings under S. 512, Cr.P.C.---Validity---Said statement for having not been subjected to cross-examination, would not be of any help to the prosecution case.
2017 MLD 973; 2017 MLD 883 and 2013 MLD 810 rel.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Motive behind the occurrence was alleged to be altercation between the deceased and the accused over sale/purchase of orchards---Record showed that nothing was brought on record to substantiate the motive---Motive, in circumstances was not proved.
(d) Criminal trial---
----Motive---Scope---Prosecution was not bound to establish motive in each and every case, but once motive was alleged and not proved, then prosecution would suffer the consequences.
2010 SCMR 97 rel.
(e) Criminal trial---
----Benefit of doubt---Scope---Doubts and contradictions, if found in the case of prosecution against the accused, benefit of the same would resolve in favour of accused.
2007 SCMR 1427; 2010 SCMR 566; 2016 YLR 1166; 2016 YLR 905; 2016 MLD 557 and 2017 MLD 883 rel.
Shabbir Hussain Gigyani for Appellant.
Mian Arshad Jan, AAG and Barrister Zahoor-ul-Haq for the Complainant.
2018 Y L R 1850
[Peshawar (Bannu Bench)]
Before Ikramullah Khan and Abdul Shakoor, JJ
SHAHID AMIR alias NOOR KAMAL---Appellant
Versus
The STATE and another---Respondents
Cr. A. No.32-B of 2014, decided on 10th October, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Charge against accused was that he duly armed with Kalashnikov along with his co-accused duly armed with rifle assaulted on the complainant party, made firing at the son of complainant with the intention to commit his murder, as a result whereof the son of complainant got hit and succumbed to injuries---Motive for the offence was a dispute over women folk---Ocular account in the case was furnished by the sole eye-witness/complainant, who was father of the deceased---First Information Report showed that motive behind the occurrence was dispute over women folk and deceased and the complainant had equal enmity with the accused, but accused fired at the deceased and left the complainant to depose against them---Complainant admitted in his cross-examination that if the accused wanted to kill him, they could easily do that as no one was present there to rescue him; in view of the said admission of the complainant, an inference could be drawn that the complainant was not present at the spot---Site plan showed that there were maize crops and kurrajat at the crime spot---Complainant admitted that he had taken the shelter in kurrajat---If there were maize crop and kurrajat, the accused could hide themselves there and without showing their identity could accomplish their target of killing the son of complainant---Said factor showed that the incident had not occurred in the mode and manner as alleged by the complainant---No conviction could be based on the basis of sole uncorroborated testimony of eye-witness---Ocular account of complainant was not believable, therefore, the recoveries, medical report, Forensic Science Laboratory Report and site plan were not material and did not furnish justification for holding that the accused had committed the offence---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed in circumstances by setting aside conviction and sentence recorded by the Trial Court.
(b) Criminal trial---
----Witness--- "Interested witness"---Evidentiary value--- Scope--- Interested witness or witness not interested was not the yardstick for believing or disbelieving a witness---Intrinsic worth or inherent merit of the testimony of a witness was to be considered---In order to believe an interested witness, first the prosecution had to satisfy the court regarding presence of the witnesses at the spot; secondly as to whether he was credible truthful witness and thereafter conviction could be based on testimony of interested witness, if same was corroborated by some strong corroborative piece of evidence.
(c) Criminal trial---
----Benefit of doubt---Principle---If any reasonable doubt arose in the prosecution case, the benefit would be extended to the accused not as a grace or concession, but as a matter of right.
Anwar-ul-Haq for Appellant.
Shahid Hameed Qureshi Addl. A.G. for the State.
Muhammad Rasheed Khan Dhirma Khel and Salah-ud-Din Marwat for the Complainant.
2018 Y L R 1867
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ
SANGEEN KHAN and another---Appellants
Versus
The STATE and another---Respondents
Cr.A. No.58-M with M. Rs. Nos. 2 and 2-A of 2016, decided on 20th November, 2017.
Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---
----Ss. 17(3) & 24---Penal Code (XLV of 1860), Ss. 302(b), 392 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13--- Haraabah--- Jurisdiction of Federal Shariat Court in offences committed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Scope---Applicability of Criminal Procedure Code, 1898--- Applicability--- Scope--- Accused persons were charged for the murder of father of the complainant after snatching his car---Record showed that on 22.3.2014, formal charge was framed against the accused persons under S. 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and they were tried for the said offence---Trial culminated into their conviction under Ss.302(b), 392 & 34, P.P.C. and accused were awarded death sentences---Accused had assailed their conviction and sentences before the High Court---Validity---Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, provided that offence punishable under S. 9 or S. 17 shall be triable by a Court of Session and an appeal from an order under either of the said sections or from an order under any provision of the Ordinance, which imposed a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court---Present appeal against conviction was not competent before High Court and the proper forum for entertaining the same was the Federal Shariat Court---Case file was sent to the Federal Shariat Court accordingly.
2015 PCr.LJ 203; 2015 MLD 155; 2017 YLR 888; PLD 2016 Kar. 191 and 2014 YLR 288 ref.
1984 SCMR 129; PLD 1999 SC 1063; 2010 YLR 657 and 2017 YLR 835 rel.
Sher Muhammad Khan for Appellants.
Rabnawaz, Additional Advocate General for the State.
Muhammad Amin Khan, Razaullah and Faisal Khan for the Complainant.
2018 Y L R 1879
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
ASKAR ABBAS---Appellant
Versus
The STATE---Respondent
Cr.A. No.306-P of 2015, decided on 26th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence--- Dying declaration---Prosecution case was that the accused and co-accused, duly armed with firearms opened fire at the complainant party, as a result of which, complainant sustained firearm injury on his neck and left back side while his father succumbed to the injuries on his way to the hospital---Female child aged about 10/11 years also sustained injuries during the occurrence---Motive of the occurrence was cited as dispute over property---Ocular account was furnished by two eye-witnesses---Both the eye-witnesses mentioned in the FIR escaped unhurt, and did not receive any injury in the alleged indiscriminate firing by three persons with their deadly weapons---Injured was shifted to hospital in injured condition and his report was recorded there in the shape of murasila---Said report, carried his thumb impression, which was verified by his uncle/witness, who signed the same---Medical Officer recorded his endorsement on top of the murasila, without recording time under his endorsement or name of the patient, his parentage and address---Medical Officer had not furnished a separate certificate regarding the fact that the injured was able to talk coherently---Medical report showed that patient was conscious, without mentioning about his faculty of speaking, and whether the injured complainant was well oriented at the time of recording his report---Said glaring omissions on the part of the Medical Officer assumed importance in the face of firearm injuries sustained by the complainant on the front of the throat over the trachea and at the upper end of the sternum---Medical Officer had omitted to mention regarding about the airway, breathing, circulation of blood, disability, blood pressure, pulse rate, colour of face, condition of the eye-balls, how the patient was reacting at that time and the manner of his speech and the pitch of the voice specifically---Record transpired that injured complainant had furnished the graphic details of the occurrence, including the information about his father who succumbed to the injuries on his way to the hospital---Said facts tended to raise serious questions about the authenticity of the dying declaration---Murasila was thumb impressed by the complainant, unlike rider of the murasila and uncle of the deceased-complainant, who signed the report, without any evidence to the effect that the deceased-complainant was illiterate and could not sign---Said fact indicated the report by uncle of the deceased-complainant and not as dying declaration---Both the eye-witnesses did not receive any injury during the reported indiscriminate firing by three persons, while they were also in the firing range and not only both the deceased had received firearm injuries but a child also sustained firearm injuries---Admittedly, one of the eye-witnesses was brother of the deceased, therefore, was an interested witness---Other witness had already been booked in a criminal case for committing cheating and forgery, hence, the credibility and veracity of his statement was under serious doubt---Both the eye-witnesses had claimed that their hands and clothes were stained with blood, when they accompanied the injured and deceased to the hospital, but neither blood stains were noticed on their hands nor their blood stained clothes were taken into possession by the Investigating Officer---Prosecution had failed to produce the injured child and abandoned her being minor, thus withholding the best evidence, casted shadow of doubt on the case of prosecution---All the three accused were shown armed with deadly weapons in the FIR without specification of the weapons---Accused armed with Kalashnikov was introduced by way of improvement, without anything forthcoming on the record that both the deceased and the injured child sustained injuries due to firing from the Kalashnikov shown in possession of the accused---Neither the Kalashnikov had been recovered as weapon of offence from the accused, nor he had made any confession in that respect so as to connect him with the commission of the offence---Circumstances established that dying declaration of deceased then injured/complainant and presence of eye-witnesses were bereft of supporting evidence, receiving corroboration from rest of the evidence adduced in the case by the prosecution---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---Prosecution case was that the accused along with his co-accused, duly armed with firearms opened fire at the complainant party, as a result of which, complainant sustained firearm injury on his neck and left back side, while his father succumbed to the injuries on his way to the hospital---Child aged about 10/11 years also sustained injuries during the occurrence---Motive of the occurrence was cited as dispute over property---Neither any document was placed on record of the case in support of the motive alleged by the injured complainant in his dying declaration nor anything was brought with regard to dispute over Sabeel introduced later in the case by the Investigating Officer---Statement of witness regarding dispute between the parties pertaining to the water tank situated near the shop of the complainant remained unsubstantiated---Motive, as such, all along remained shrouded in mystery, hence created space for doubting version of the prosecution---Motive was not proved in circumstances.
Muhammad Saleem Khan Mardan for Appellant.
Mujahid Ali Khan, AAG for the State.
Hussain Ali for the Complainant.
2018 Y L R 1900
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
ZAHIR REHMAN---Appellant
Versus
SAEED ALI RAZA SHAH and another---Respondents
Criminal Appeals Nos.467-P, 783-P of 2016, Criminal Revisions Nos.102-P of 2014 and 6-P of 2017, decided on 9th October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant, his father, brother and a relative were negotiating a matter with the accused party regarding the landed property given by them to the accused party on sharecropping---During negotiation, accused persons got infuriated and by entering into the Baithak fired at them with lethal weapons, with which brother and relative of complainant were hit and died on the spot, while complainant and his father escaped unhurt---Motive for the occurrence was stated to be a dispute over landed property given by the complainant side to the accused on rent---Ocular account of the occurrence had been furnished by the complainant and his father---Said eye-witnesses were closely related to both the deceased---Evidence of eye-witnesses hardly provided a true account of the occurrence---Distance between the accused persons and the eye-witnesses in the site plan would show that all the three accused and the eye-witnesses were standing in close proximity with each other; in such situation, if a group of three persons fires indiscriminately at the eye-witnesses and that too with lethal weapons, then there would hardly be a chance of missing the target---Said aspect of the case showed that both the eye-witnesses were not present on the spot when the occurrence had taken place---If they were present on the spot at the time of firing, they must have received some firearm injuries on their bodies---After discarding the evidence of eye-witnesses, no ocular account was left with the prosecution to prove the offence against the accused persons---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
(b) Criminal trial---
----Witness---Interested witness---Scope---Testimony of closely related witness---Reliance---Evidence given by related witness could not be discarded by the mere fact of his being related to victim---If the testimony of a related witness was not supported by circumstantial evidence of the case, then no credence could be attached to the same.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Cross version---Scope---Record showed that accused had also lodged FIR under Ss.324 & 34, P.P.C. against the complainant and others for effective firing at him---Contents of the said FIR showed that accused/complainant had reported to the police that he and his cousin were present in their tobacco barn; complainant and others came there duly armed with lethal weapons and started firing at accused/complainant which hit on his chest and abdomen---Motive for the firing was given by him a dispute over land---Nature of injuries sustained by the accused showed that same were not self-inflicted---Record showed that time of occurrence, the crime spots and motive for the occurrence were common in both the cases---Admittedly, the complainant side had come to the tobacco barn of the accused persons in order to settle a land dispute, during the negotiation proceedings, the parties lost their temperaments and resorted to firing resulting into casualties from both sides---Material of both the cases revealed that there was a sudden fight, wherein, the victims present on the spot resorted to firing at each other leaving casualties from both the sides---However, there was no worth reliable and convincing evidence on the record, which could show that the occurrence, which took the lives of two, was the job of three persons as alleged and deposed by complainant and his father, which aspect of the case casted doubt on the participation of co-accused persons in the crime---Objective perusal of the record relating to both the cases had led that the accused had acted in the exercise of his right of private defence by resorting to firing at the deceased when both the warring factions all of a sudden took arms in their hands and opened firing---Right of private defence was rightly exercised by the accused in the attending circumstances of the case as both the deceased were in his tobacco barn and attacked him with firearms---Circumstances established that the prosecution had not proved its case against the accused through worth reliable and confidence inspiring evidence---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
(d) Penal Code (XLV of 1860)---
----S.100---Private defence, right of---Scope---Court could take into account the plea of private defence, even if the accused had not taken it, provided surrounding circumstances of case established that such plea was available to him.
(e) Criminal trial---
----Benefit of doubt---Principle---Slightest doubt occurred in the prosecution case, its benefit would be given to the accused.
Sahibzada Asadullah for Appellant.
Mian Arshad Jan, A.A.G. for the State.
Barrister M. Zahur-ul-Haq for the Complainant.
2018 Y L R 1945
[Peshawar]
Before Qalandar Ali Khan, J
QAYUM KHAN---Petitioner
Versus
DISTRICT COORDINATOR OFFICER (D.C.O.), KOHAT and 21 others---Respondents
W.P. No.3352-P of 2012, decided on 13th April, 2018.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Suit for declaration---Fraud and misrepresentation---Decree, setting aside of---Scope---Contention of applicant was that he was in jail during pendency of suit and no opportunity of hearing was afforded to him and impugned decree was passed in his absence---Petition for setting aside of decree was dismissed concurrently---Validity---Applicant was not only represented during proceedings in the suit but he also preferred appeal and thereafter revision after dismissal of his appeal---Petitioner at no stage during proceedings had ever complained of not being properly represented or prayed for providing further opportunity of pursuing his case after release from jail---Petitioner had sought re-trial and re-opening of the case through complete trial proceedings in application under S. 12(2), C.P.C.---No fraud, misrepresentation or lack of jurisdiction had been pointed out in the impugned judgment---Non-participation of applicant in the proceedings could not be regarded as fraud or misrepresentation on the part of respondents or even lack of jurisdiction of the Court---Courts below were justified to dismiss the application of petitioner under S. 12(2), C.P.C.---Petitioner had tried to deny the fruits of decree passed in favour of respondents which could not be countenanced by the Court on any ground whatever---Constitutional petition was dismissed in circumstances.
(b) Partition Act (IV of 1893)---
----S. 4---Suit for possession through partition---Preliminary decree in the suit for possession through partition was passed wherein an application was moved by the defendant for grant of final decree which was accepted---Petitioner filed application against grant of final decree which was dismissed concurrently---Validity---Each and every party in a suit for partition was a decree-holder and also a judgment-debtor at the same time---Application for final decree might be filed by any of the parties to the suit for partition either plaintiff (s) or defendant(s) in the suit---Respondent was one of the defendants in the suit for partition and preliminary decree had accrued a right in her favour to seek final decree for partition---Application of petitioner for dismissal of respondent's petition for final decree was without force and same was rightly dismissed by the courts below---Revision was dismissed in circumstances.
Mazullah Bakrandi and Saadatullah Khan for Petitioner.
Sajjad Ahmed Durrani for Respondents.
2018 Y L R 1971
[Peshawar (Bannu Bench)]
Before Ishtiaq Ibrahim and Ijaz Anwar, JJ
Mufti IFTAKHAR-UD-DIN---Petitioner
Versus
The STATE---Respondent
W.P. No.514-B of 2015, decided on 25th April, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Laches--- Petitioner on 10-09-2015 questioned order of cancellation of allotment issued on 17-03-1997 and sought restoration of his allotment---Petitioner kept mum when his revision petition was dismissed in the year 1999 and it took him almost 16 years to approach High Court in Constitutional jurisdiction---Mandir and Samadhi were constructed on property in dispute; there was an affidavit of petitioner to the effect that he handed over possession of property at his free will, therefore, nothing was left for adjudication---High Court declined to interfere in the matter as petition was barred by laches---Constitutional petition was dismissed in circumstances.
2000 SCMR 1 distinguished.
2012 SCMR 1004 rel.
Khosh Ameer Khattak for Petitioner.
Qudrat Ullah Gandapur, A.A.G. for the State.
Mauzullah Barkandi for Respondents.
2018 Y L R 1979
[Peshawar (Abbottabad Bench)]
Before Lal Jan Khattak and Mohammad Ibrahim Khan, JJ
Mir AFZAL---Appellant
Versus
Mst. NASEEM BIBI and another---Respondents
Cr. A. No.58-A of 2010, decided on 8th November, 2016.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of the son of complainant---Motive for the occurrence was altercation between the deceased and the accused---Ocular account of the occurrence was furnished by three witnesses including complainant---Complainant, who was the mother of the deceased narrated the occurrence that when she was present in the house, her other son informed her that his brother was murdered---Eye-witness had stated in his cross-examination that the deceased then injured died in hospital prior to the making of report---Other eye-witness in his cross-examination had stated that after the occurrence, the deceased then injured was taken to hospital, which showed that the deceased was alive, and was in injured condition, when taken to hospital---Complainant also stated that her son was alive when she reached the hospital---Medical Officer had stated in his cross-examination that as soon as deceased received fire arm injuries, he died instantly---Circumstances suggested that there was a marked difference between the ocular account and the medical evidence---Circumstances established that prosecution had failed to prove the charge against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside the conviction and sentence recorded against him by the Trial Court.
[Case-law referred].
Mardan Ali v. Gulstan 1980 SCMR 889 and Abdul Subhan v. Rahim Bakhsh PLD 1994 SC 178 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of empties and blood-stained cotton---Reliance---Scope---Record showed that two empties of .30-bore pistol and blood stained cotton were recovered from the place of occurrence---Incident took place in the month of January when the area was covered with snow and it was not possible to recover said articles---Prosecution witnesses had stated that even at the time of occurrence there was snow fall---Report of Forensic Science Laboratory regarding the comparison of empties with the recovered .30-bore pistol was available but there was no embossing mark on the said report, which had become highly doubtful---Record transpired that it could not be gathered as to whether the articles which were sent, particularly the blood-stained cotton would match to the blood group of the deceased---Report and recoveries, in circumstances, were inconsequential.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding of material witness---Presumption---In the present case, the brother of the deceased, who informed his mother about the incident, was the most natural witness but he was not produced and had been abandoned being unnecessary---Act of withholding of most natural and material witness of occurrence would create the impression that had such witness been brought into witness box, he might not have supported the prosecution.
Lal Khan v. The State 2006 SCMR 1846 and Jan Alam v. The State 2004 PCr.LJ 68 rel.
Muhammad Naseem Khan Swati for Appellant.
Muhammad Naeem Akhtar, A.A.G. for the State.
Shad Muhammad Khan for the Complainant.
2018 Y L R 2000
[Peshawar]
Before Rooh-ul-Amin Khan, J
BHAI JAN---Petitioner
Versus
ASFANDIYAR and another---Respondents
Cr. Misc. B.A. No.65-P of 2018, decided on 6th March, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302, 496-B, 109 & 34---Qatl-i-amd, abetment, common intention---Occurrence was unseen---Complainant, though had directly nominated accused and co-accused for commission of offence in his statement under S.164, Cr.P.C., but he had not disclosed the source on the basis of which he got satisfied about complicity of accused in the commission of offence---Co-accused (widow of the deceased), no doubt had recorded her confessional statement; wherein she while disclosing about her illicit relations with accused, had attributed the role of murder of the deceased to the accused on her instigation---High Court, while deciding appeal of co-accused against conviction, disbelieved her confessional statement and acquitted her---Confessional statement of co-accused was to be considered as a circumstance; but when confessional statement of co-accused had not been believed and there was no direct and circumstantial evidence against accused; whether the prosecution would be able to form opinion as to the guilt of accused, was a debatable question; which made his case arguable for bail---Accused had not confessed his guilt before the competent court of law; nor any incriminating articles to link him with the commission of offence had been recovered from his direct or indirect possession---Investigation against accused was complete and he was no more required for further interrogation---Right of bail, could not be refused to accused, merely on account of his abscondence, which was a factor relevant only to the propriety---Accused was admitted to bail, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Further inquiry---Bail was to be allowed to accused as a right in case of further enquiry, and such right could not be refused merely on account of abscondence of accused.
Qamar alias Mitho v. The State and others PLD 2012 SC 222; Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ikram ul Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 ref.
Farmanullah Sailab and Shabbir Hussain Gigyani for Petitioner.
Muhammad Sohail, AAG for the State.
Syed Abdul Fayaz for Respondent.
2018 Y L R 2025
[Peshawar (Mingora Bench)]
Before Ishtiaq Ibrahim, J
ZAIWAR KHAN---Petitioner
Versus
SAHIB ZADA and another---Respondents
Criminal Miscellaneous (B.C.A.) No.67-M of 2017, heard on 14th February, 2018.
Khyber Pakhtunkhwa Prosecution Service (Constitution Functions and Powers) Act (I of 2005)---
----S.4---Criminal Procedure Code (V of 1898), S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, cancellation of---Powers and functions of Public Prosecutor---Scope---Accused and co-accused were charged for the murder of the daughter and grand-daughter of complainant---Accused filed bail petition after his arrest, which was dismissed by the Trial Court---Challan was submitted by prosecution in the Trial Court along with application under S.4(c) read with S.5(b) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005 for discharge of the accused on the ground of insufficient evidence in the case---Trial Court passed the impugned order wherein discharge of the accused was not ordered, however accused was granted bail---Validity---District Public Prosecutor was not competent to withhold prosecution or apply to the court for discharge of the accused in respect of offences punishable with death or life imprisonment, which had specifically been mentioned in the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005---Even Director General Prosecution could not exercise said functions under the law---Ss.63 & 169, Cr.P.C. described that the prerogative regarding discharge of the accused was solely enjoyed by Investigating Officer and none else had got the power to ask the court for passing any order regarding discharge of the accused as no legal sanctity was attached to his opinion qua his guilt---District Public Prosecutor had no legal authority to move application to the Trial Court for discharge of the accused in a murder case---Said application having no legal backing, bail granting order passed by the Trial Court, which was mainly based on the said application, was illegal and without any jurisdiction---Petition for cancellation of bail was thus, allowed by setting aside bail granting order.
Tariq Habib v. The State 2009 YLR 1364 and Muhammad Sharif alias Bhuller v. The State 2008 YLR 1462 rel.
Rahimullah for Petitioner.
Malak Sarwar Khan for Respondent.
Sardar Gul Muhammad Khan Katana for the State.
2018 Y L R 2069
[Peshawar (D.I. Khan)]
Before Ijaz Anwar and Shakeel Ahmad, JJ
ABDUL QAYYUM---Petitioner
Versus
FEDERATION OF PAKISTAN and others---Respondents
Writ Petition No.1136-D with C.M. Nos.1310-D of 2017 and 236-D of 2018, decided on 6th March, 2018.
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---
----Arts. 29 & 32---Constitution of Pakistan, Art. 199---Constitutional petition--- Maintainability--- Alternate remedy, availability of--- Wafaqi Mohtasib made recommendations for redressal of grievances of petitioners but thereafter vide letter in question decided to re-examine the matter--- Petitioners were aggrieved of such recommendations--- Validity--- Petitioners could approach the President of Pakistan under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, if they had any grievances against decision or order of Mohtasib within thirty days of the decision of the order---Petitioners, instead of availing remedy provided under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, filed Constitutional petition assailing such order of Wafaqi Mohtasib---Constitutional petition being not maintainable was dismissed in circumstances.
Gul Tiaz Khan Marwat for Petitioner.
Hashmat Rehman, A.A.G. for Respondents.
2018 Y L R 2103
[Peshawar]
Before Lal Jan Khattak and Qalandar Ali Khan, JJ
SHAH ROOM---Appellant
Versus
Mst. NEHAR BEGUM and another---Respondents
Cr.A. No.314-P of 2013, decided on 23rd October, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the complainant along with her deceased husband, son and brother-in-law had gone to bazaar for purchasing clothes---On their way back to home, accused and his co-accused persons suddenly emerged on the scene and opened fire at them with their deadly weapons, resulting in the qatl-i-amd of husband of complainant---Complainant, her son and brother-in-law escaped unhurt---Motive for the occurrence was mentioned as dispute over women folk---Record showed that FIR was lodged within forty five minutes of the occurrence and all the three accused were charged by name in the report of complainant/widow of the deceased for the qatl-i-amd of her deceased husband by effectively firing at him---Admittedly, complainant, her son and brother-in-law belonged to the same family escaped unhurt and did not receive a single fire arm injury in the firing attributed to all the three accused named in the FIR---Co-accused/father of the accused was acquitted---Motive for the commission of offence remained shrouded in mystery, and was not proved independently---Despite charge of qatl-i-amd of deceased against three persons, only one empty shell of .30-bore was recovered from the spot---Postmortem report of the deceased showed two entry wounds of the same size on front side of body of the deceased, while third entry wound was of different size and that, too, on the back side of deceased---Said wounds created doubt about the site plan showing all the three accused in the same direction from the deceased---First Information Report showed instantaneous death of the deceased, but the postmortem report revealed time between injury and death as one hour and time between death and postmortem examination as two hours, which created doubt about version of the prosecution and credibility of complainant and eye-witnesses---Complainant and eyewitnesses were not cited as identifiers of the dead body in both the inquest reports prepared by the police as well as postmortem report of the Medical Officer which created doubt about presence of the complainant and eye-witnesses on the spot at the relevant time---Co-accused/father of the accused, was acquitted, facing similar charges and attributed identical role in the case, but no appeal was filed against said acquittal---No appeal against the acquittal of father of accused was filed either by the complainant or by the State, and thus the acquittal order in the same case on the basis of same evidence, left case of the prosecution bereft of any incriminating evidence against the accused---No justification for conviction and award of sentence, therefore, existed to both the accused---Circumstances established that prosecution had not been able to prove its case beyond any shadow of doubt against the accused---Appeal was allowed and accused were acquitted in circumstances by setting aside their convictions and sentences recorded by the Trial Court.
(b) Criminal trial---
----Absconsion---Effect--- Absconsion of the accused would only be a corroborative piece of evidence and not a substitute for substantive evidence.
Khalid Bacha for Appellant.
Moeen-ud-Din Hamayun, AAG for the State.
2018 Y L R 2134
[Peshawar (Mingora Bench)]
Before Ishtiaq Ibrahim and Muhammad Nasir Mahfooz, JJ
AAMIR MUHAMMAD SHAH KHAN and another---Petitioners
Versus
Haji ABDUR REHMAN and 6 others---Respondents
W.P. No.147-M with C.M.A. No. 270 of 2017, decided on 10th January, 2018.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Execution of order---Possession, handing over of---Petitioners filed objections in execution/implementation petition for recovery of possession by respondents---Validity---Matter was settled not once or twice but thrice up to Supreme Court---Only issue that had remained alive for past 50 years was physical possession of property that was to be handed over to respondents---Objections of petitioners were to be properly addressed by officer exercising powers under Martial Law Regulation No.123 but he did not care to curtail agonies of both the parties by considering their contentions---High Court directed the provincial authorities to consider objections of petitioners but should also seriously consider as to whether respondents were granted possession of property measuring 278 Sattas of land for which they had been held to be entitled---High Court further directed the concerned officer to ascertain actual possession of respondents, if possible, by appointing a Local Commissioner so that orders/decisions of authorities exercising powers under Martial Law Regulation No.123 and judgments of superior courts were implemented in their true letter and spirit---Constitutional petition was allowed accordingly.
Naveed Maqsood Sethi for Petitioners.
Qazi Zakiuddin for Respondents
Muhammad Rahim Shah, Asstt. A.G. for the State.
2018 Y L R 2169
[Peshawar]
Before Yahya Afridi, C.J. and Ijaz Anwar, J
MAHMOOD AHMAD ASLAM---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary Communication Government of Pakistan and 5 others---Respondents
Writ Petition No.468-P of 2015, decided on 26th April, 2018.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Directions to Government---Dispute was with regard to constructions at the bank of the river Kunar at Naran---High Court appointed Commission consisting of senior official of Provincial Government and from civil society to submit report---On the basis of report prepared by the Commission, High Court issued following directions to Provincial Government for implementation;
i. Identify shortcomings in the model by-laws and ensure their immediate notification---Draft of Kaghan Development Authority (KDA) Building Bylaws 2017 were to be forwarded to Local Government Department for notification and implementation at the earliest but not later than 60 days from the receipt of the directions.
ii. No building construction---All construction, commercial or residential, within jurisdiction of KDA was not to be allowed till KDA bylaws were notified---Deputy Commissioner and District Police Officer were to assist KDA in their duty to enforce ban on construction.
iii. Kaghan Development Authority Master Plan and building regulations---Proper Master Plan with land use planning should be carved out within a period of six months, positively and accordingly, process of hiring a consultant for the purpose was to be initiated immediately.
iv. Solid Waste Management System---High Court directed Revenue Department to complete all acquisition process on priority basis and handover its possession to KDA for its development, management and installation of a proper Solid Waste Management System on the proposed site.
v. Entry Fee for services rendered by Authority under KDA jurisdiction---Provincial Government and KDA were to take appropriate steps for KDA to impose Conservancy User Charges and fee on link roads.
vi. Proper parking facility---All cases relating to KDA should be listed to expeditiously dispose of the same.
vii. Camping / Tents with proper sanitation arrangements in KDA---Revenue Department to finalize acquisition process on priority basis and hand over its possession to KDA for its development at the earliest.
viii. Collaboration between Wildlife Department and KDA---To maintain natural beauty and preserve lakes from adverse environmental effects, scheme namely "Feasibility Study of the Area: Development of Saiful Maluk and Lulupatsar" should be expeditiously implemented.
ix. Sewerage waste management---Plans for such purpose should be expedited for their immediate realization.
x. Emergency health facilities---Government was to make prompt arrangements on top priority basis for recovery vehicle 1122 service and mobile emergency health facility.
xi. Capacity building of HR---Revised Human Resource (HR) Schedule, as per requirement, be prepared and approved on priority basis.
xii. Children and family park---Any construction which would affect access of preservation of ancient relic Caves in Kaghan vally was to be halted---All authorities were to ensure that no construction would be carried out which would diminish in any manner the approach to the cave---Petition was allowed accordingly.
Syed Haziq Ali Shah for Petitioner.
Waqar Ahmad Khan, AAG, Muhammad Arif Baloch, P.D., Fida Muhammad Tanoli, A.D., KDA, and Dr. Muhammad Bashir, DG, EPA, Peshawar.
Sikandar Rashid for NHA and Jehanzeb Mehsud for rest of Respondents.
2018 Y L R 2196
[Peshawar]
Before Muhammad Ayub Khan and Ijaz Anwar, JJ
MUHAMMAD JALAL-UD-DIN---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary Establishment and others---Respondents
Writ Petition No.189-P of 2016, decided on 6th November, 2017.
Rules for Competitive Examination (CSS-2015)---
----R.4(iii)---Date of birth, change of---Petitioner was a candidate for Competitive Examination of CSS-2015---Grievance of petitioner was that his candidature was rejected for change in date of birth which was duly declared by civil court of competent jurisdiction---Validity---Court decree correcting date of birth could be valid in other matters if petitioner had applied for some other post etc.---Specific rules existed on the subject duly notified and according to R. 4 of Rules for Competitive Examination (CSS-2015), petitioner could not change his date of birth once accepted by Public Service Commission---High Court declined to interfere in the matter in view of Rules for Competitive Examination about change in date of birth---Constitutional petition was dismissed in circumstances.
PLD 1958 SC 437 ref.
C.P. No.2184 of 2001 rel.
Syed Ghufranullah Shah for Petitioner.
Kifayatullah Khan, DAG for Respondents.
2018 Y L R 2239
[Peshawar (Banu Bench)]
Before Ishtiaq Ibrahim and Ijaz Anwar, JJ
KASHIF KHAN---Petitioner
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and others---Respondents
W.P. No.318-B of 2015, decided on 26th April, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 173---Investigation report---Status---Report under S. 173, Cr.P.C. as to guilt or innocence of an accused person is a mere opinion of investigating officer and is not binding upon Court---Such report under S. 173, Cr.P.C. cannot be termed as an evidence to be blindly relied upon without applying judicial mind and recording reasons for the same if agreed or otherwise.
Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 154, 173 & 190 (1) (b)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art. 199---Constitutional petition---Two FIRs---Cancellation of one FIR---Speaking order---Two FIRs were registered for an occurrence and petitioner was complainant of one of the two---Petitioner was aggrieved of order passed by Magistrate whereby FIR registered by him was cancelled---Validity---When there were two FIRs of the same occurrence three possible courses were available to Magistrate firstly to agree with report and order cancellation of FIR, secondly to disagree with report and order further investigation and thirdly to take cognizance under S. 190 (1)(b), Cr.P.C.---Magistrate while adopting any of the three courses was required to act judiciously and in that he was to act fairly, justly and honestly---If Magistrate reached any of the conclusion, he was required by law to record reasons for the same but the Magistrate did not adopt a proper course and without forming his opinion had blindly relied upon opinion of investigating officer and cancelled FIR which was an illegality and could not be countenanced with---Magistrate had acted in administrative capacity, while dealing with such reports under S.24-A of General Clauses Act, 1897, even any executive authority was supposed to give reasons while passing any order---High Court set aside the order and remanded the matter to Magistrate for decision afresh by a "speaking order"---Petition was allowed in circumstances.
Mohammad Shah v. Mohammad Zaigam and 5 others PLD 2016 Lah. 495 ref.
Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Amir Hussain v. Murid Hussain and others 1995 PCr.LJ 423 rel.
Pir Liaqat Ali Shah and Farooq Khan Sokari for Petitioner.
Qudratullah Khan Gandapur, Asst. AG for the State.
Abdul Latif Baloch and Sultan Mehmood for other Respondents.
2018 Y L R 2253
[Peshawar (Mangora Bench)]
Before Mohammad Ibrahim Khan, J
Mst. SAMINA---Petitioner
Versus
The STATE and another---Respondents
Cr.M. B.A. No.465-M of 2017, decided on 26th October, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possessing and trafficking narcotics---Bail, grant of---No doubt quantity of charas weighing 7200 grams had been recovered from a T.V. set allegedly owned by accused and offence against accused was non-bailable; but whether accused had conscious knowledge of the charas in question or otherwise would be thrashed out by the Trial Court after recording of evidence---Lady accused was seated in front along side the driver; whereas alleged T.V. was found beneath the rear seat occupied by another passenger---Accused lady had 2/3 years old suckling baby---To keep the accused in jail for an indefinite period was not necessary---Accused was released on bail, in circumstances.
Mst. Kabela v. The State 2011 YLR 2975 ref.
Muhammad Anwar for Petitioner.
Rafiq Ahmad, Asstt: Advocate General for Respondent.
2018 Y L R 2271
[Peshawar (Mangora Bench)]
Before Ishtiaq Ibrahim, J
MUHAMMAD SAEED and others---Petitioners
Versus
HAIDER ALI and others---Respondents
Cr.R. No.26-M of 2016, decided on 23rd November, 2017.
(a) Criminal Procedure Code (V of 1898)----
----Ss. 190 & 193---Penal Code (XLV of 1860), Ss. 500 & 502-A---Defamation---Cognizance of complaint by Sessions Court---Scope---Court of Session could entertain a complaint filed under S. 500, P.P.C.
2016 PCr.LJ 1469 rel.
(b) Penal Code (XLV of 1860)---
----S. 500---Criminal Procedure Code (V of 1898), Ss. 200, 203 & 439-A---Defamation---Complaint, dismissal of---Petitioners brought complaint under S. 500, P.P.C. against the respondents, which was dismissed as withdrawn---Petitioners filed a fresh complaint, wherein, respondents were summoned---Complaint was dismissed on the ground that once the petitioners had withdrawn their complaint of similar nature subsequent complaint was not competent---Validity---Record showed that earlier complaint had been withdrawn by the petitioners to file a fresh complaint before the proper forum---Petitioners had brought fresh complaint, which after compliance of the provisions of S.190(2) Cr.P.C., was referred to the Trial Court---Application for withdrawal of the complaint clearly showed that withdrawal of complaint was to approach the proper forum, but the words "with permission to file a fresh complaint before proper forum were not mentioned in the order"---Said order was muted as to why petitioners were not granted permission for filing fresh complaint before proper forum, which could be the result of inadvertence---Subsequent complaint filed by the petitioners before the Trial Court, in circumstances, was competent in view of the conditional withdrawal of the earlier complaint---Earlier complaint having not been decided on merits and the same having been withdrawn on the ground of procedural defect coupled with the fact that the respondents had not earned their acquittal, revision petition was allowed.
Nazar Ahmad v. Muhammad Aslam and 2 others 1988 PCr.LJ 1787 rel.
(c) Criminal trial---
----Technicalities---Scope---No person should be knocked out in respect of his rights on mere technicality.
Khurshid Ali Walikhel for Petitioners.
Syed Sultanat Khan for Respondents.
Rab Nawaz Khan, A.A.G. for the State.
2018 Y L R 2328
[Peshawar (Mingora Bench)]
Before Muhammad Nasir Mahfooz, J
AHMADULLAH and 3 others---Petitioners
Versus
GOVERNMENT OF NWFP through Secretary Forest, Peshawar and 14 others---Respondents
Civil Revision No.672-P of 2006, decided on 11th December, 2017.
Forest Act (XVI of 1927)---
----Ss. 2 & 29---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Forest, ownership of---Forest Department claimed to be owner of land in question as it was a forest land---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of authorities---Validity---Ownership of forest and forest land etc., vested in the Provincial government---Any claim by any private person in violation of relevant law could not hold the field unless rebutted in any material particulars and not by mere oral evidence---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.
Major Azam Khan Afandi v. Deputy Commissioner Swat and others 2000 SCMR 548 rel.
Petitioners through Attorney.
Azim Khan and Rahim Shah, Assistant A.G. for Respondents.
2018 Y L R 2398
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ
SAID WAHAB---Appellant
Versus
The STATE through Additional Advocate General and 3 others---Respondents
Cr.A. No.98-M and Cr. R. No.23-M of 2015, decided on 11th December, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337-D, 337-F(iii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing jaifah, causing mutalahimah, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account, not supported by medical evidence---Prosecution case was that the accused and co-accused persons duly armed made firing upon the complainant party, due to which, one person died and four were injured---Motive behind the occurrence was dispute over a Forest---Record showed that place of occurrence was near the houses of accused party whereas the houses of complainant side were situated at a distance of 700/800 meters however, their flour mill was situated in the same vicinity---Presence of the accused and co-accused persons at the place of occurrence could be justified but the flour mill was not operative at the relevant time---Record showed that role attributed to accused was that he had fired at the injured, as a result whereof he sustained injury on the back of his right arm---Medico-Legal Report of the said injured showed that the wound was of the same size sustained by other injured though crime empties of different bores had been recovered from the spot---Said factor created doubt that the firing was made by one person; several persons of the accused party having been charged, therefore, mala fide on the part of the complainant could not be excluded---Medical Officer, who examined the injured, had stated that he was on duty for 24-hours on the relevant day---Record transpired that Medical Officer was on duty for 24 hours on that particular day but failed to specify the name of the Medical Officer at where place he was there---Non-recovery of bullets from the body of the injured from 2-cm deep wound was the fact which created a serious doubt regarding the genuineness of the medical report---Record showed that at the time of medical examination, the deceased was talking and was capable of giving statement but his statement was not recorded by police---Accused party including accused who were seven in number had been charged for causing indiscriminate firing with sophisticated firearms at the complainant party ; it was not possible that in such like situation the complainant had seen each accused firing at a particular injured---Said aspect of the case indicated that lodging of the FIR was purposely delayed to make the charge in line with the number of accused charged for causing firearm injuries---In the present case, empties of three different calibres of weapons were recovered from different places mentioned in the site-plan as well as in the recovery memos---All the entry wounds on the injured and deceased carried one and the same size---Record revealed that only one person was responsible for the occurrence but all the male members of accused party seven in number, were charged by the complainant party---Relationship of the eye witness with the complainant and roping in all the male members of the accused party in the case by complainant showed that eye-witnesses were interested---No independent witness was examined by prosecution, which created doubt about the veracity of prosecution case---Complainant, neither in the FIR nor the eye-witness in their statements, had specified the weapons allegedly used by the accused---Non-specification of the crime weapons by the complainant and eye-witness had a negative impact on the prosecution case and created a reasonable doubt---Circumstances established that prosecution had failed to prove the charge against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded against him by the Trial Court.
Farman Ali and 3 others v. The State PLD 1980 SC 201; Sohni v. Bahaduri and 5 others PLD 1965 SC 111 and Siraj v. The State and another 2013 YLR 684 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 149---Murder---Every member of unlawful assembly to be guilty of offence committed in prosecution of the common object---Ingredients of S. 149, P.P.C. had to be established by the prosecution---Seven persons had been charged in the present case---Prosecution was to prove that all the said persons had the common object to commit the offence of murder or attempt to murder by causing firearm injuries to injured and alleged presence of all the accused on the spot---Narration in the FIR and statements of the witnesses were that the complainant party after getting the knowledge about sale of pine leaves by accused party, rushed to the spot and after exchange of harsh words, occurrence took place resulting into casualties of both the sides---Record transpired that fight was initiated by complainant party where-after a free fight was started---Accused party could not be said to have acted in prosecution of their common object and they had come out when the complainant party had reached the place of occurrence---Circumstances suggested that there existed no legal justification on the basis of which the accused could be vicariously held liable for the murder of deceased or injuries sustained by other injured persons at the alleged firing---Circumstances established that conviction of the accused for the murder of the deceased and injuries sustained by injured persons attracting the provisions of S. 149, P.P.C. would highly be unsafe as well as unjustified---Appeal was allowed and accused was acquitted in circumstances by setting aside convictions and sentences recorded against him by the Trial Court.
Ansar Mahmood v. The State 2011 SCMR 1524; Muhammad Altaf and 5 others v. The State 2002 SCMR 189 and Rambilas Singh and others v. State of Bihar 1990 MLD 461 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337-D, 337-F(iii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing jaifah, causing mutalahimah, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about two hours in lodging of FIR---Effect---Occurrence allegedly had taken place at 5.10 p.m. and the report was lodged at 7.10 p.m. while FIR was registered at 9.30 p.m.---Facts remained that Police Station and hospital were situated in almost the same vicinity---Circumstances of the case showed that registration of the FIR was wilfully delayed and the complainant party was given time for consultation and deliberation whereafter murasila was drafted and then the formal FIR was chalked out against the accused persons---Said aspect of the case reacted on the genuineness of the story set-up by the prosecution.
State through Advocate General N.W.F.P. Peshawar v. Shah Jehan PLD 2003 SC 70 rel.
(d) Criminal trial---
----Witness---Statement of injured witness---Value---Injuries on the person of the eye-witness would establish his presence on the spot but the same was not a conclusive proof of credibility.
Said Ahmad v. Zamarud Hussain and 4 others 1981 SCMR 795 rel.
(e) Criminal trial---
----Benefit of doubt---Principle---Benefit of reasonable doubt would go to the accused as of right.
Hashim Qasim and another v. The State 2017 SCMR 986 rel.
(f) Criminal trial---
----Abscondence of accused---Effect---Abscondence of accused could corroborate other convincing prosecution evidence---If ocular account and other circumstantial evidence on record was disbelieved, accused could not be convicted on the sole ground that he remained absconder.
Rohtas Khan v. The State 2010 SCMR 566 rel.
Razaullah and Barrister Dr. Adnan Khan for Appellant (in Cr.A. No.98-M of 2015).
Rafiq Ahmad, Assistant Advocate General for the State (in Cr.A. No.98-M of 2015).
Mian Fahim Akbar and Sher Muhammad Khan for the Complainant (in Cr.A. No.98-M of 2015).
Sher Muhammad Khan for Petitioner (in Cr.R. No.23-M of 2015).
Rafiq Ahmad, Assistant Advocate General for the State (in Cr.R. No.23-M of 2015).
Razaullah and Ashfaq Ali Buneri for Respondents/convicts (in Cr.R. No.23-M of 2015).
2018 Y L R 2429
[Peshawar (Mingora Bench)]
Before Muhammad Ghazanfar Khan, J
ZARSHAD and another---Petitioners
Versus
Mst. BIBI SULTANA and 40 others---Respondents
C.R. No.1441-P of 2010, decided on 9th May, 2018.
Qanun-e-Shahadat (10 of 1984)---
----Arts. 17, 79 & 100--- Suit for declaration---Registered sale deed---Proof---Document more than thirty years old---Presumption of truth---Scope---Plea of plaintiff was that she was entitled for her share in the suit property whereas defendants contended that they had purchased suit land through registered sale deed---Suit was decreed concurrently--- Validity--- Registered document did not require to be proved on the touchstone of Arts. 17 & 79 of Qanun-e-Shahadat, 1984---Sale deed in favour of defendants was more than thirty years old which had presumption of truth---Cogent, reliable and trustworthy evidence was required to challenge the validity of a registered document which was more than thirty years old---Defendants had proved the existence/ legality of alleged documents---Judgments passed by the Courts below were against the mandate of law and evidence available on record---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed in circumstances.
Altaf Ahmad and Atta-ur-Rehman for Petitioners.
Arbab Muhammad Usman for Respondents.
2018 Y L R 2462
[Peshawar (Bannu Bench)]
Before Abdul Shakoor and Shakeel Ahmad, JJ
STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant
Versus
ISLAM JAN and another---Respondents
Cr. A. No.218-B of 2017, decided on 23rd May, 2018.
Penal Code (XLV of 1860)---
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---Occurrence had not taken place in the manner and mode as narrated by the complainant---Complainant, at the time of occurrence, was in possession of her personal mobile phone, but she did not inform any of her relatives about the incident and waited there till arrival of Police; which spoke of unnatural conduct of the complainant and negated her presence at the spot---Murasila, showed that the deceased was managed by the complainant on the spot, but neither her hands nor clothes, or her veil besmeared with blood; which too falsified her presence on the spot---Complainant, was not shown as identifier of the dead body, rather her two brothers were cited as identifiers---Six crime empties of 7.62 bore recovered from venue of crime were sent to Forensic Science Laboratory where it was opined that said empties were fired from one and the same weapon, which too falsified the assertion of the complainant, that the number of the assailants were two; rather it clearly suggested that it was the act of a single man which had also falsified presence of the complainant on the spot---Occurrence, in circumstances, was unseen---Considerable delay in examination of dead body also had created serious doubt on the prosecution case concerning time of occurrence as alleged by the complainant---Prosecution was bound to prove its case against accused beyond shadow of doubt, but it had failed to substantiate its case against accused---Trial Court had considered each and every aspect of the case in its true perspective and found that the statement of the complainant was not confidence inspiring, and disbelieved her presence at the spot---For reversal of the order of acquittal, it must be shown that the judgment of lower court was not reasonable or was wrong, or was the result of misreading or non-reading of the evidence on record, but the prosecution could not do that---Solitary statement of complainant, being neither trustworthy nor confidence inspiring, was not worthy of credence---Findings recorded by the Trial Court, while acquitting accused, were neither perverse nor arbitrary---Impugned judgment was upheld and acquittal of accused persons, was maintained.
Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; Muhammad Iqbal's case PLD 1997 SC 569; The State v. Anwar Saifullah Khan PLD 2016 SC 276; Ahmad v. Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroz Khan v. Capt. Ghulam Nabi PLD 1966 SC 424; Usman Khan v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdul Rashid v. Umid Ali and another PLD 1975 SC 227; Taj Muhammad v. Muhammad Yousaf and another PLD 1976 SC 234; Farid v. Aslam PLD 1977 SC 4 and Fazalur Rehman v. Abdul Ghani PLD 1977 SC 529 ref.
2018 Y L R 2487
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan, J
MUHAMMAD SIDDIQUE---Petitioner
Versus
Mst. BIBI SALIMA and 10 others---Respondents
C.R. No.36-M of 2016 with C.Ms. Nos.32 of 2016 and 4-C of 2017, decided on 7th December, 2017.
Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Inheritance---Contention of plaintiff was that she being daughter of the deceased was entitled for her Shari share in his property---Trial Court passed preliminary decree of partition of the property according to Shari shares of all the legal heirs of the deceased---Validity---Plaintiff and defendant were real sister and brother inter-se---Both the parties were legal heirs of the deceased---Judicial pronouncements in favour of defendant had been exhibited during trial but its source had not been disclosed---Descriptions of properties in the said pronouncements had not been mentioned---No credence could be extended to the said pronouncements which had not been produced from proper custody---Revision was dismissed in circumstances.
Aftab Rahim for Petitioner.
Alam Zeb for Respondents.
2018 Y L R 2499
[Peshawar (D.I. Khan Bench)]
Before Shakeel Ahmad, J
Haji KHADIM HUSSAIN and others---Petitioners
Versus
AZMATULLAH and others---Respondents
W.P. No.499-D with C.M. No.525-D of 2015, decided on 6th July, 2017.
Civil Procedure Code (V of 1908)---
----O. XVI, Rr. 1 & 2---Suit for declaration--- List of witnesses---Permission to call or produce witness other than those mentioned in the list of witnesses---Good cause---Scope---Plaintiffs after closure of evidence submitted an application for production of additional evidence which was dismissed and revision petition was also dismissed---Validity---Permission to summon a witness not included in the list of witnesses could be allowed by the Court provided a good cause was shown for such omission---Case after closure of evidence of plaintiffs was adjourned for evidence of defendants---Parties after framing of issues should submit list of witnesses in the Court within seven days---Court could permit to summon only those witnesses who were mentioned in the list of witnesses---Plaintiffs in the present case had omitted to submit list of witnesses within statutory period of seven day after settlement of issues---Party could not be permitted to summon witnesses beyond the list so submitted except with the permission of Court showing good cause for such omission---Court in order to grant such permission had to record reasons---Constitutional petition was dismissed in circumstances.
Ahmad Ali Khan for Petitioners.
Ch. Muhammad Shahid and Adnan Ali Khan, A.A.G.. for Respondents.
2018 Y L R 2505
[Peshawar (Abbottabad Bench)]
Before Syed Muhammad Attique Shah, J
NASIR SHAH---Petitioner
Versus
Mst. NASIRA BIBI and another---Respondents
Writ Petition No.1090-A of 2015, decided on 4th May, 2017.
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 5---Family Courts Act ( XXXV of 1964), S. 5, Sched.---Suit for dissolution of marriage, possession of house in lieu of dower, recovery of maintenance allowance, gold ornaments and dowry articles---Entries of Nikah Nama; evidentiary value--- Scope--- Petitioner/ husband contended that only one room along with veranda of the house was given to the respondent in lieu of dower amount so, two Courts below had wrongly decreed the entire house in her favour---Respondent/wife contended that the entire house was given to her---Validity---Contents of Column No. 16 of exhibited Nikah Nama clearly showed that entire house with veranda was incorporated in said Nikah Nama---Petitioner admitted the contents of the columns of exhibited Nikah Nama as correct during the cross-examination and stated that in lieu of dower amount of Rs. 100000/-, one house along with verandah and courtyard was given to the respondent, which was then in her possession---Petitioner had never challenged the validity of Nikah Nama before any Court since the date of marriage---Petitioner had not objected the Nikah Nama at the time of its exhibition---Instrument of Nikah Nama was registered under S.5 of the Muslim Family Laws Ordinance, 1961 which had got sanctity under the law and held the status of primary evidence in the matrimonial matters and determined the terms and conditions of the marriages between the parties---Dower was to be paid in consideration of marriage to the wife by the husband and later on he could not deny or refuse the same to his wife unless and until wife waived off the same by herself or was so declared by the competent forum under the law---Documentary evidence in shape of Nikah Nama in matrimonial matters could not be bypassed on the basis of mere oral testimony of husband---No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly.
Syed Babar Ali Shah for Petitioner.
Ms. Sumera Swati for Respondent.
2018 Y L R 2518
[Peshawar (Abbottabad Bench)]
Before Lal Jan Khattak and Mohammad Ibrahim Khan, JJ
IMRAN MEHMOOD---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No. 139-A of 2012, decided on 8th November, 2016.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account was supported by medical evidence---Prosecution case was that the complainant was married to the accused three years back and after spending one year, due to strained relations, her husband pronounced oral divorce and turned out of his house---Incident took place at 5.30 p.m., when consequent upon obtaining a decree from the Family Court regarding dowry articles, she along with her mother and both the deceased, with two bailiffs of the court, went to the house of the accused for taking the dowry articles---Accused, his brother and mother were present there---During the course of loading household dowry articles on the vehicle, brother and mother of the accused raised lalkara to him to kill them, whereupon accused started firing with his pistol upon the complainant party, as a result father and uncle of complainant died on the spot---Record transpired that occurrence took place in presence of four eye-witnesses, out of whom two were independent ones, bailiffs of the court, who were present on the spot at the time of occurrence for the execution of the decree of Family Court---Record further depicted that the occurrence took place on 23.12.2010 at 5.30 p.m. whereas the report was lodged at 6.26 p.m. and the accused was arrested on the same day at 9.30 p.m. along with weapon of offence, which fact had not been denied by the accused---Accused, after three days of arrest, volunteered to record his confessional statement, thus he was produced before the Judicial Magistrate, where he did so by narrating the same story, as asserted by the complainant in her FIR---After adopting all legal and codal formalities, the needful was lawfully done and after recording confessional statement, the Judicial Magistrate issued proper certificate---Parties were closely related inter se, as the deceased were real maternal uncles of the accused and the motive for the crime had also been mentioned not only in the FIR but also in the confessional statement recorded by the accused---No possibility question of mis-identity or exaggeration existed because the motive had properly been explained by both the parties---Independent witnesses/ bailiffs were present on the spot at the time of occurrence consequent to the execution of decree granted by the Family Court---Said persons appeared as witnesses and fully supported the version of the prosecution despite the fact that they were confronted with searching and taxing cross-examination but nothing could be extracted from their lips beneficial to the accused---Medico Legal Report of one deceased showed that he sustained firearm injury on the right side of his chest whereas other deceased had sustained firearm injuries not only on his neck interiorly below the chin but on the top of vault---Similarly in the FIR, complainant had mentioned injuries on the deceased---If taking in juxtaposition the Medico Legal Reports and FIR, both were very much in line and could not be refuted as such proved the charge against the accused without any shadow of doubt---Circumstances established that prosecution had succeeded in making out a case against the accused without any shadow of doubt---Appeal was dismissed.
Muhammad Riaz v. The State PLD 1994 Pesh. 102; Tofail Masih v. The State 1985 SCMR 838; Muhammad Akram v. The State 1985 SCMR 843; Javed Iqbal v. The State 1982 SCMR 447; Muhammad Ikram v. The State 1999 SCMR 406; Khudayar v. The State 1992 SCMR 357; Ansar Ahmad Khan Barki v. The State 1993 SCMR 1660; State v. Qaisar 1995 MLD 535; Parvez v. The State 1995 MLD 544; Muhammad Rafiq v. The State PLD 1974 SC 65; Mian Jan v. The State PLD 1980 Pesh. 92; Ghulam Qadir v. The State 2007 SCMR 782; Arif v. The State PLD 2006 Pesh. 05; Ashfaq Ahmad v. The State 2007 SCMR 641; Asad Mehmood v. Akhlaq Ahmad 2010 SCMR 868; Muhammad Ahmad v. The State 1997 SCMR 89; Zahoor Ahmad v. The State 2007 SCMR 1519; Taj Ali Khan v. The State 1999 SCMR 2444; Ziaullah v. The State 1993 SCMR 155; Khizar Hayat v. Imtiaz Ali Shah 2004 SCMR 845; Muhammad Ashraf v. The State 2001 SCMR 73; Dr. Javed Akhtar v. The State PLD 2007 SC 249; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Noor Muhammad v. The State 2005 SCMR 1958; Asghar Baig v. The State 1999 SCMR 2438; Muhammad Tashfeen v. The State 2006 SCMR 577; Liaqat Ali v. The State 1998 PCr.LJ 216; Muhammad Tofail v. The State 1999 SCMR 1981 and Mir Hassan v. The State 1999 SCMR 1418 ref.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that four empties of 30-bore pistol were recovered from the spot---Accused was arrested within a couple of hours along with weapon of offence---Both the empties and pistol were sent to forensic Science Laboratory for analysis, report whereof was received not only in affirmative but with the remarks that the pistol was giving the smell of fresh discharge---Said circumstances connected the accused with the commission of offence.
Shad Muhammad Khan for Appellant.
Muhammad Naeem Abbasi, A.A.G. for the State.
Masood Azhar for the Complainant
2018 Y L R 2535
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ
SULTAN-E-ROME---Appellant
Versus
The STATE and another---Respondents
Cr. A. No.213-M of 2013 and Cr. R. No.57-M of 2015, decided on 29th January, 2018.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 423 & 439---Penal Code (XLV of 1860), Ss. 302, 201, 202, 404 & 34---Qatl-i-amd, dishonestly causing disappearance of evidence of offence or giving false information to screen offender, intentional omission to give information of offence by person bound to inform, misappropriation of property possessed by deceased person at the time of his death, common intention--- Revision--- Maintainability--- Revision petition for enhancement of sentence---Scope---Accused persons were charged for committing murder of the father of complainant, snatching Rs. 1,70,000/- from him and retaining the outstanding amount of Rs. 2,70,000/----Accused and co-accused were tried by Trial Court and both were convicted---Accused had preferred appeal but the co-convict had not challenged his conviction, however, State had filed criminal revision for enhancement of sentence---Effect---Section 439(6), Cr.P.C. described that if the accused had not filed appeal against his conviction and High Court while exercising revisional jurisdiction was under statutory obligation to hear the accused to whom notice had been given under S. 439(2), Cr.P.C., as he was also entitled to show cause against his conviction---Record showed that the counsel for the accused and co-convict argued the entire case on merits---No legal embargo, in circumstances, existed to appraise the case of the non-appealing accused on merits to adjudge as to whether the evidence adduced by prosecution during the trial was sufficient enough to hold him guilty or not.
Mst. Muhammadia v. Zari Bacha and another PLD 1982 Pesh. 85 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 423---Power of appellate court in disposing of appeal---Scope---If co-accused had filed the appeal, court while exercising powers under S.423 Cr.P.C., was obliged to consider the case of the non-appealing accused and could pass any order according to the merits of the case.
Amin Ali and another v. The State 2011 SCMR 323 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 201, 202, 404 & 34---Qatl-i-amd, dishonestly causing disappearance of evidence of offence or giving false information to screen offender, intentional omission to give information of offence by person bound to inform, misappropriation of property possessed by deceased person at the time of his death, common intention---Appreciation of evidence---Benefit of doubt---Accused persons were charged for committing murder of the father of complainant, snatching Rs. 1,70,000/- from him and retaining the outstanding amount of Rs. 2,70,000---Record showed that occurrence took place on 5-7-2011, one month prior to that father of the complainant left for the area in question, where allegedly the occurrence had taken place---Complainant kept quiet till 5-8-2011 when the dead body of the deceased was recovered---Complainant's version was that his father lastly contacted him on phone on 5-7-2011 and informed him regarding recovery of Rs. 1,70,000/- from debtors and his stay with co-accused till the recovery of Rs. 2,70,000/- from him---Entire story set out by prosecution since the alleged disappearance of the deceased on 5.7.2011, his roaming all alone in that area with huge amount far away from his native town and the manner of his search adopted by complainant was not appealable to reason---Prosecution had brought nothing on record with regard to phone calls between the deceased and complainant as alleged by him in his report---Photographs available on record showed that the dead body was naked, which inferred that there was some other reason of the murder in the background which could not be discovered from the available record---Committing murder of a person at night time for the cause of money and thereafter removing his clothes before burial were not the befitting circumstances in the story narrated by the prosecution---Site-plan, prepared by the Investigating Officer, wherein the accused persons and deceased had been shown inside the room but strangely no empty was recovered at that time and two empties were recovered from the spot on the following day when the house was again searched by police---No explanation was furnished as to from where the empties were recovered---Recovery of crime empties from the spot during second search of the house after one month of the occurrence cast a serious doubt on its genuineness---Site-plan was mute regarding bullet marks on the spot, which pricked judicial mind regarding the mode and manner of the occurrence---Recovery of the dead body from the field would not be sufficient to established guilt of co-accused---Medical evidence showed firearm injuries on the person of the deceased but when the dead body was disinterred, Medical Officer did not mention any sort of soil residue on the corpse even garments of the deceased were not taken into possession---Record transpired that there was no eye-witness of the occurrence even to the extent that the convicts were seen by someone while burying the dead body in the fields---Complainant who was hailing from far flung area retrieved the dead body of his father on his own from the open fields allegedly owned by co-accused, which was highly improbable---Occurrence was unseen one---Recovery of crime empties was also doubtful as the same had been effected after one month of the occurrence which was highly improbable---Dead body of the deceased had been recovered from the fields allegedly owned by co-accused---No independent evidence was available on record to corroborate the confession allegedly recorded by co-accused---To maintain conviction of both the accused on the basis of said confession was highly unsafe in circumstances---Accused having been convicted on the strength of the confessional statement of co-accused, which had been disbelieved against its maker, same could be considered against the accused, when no evidence was available on record against him---Appeal was allowed and both the accused and co-accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.
Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 201, 202, 404 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, dishonestly causing disappearance of evidence of offence or giving false information to screen offender, intentional omission to give information of offence by person bound to inform, misappropriation of property possessed by deceased person at the time of his death, common intention---Appreciation of evidence---Retracted judicial confession---Scope---Co-accused was arrested on 7-8-2011, while his statement was recorded by Judicial Magistrate on 8-8-2011, but the statement of complainant showed that co-accused was arrested on 5-8-2011, when dead body was recovered---Said facts suggested that arrest of co-accused was suppressed by police on the same day and thereafter he was kept for two days in wrongful confinement without legal authority---Even the Judicial Magistrate made no effort to examine him through Medical Officer before recording his confessional statement---Confession of co-accused could not be regarded as true and voluntary---Co-accused alleged that police had tortured him time and again for recording confession---Retracted confession, if not corroborated by independent evidence of reliable nature, could not be made basis for conviction.
Muhammad Ismail and others v. The State 2017 SCMR 898 rel.
(e) Criminal Procedure Code (V of 1898)---
----S. 164---Confession---Voluntariness---Voluntariness of confession was doubted when recorded after unauthorised confinement of accused.
The State v. Asfandyar Wali and 2 others 1982 SCMR 321 and Hamzo v. The State PLD 1960 Kar. 817 rel.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 342 & 340(2)---Statement of accused in defence---Scope---Purpose of examination of accused under S. 340(2), Cr.P.C. was almost different from his examination under S. 342 Cr.P.C.---Statement of accused recorded under S. 340(2), Cr.P.C. was tendered to disprove the case set up by prosecution---Confronting the accused with a question during his examination under S. 342, Cr.P.C. with a view to seek his option for recording his statement on oath was not just a formality---Object of the said provision of law was to enable the accused to explain his position---Accused when opted to record his statement then the court would be duty bound to appraise the same in the light of prosecution evidence.
Razaullah for Appellant (in Cr. A. No.213-M of 2013).
Rafiq Ahmad, Assistant A.G. for the State (in Cr. A. No.213-M of 2013).
Complainant in person (in Cr. A. No.213-M of 2013).
Rafiq Ahmad, Assistant A.G. for the State (in Cr. R. No.57-M of 2015).
Razaullah for Respondents/convicts (in Cr. R. No.57-M of 2015).
2018 Y L R 2589
[Peshawar (D.I. Khan Bench)]
Before Shakeel Ahmad, J
MUHAMMAD ASHIQ---Appellant
Versus
The STATE---Respondent
Cr.A. No.55-D of 2016, decided on 17th August, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 320 & 427---Qatl-i-khata by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Benefit of doubt---Son of complainant was hit by the unknown driver of the vehicle due to rash and negligent driving, resultantly, he got injured and became unconscious, and thereafter died---Record showed that in the initial report recorded through the murasila, no eye-witness had been cited by the complainant---Eye-witness shown in the site-plan was not examined and another person, who posed himself to be eye-witness of the alleged occurrence was not examined under S. 161, Cr.P.C. by the Investigating Officer---Investigating Officer had admitted in his cross-examination that many people were present on the spot at the time of occurrence, but except eye-witness, no one had seen the alleged occurrence---Alleged eye-witness had admitted that he had not been cited as eye-witness in the site plan---Said witness, though had stated that the injured was taken to the hospital and informed his father about the incident and that he was co-villager of the complainant, but he was neither named as eye-witness in the initial report nor cited as eye-witness in the site-plan---Said witness admitted that the matter was reported to the local police by him and he had not alleged that the accused was driving vehicle negligently and rashly; in such like cases, prosecution had to prove that besides over-speed driving, accused was also guilty of driving rashly and negligently---High speeding could not be made a ground for presumption that driver was responsible for the accident, unless it was established in a reasonable manner that besides, the over speeding driver of the vehicle was found rash and negligent while driving---Eye-witness had not alleged that the vehicle was being driven by the accused rashly and negligently---Said witness was examined in the court for the first time on 27.10.2015 and the alleged occurrence had taken place on 23.4.2012, which showed that the said witness was introduced at a belated stage, and that he had not seen the alleged occurrence, and was not present on the spot---Prosecution had failed to conduct identification parade of the accused through the eye-witness to connect him with the alleged crime-Circumstances established that prosecution could not prove its case against the accused beyond reasonable doubt, therefore, appeal was allowed and the accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.
Farman Ullah v. The State PLD 2007 Pesh. 393 rel.
(b) Criminal trial---
----Administration of justice---No one would be construed into the crime in the absence of legal admissible evidence; there was no scope and space for surmises and conjectures even with high presumptions.
Miyan Muhammad Latif v. The State PLD 1966 SC 2001 rel.
Muhammad Anwar Awan for Appellant.
Ahsan Bilal Langrah and Adnan Ali Khan, A.A.G. for the State.
2018 Y L R 2601
[Peshawar (Abbottabad Bench)]
Before Syed Afsar Shah and Syed Muhammad Attique Shah, JJ
MUHAMMAD TAMAZ KHAN---Petitioner
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA, through Director General and 8 others---Respondents
Writ Petition No.444-A of 2013, decided on 3rd October, 2017.
General Clauses Act (X of 1897)---
----S.21---Power to amend, vary or rescind notification---Scope---Petitioner's wife and son died of flood and thunder bolt---Petitioner was paid Rs.300000 for each deceased as compensation in terms of National Calamity (Prevention and Relief) Act, 1958---Provincial Government subsequently issued notice to the petitioner for recovery of Rs.400000 which was recovered from the petitioner---Contention of the authorities was that petitioner was entitled to receive only Rs.100000 for each deceased under the notification dated 11.8.2006 and he was inadvertently paid Rs.300000 for each deceased under the notification dated 18.8.2010---Validity---Once the petitioner had been given relief under Notification, then the same could not be withdrawn by the authorities---Petitioner had not committed any fraud or made any misrepresentation to the authorities regarding the applicability of either of the notifications---Even the grant of compensation did not suffer from any jurisdictional defect, as the competent authority had duly approved the compensation---Authorities were left with no authority to ask or demand for the refund of the amount---Authorities were directed to release back the recovered amount of Rs.400000 to the petitioner---Constitutional petition was allowed accordingly.
Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayat-ullah Farrukhi PLD 1969 SC 407 rel.
Sardar Muhammad Asif for Petitioner.
Raja Muhammad Zubair, AAG. for Respondents.
2018 Y L R 2638
[Peshawar (Bannu Bench)]
Before Shakeel Ahmad, J
Mir HAKEEM KHAN and another---Petitioners
Versus
GULAAP KHAN and 2 others---Respondents
Criminal Miscellaneous Bail Application No. 475-B of 2017, decided on 15th February, 2018.
Criminal Procedure Code (V of 1898)---
----S. 497(1)---Penal Code (XLV of 1860),Ss. 302, 324, 427 & 34---Qatl-i-amd attempt to commit qatl-i-amd, mischief and common intention---Bail, grant of---Principles---Legislative history of provisos third and fourth of S.497, Cr.P.C.---Statutory delay in conclusion of trial---Question was whether the period spent by accused in the Jail as convict was countable under third proviso of S.497, Cr.P.C.---Petitioners/accused persons were in jail when High Court remanded their case for de novo trial but , meanwhile some miscreants launched attack on said jail; broke it and forcibly took away all the prisoners including petitioners who were later released from the private captivity---Right of the accused to be enlarged on bail under the third proviso to S. 497(1), Cr.P.C. was a statutory right which could not be denied under the discretionary power of the Court to grant bail, however, bail under the third proviso to S. 497, Cr.P.C. could be refused to an accused only on the ground that the delay in the conclusion of trial had been occasioned on account of any act or omission of the accused or any other person acting on his behalf---Bail under third proviso to S.497(1), Cr.P.C. could also be refused to an accused by the Court, if case of the accused fell under the fourth proviso to S. 497(1), Cr.P.C. but in all other cases the Court must grant bail---Early trial was an inherent right of accused, and inordinate delay in imparting justice was likely to cause erosion of public confidence on one hand, and on the other it was bound to create sense of helplessness, despair and feelings of frustration apart from adding to the woes of the public---Petitioners were entitled to grant of bail, as they were to face the agonies of protracted trial once again and after remand of their case they could not be kept in jail for indefinite period, High Court observed that the whole period spent in jail was countable while deciding the bail petition on statutory delay and it was immaterial whether that period spent was as convict or under trial prisoner---Petitioners in the present case were in continuous detention and had spent more than three years in jail, therefore, they were entitled for grant of bail as a matter of right and not as a matter of grace---Accused persons were admitted to bail, in the circumstances.
Ghulam Jillani v. SHO Gulberz PLD 1975 Lah. 210; Ahrar Muhammad's case PLD 1974 SC 224; Sh. Liaquat Hussain's case PLD 1999 SC 504; Wazir Ali v. The State PLD 2005 Kar. 201; Sher Ali alias Sheri v. The State 1998 SCMR 190; Shahzad Khan v. The State 2018 PCr.LJ 104 and Behram v. The State 2003 PCr.LJ 73 ref.
Pir Liaqat Ali Shah for Petitioners.
Shahid Hameed Qureshi, Addl. A.G. for the State.
Farooq Khan Sokari for Respondents.
2018 Y L R 2663
[Peshawar (Mingora Bench)]
Before Mohammad Ibrahim Khan, J
SHAH HUSSAIN---Petitioner
Versus
Mst. NADIA KHAN and 2 others---Respondents
Writ Petition No.621-M with C.M. No.947-M of 2016, decided on 24th May, 2017.
(a) Family Courts Act (XXXV of 1964)---
----S.5, Sched.---Constitution of Pakistan, Art.199---Dissolution of marriage on the basis of Khula---Constitutional petition---Maintainability---Petitioner moved appeal before District Judge---Effect---Validity---Dissolution of marriage effected through Khula was neither revocable nor appealable and only decision regarding dower was appealable---Petitioner/ex-husband, could at the best invoke constitutional jurisdiction but he preferred family appeal at District Court---Present constitutional petition, in circumstances, was hit by the doctrine of "laches"---High Court, in circumstances would not decide the issue---Constitutional petition was dismissed accordingly.
Mst. Aamina Abdullah v. Judge Family Court, Maltan and others 2011 CLC 1839 and Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004 ref.
(b) Muslim Family Laws Ordinance (VIII of 1961)---
----S.6(5)(a)---Family Courts Act (XXXV of 1964), S.5, Sched.---Suit for dissolution of marriage and recovery of dower---Payment of unpaid dower ---Burden of proof---Petitioner/ex-husband contended that he had delivered all 15 tolas of gold ornaments in lieu of dower which were returnable in the wake of dissolution of marriage sought by respondent/ex-wife on Khula---Respondent/ex-wife contended that she was entitled to recovery of outstanding 13-½ tolas golden ornaments in lieu of dower---Validity---Evidence showed that respondent as well as her witness had categorically stated that she had never received outstanding gold ornaments from her husband---Husband, in circumstances, was to prove the payment of amount of dower or gold ornaments to have been given to the respondent/ex-wife---Said burden had never been discharged by husband leaving room for acceptance of the claim of his wife to believe in its entirety---No illegality or infirmity had been noticed in the impugned judgment passed by the Family Court---Constitutional petition was dismissed accordingly.
Abdul Sattar v. Mst. Shagufta Banu and 2 others 2014 CLC 15 ref.
Abdul Jalal for Petitioner.
Hayat Ali for Respondents.
2018 Y L R 2691
[Peshawar (Mingora Bench)]
Before Shakeel Ahmad, J
UMAR AKHTAR---Petitioner
Versus
SHER SAID and 8 others---Respondents
Civil Revision Petition No.464-P with C.M. No.516 and Revision Petition No.131-P of 2011, decided on 8th May, 2018.
Contract Act (IX of 1872)---
----S. 11---Qanun-e-Shahadat (10 of 1984), Art. 79---Contract and transaction of exchange of property with minor---Effect---Document---Proof---Procedure---Improvement on the suit property without consent of landlord/owner---Effect---Plea of plaintiff was that contract and exchange deed were fictitious and fake---Suit was decreed but subject to payment of Rs. 10,00,000/- as cost of improvement---Validity---Any contract or transaction entered into with the minor was void ab-initio---Minor was not competent to enter into any contract and no right or liability could be attached to or arise out of a void contract---Property of a minor could be alienated through his guardian---Transaction, in question, was not executed by the minor through his guardian or next friend---Neither scribe nor marginal witnesses of exchange deed were produced nor any explanation was given for not producing the said witnesses---Only one marginal witness had been produced---Exchange deed was hit by Art. 79 of Qanun-e-Shahadat, 1984---Report of local commission had reflected improvements in the suit property but same was silent as to by whom it was made---Improvements, if any made by the defendants without prior consent of landlord/owner were not approved---Findings recorded by the courts below to the extent of improvements were illegal and against evidence on record and same were set aside---Revision was dismissed in circumstances.
Abdul Zahir v. Haji Gulab 2000 CLC 4; Shahbaz Rasool v. Aamir Imran 2011 CLC 1941; Mst. Gulshan Hamid v. Abdul Rahman and others 2010 SCMR 334; Parvez Alam Khan v. Muhammad Mukhtar Khan 2001 CLC 1489 and Sherin Zada and 2 others v. Imdad Hussain and 10 others 2010 MLD 1152 rel.
Masood ur Rehman for Petitioner.
Amir Gulab Khan for Respondents.
2018 Y L R 75
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
JUMA GUL---Petitioner
Versus
GOVERNMENT OF PAKISTAN MODEL CUSTOMS COLLECTORATE through Collector and 2 others---Respondents
C.P. No.132 of 2017, decided on 9th October, 2017.
Customs Act (IV of 1969)---
----S. 156(1)(89)(8)---Imports and Exports (Control) Act (XXXIX of 1950), S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Availability of alternate remedy---Effect---Petitioner had assailed confiscation of fertilizer of foreign origin which was seized by customs authorities when it was being smuggled out of Pakistan---Validity---Petitioner, instead of availing proper remedy of challenging order-in-original before the Collector (Appeals) under S. 193 of Customs Act, 1969 had invoked Constitutional jurisdiction of High Court---Petitioner, in presence of alternate remedy, could not be allowed to ventilate his grievance through Constitutional petition bypassing the competent forum---Assertions of petitioner revolved around factual dispute, truthfulness or otherwise of which could not be determined without inquiry and recording of evidence---High Court, in circumstances, dismissed the constitutional petition.
Muhammad Younas Khan and 12 others v. Government of N.-W.F.P through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618; Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Muhammad Abbasi v. SHO Barakahu and 7 others PLD 2010 SC 969 and Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.
Zakria Khan Nasar for Petitioner.
Syed Ikhlaq Shah Assistant Attorney General for the State.
2018 Y L R 110
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
Malik SHER MUHAMMAD and another---Appellants
Versus
Malik KHAIR MUHAMMAD and 4 others---Respondents
Criminal Acquittal Appeal No.265 of 2008, decided on 2nd January, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 337-A, 337-D, 337-F & 34---Criminal Procedure Code (V of 1898), S.417---Shajjah, jaifah, ghayr-jaifah---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused-respondents armed with pistol, iron pipe, knife and dagger had beaten the complainant, who received injuries on his right wrist, right shoulder and nose---At the hue and cry of complainant, his father came at the spot, accused-respondents had also beaten his father with pipe who received injuries on his nose and other parts of the body---Ocular account was furnished by the injured witnesses but they failed to describe as to which of the accused persons was armed with pipe, who was holding knife and who was having iron rod---Witnesses had alleged that accused-respondent had a pistol but despite armed with pistol, accused did not make any fire---During investigation, neither the prosecution could recover any pistol, knife or dagger nor the medical certificates of the injured showed any injury of knife---Recovery witnesses had deposed that they found a piece of pipe lying in a building, which was taken into possession by Investigating Officer---Said witness did not confine himself to the extent of recovery of pipe rather by making improvement stated that Investigating Officer took into possession the pipe with which father of complainant was injured---Evidence furnished by the second recovery witness showed that the pipe produced before the court was not sealed at the spot---Statements of both the recovery witnesses were neither straightforward, trustworthy, reliable nor confidence inspiring---Statements of said witnesses were contradictory and based on improvements--- Failure of prosecution to seal the recovered pipe was fatal to the prosecution case---Investigating Officer deposed that complainant was treated at the hospital and then he took him to the place of incident but the witnesses had not stated regarding taking of complainant by the police to the place of incident---Defence produced three witnesses in order to prove that respondent was not present at the place of occurrence at the time of incident---All the defence witnesses were independent witnesses who, on the day of occurrence, were busy in discharge of their official duties---Said witnesses stated that on the day of occurrence, respondent remained with them for the purpose of distributing the sugar---Said defence witnesses were subjected to lengthy cross-examination but nothing favorable to the complainant-appellant could be extracted---No reason was available to disbelieve and discard the testimony of defence witnesses especially when prosecution case was full of doubts, based on contradictory statements of prosecution witnesses and dishonest improvements made by prosecution witnesses---Circumstances established that prosecution had failed to bring home the charge against the respondents beyond reasonable doubt and the defence succeeded to create serious doubts and dents in the prosecution case---Appeal against acquittal was dismissed in circumstances.
Ameer Bakhsh and others v. The State 2006 YLR 3188 and Roshan Ali alias Iqrar v. The State 2015 MLD 1618 rel.
(b) Criminal trial---
----Benefit of doubt---Scope---Defence was not required to create a series of dents and doubts in prosecution case---For giving the benefit of doubt, if a single doubt was created even then the defence was entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230 and Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 337-A, 337-D, 337-F & 34---Criminal Procedure Code (V of 1898), S.417---Shajjah, jaifah, ghayr-jaifah---Appreciation of evidence---Appeal against acquittal--- Presumption--- Double presumption of innocence was attached to the order of acquittal---Court showed reluctance to set aside findings of acquittal unless it was proved that the findings arrived at by the court while acquitting the accused were based on misreading and non-reading of evidence or the acquittal was perverse, shocking, artificial and ridiculous---In the present case, no illegality, misreading, non-reading of evidence or that the findings arrived at by the trial court were perverse, shocking, artificial and ridiculous could be pointed out---Appeal against acquittal was dismissed in circumstances.
Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.
(d) Criminal Procedure Code (V of 1898)---
----S.417(2-A)---Appeal against acquittal---Assessment of evidence--- Scope---Standards of assessing evidence in appeal against acquittal and that of appeal against conviction were quite different---Appreciation of evidence in appeal against conviction was done strictly and in appeal against acquittal, such rigid method of appreciation of evidence was not applied as there was already findings of acquittal given by the trial court after proper analysis of evidence on record.
Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
Muhammad Aslam Chishti for Petitioners.
Yahya Baloch, D.P.G. for the Respondents.
2018 Y L R 187
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
STATE through Special Public Prosecutor, Anti-Corruption---Appellant
Versus
ALLAH DINA---Respondent
Crl. Acq. Appeal No.330 of 2011, decided on 15th May, 2017.
Penal Code (XLV of 1860)---
----Ss. 409, 420, 465, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 417---Criminal breach of trust by public servant or by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery, forgery for the purpose of cheating, using as genuine a forged document, abetment, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused-respondent got transferred the land of accused of another case in the name of his sister while the said accused of another case was in judicial custody---Record showed that accused of another case was in judicial custody from 8th September, 2008 to 30th September 2008, whereas the mutation showed his presence before the revenue authorities on 22nd September 2008---Contents of mutation reflected that same was prepared on 22nd August 2008, however, attested and signed by the parties in presence of Naib Tehsildar on 14th October 2008---Said document showed that transfer of property was made on 14th October, 2008 instead of 22nd September, 2008, while during the said dates, accused of another case was on bail---Attending circumstances suggested that presence of that accused before the Revenue Autho-rities on 14th October, 2008 could not be ruled out---Circumstances established that there was no evidence available on record to connect the accused-respondent with the commission of offence---Appeal against acquittal was dismissed in circumstances.
Amir Hamza Mengal, Additional P.G. for the State.
Muhammad Saleem Lashari for Respondent.
2018 Y L R 507
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SADDAR-UD-DIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 31 of 2015, decided on 17th October, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Benefit of doubt---Interested witnesses---Unhurt eye-witnesses, presence of---Proof---Role of audience played by four witnesses letting the culprits to murder deceased and to escape unhurt was enough to create doubt in the case of prosecution---Complainant was eye-witness of occurrence and was brother of deceased while remaining eye-witnesses were father and two paternal uncles of deceased but their presence had become doubtful as none of them accompanied the deceased (then injured), to the hospital---Evidence of interested and related witnesses lacked independent corroboration in material aspects---No recovery of crime weapon was effected from the possession of accused---High Court extending benefit of doubt to accused acquitted him while setting aside conviction and sentence awarded to him by Trial Court.
Muhammad Asif v. The State 2017 SCMR 486; Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 38 & 39---Disclosure made by accused--- Recovery--- Scope--- When recovery of whatsoever nature had not been effected pursuant to disclosure memo. the same was inadmissible under Arts. 38 & 39 of Qanun-e-Shahadat, 1984.
(c) Criminal trial---
----Benefit of doubt---Principle---Accused could be deprived of benefit of doubt, merely because there was only one circumstance, which had created doubt in prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Nadir Ali Chlagari for Appellant.
Jameel Akhtar Gajani, D.P.G. for Respondent.
2018 Y L R 654
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ
MUHAMMAD AZEEM KAKAR---Petitioner
Versus
SESSIONS JUDGE, ZHOB and another---Respondents
C.P. No.368 of 2017, decided on 29th May, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 343, 220, 109 & 34---Criminal Procedure Code (V of 1898), Ss. 561-A & 265-K---Wrongful confinement for three or more days, commitment for trial, abetment, common intention---Petition for quashment of proceedings---Alternate remedy---Scope---Allegation against the accused (official of Levy Force) was that he being public servant wrongfully confined son of complainant for six days and two of his friends for nine days---Trial Court called upon the accused-petitioner to face the trial---Accused-petitioner sought quashment of said order---Validity---Accused-petitioner sought acquittal from the charge at a premature stage---Record showed that charge had already been framed but no evidence was recorded---Section 265-K, Cr.P.C. placed discretion with Trial Court to acquit the accused at any stage of the case---Said provision provided to the Trial Court co-extensive power available to High Court under S.561-A, Cr.P.C. and both could be resorted to---Accused-petitioner sought quashment of criminal case without availing the alternate remedy provided under S. 265-K, Cr.P.C.---Constitutional petition would be competent when the petitioner was handicapped in availing of alternate remedy under S. 265-K, Cr.P.C. for acquittal---Circumstances established that no case for quashment of proceedings was made out---Petition was dismissed in circumstances.
Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317; Akbar Hussain v. M.M.K.A Zai 1968 SCMR 386; Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607 and Raja Haq Nawaz v. Muhammad Afzal and 4 others 1971 SCMR 698 rel.
(b) Criminal Procedure Code (V of 1898)---
----S.561-A---Quashment of proceedings---Jurisdiction--- Scope--- Jurisdiction for quashment of proceedings was of an extra-ordinary nature to be exercised only in extra-ordinary cases where no other remedy was available.
Abdul Samad Mandokhail for Petitioner.
2018 Y L R 718
[Balochistan]
Before Nazeer Ahmed Langove, J
AHMED KHAN FLORAID COMPANY through owner---Petitioner
Versus
SECRETARY MINES AND MINERALS GOVERNMENT OF BALOCHISTAN and 2 others---Respondents
C.P. No.103 of 2017, decided on 16th February, 2017.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Application for grant of "No objection certificate" for applying for prospecting licence for mining which was issued but without further respond---Alternate remedy---Effect---Two forums for redressal of grievance of petitioner were available but he had not availed---Constitutional jurisdiction could only be invoked by an aggrieved person when there was no alternate or efficacious remedy available to him---Petitioner had alternate remedy by approaching proper forum---Constitutional petition being not maintainable was dismissed--- Petitioner would be at liberty to approach the proper forum for redressal of his grievance.
Abid Ali Panezai for Petitioner.
Saleem Baloch, Adl: A.G. for the State.
2018 Y L R 942
[Balochistan]
Before Nazeer Ahmed Langove, J
ZULFIQAR ALI BAKHTIARI and others---Petitioners
Versus
Mst. KHALIDA BAKHTIARI and another---Respondents
Civil Revision No. 45 of 2015, decided on 16th November, 2017.
Civil Procedure Code (V of 1908)---
----S. 115---Suit for declaration and injunction---Concurrent findings of facts by two courts below---Revisional jurisdiction of High Court---Principles---Plaintiff sought her Sharai share in legacy/property left by predecessor-in-interest of parties---Suit was decreed by Trial Court in favour of plaintiff and appeal filed by defendants was dismissed by Lower Appellate Court---Validity---High Court while exercising revisional jurisdiction was not permitted to reopen or dilate upon merits of case---While exercising jurisdiction under S.115, C.P.C. High Court had to confine itself only to law points involved in the matter or any specific portion of evidence if omitted by courts below---Concurrent findings of facts and law arrived at by two courts below could only be disturbed if High Court would come to conclusion that same were illegal, unlawful, based on misreading and non-reading of evidence, shocking, perverse, artificial and fanciful---High Court maintained judgment and decrees passed by both courts below which were, after proper appreciation of entire material/evidence, available on record and taking into consideration all legal as well as factual aspects of case passed well-reasoned judgments/decrees and same were not open to any exception---Revision was dismissed in circumstances.
2015 SCMR 1091; Civil Appeal No.2688 of 2006 and Ghulam Ali v. Ghulam Sarwar Naqvi (Mst.) PLD 1990 SC 1 rel.
Nemo for Petitioner.
Tahir Ali Baloch, along with Respondent No.1.
2018 Y L R 1021
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
MUHAMMAD JAVED and others---Petitioners
Versus
ZAMEER HAIDER and 2 others---Respondents
Criminal Revision No. 37 of 2014, Criminal Jail Appeals Nos. 9 and 24 of 2015, decided on 25th September, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Accused was charged for the murder of brother of the complainant by firing with pistol---Record showed that illicit relations existed between the accused and wife of the deceased and the deceased was hurdle in their way---Accused, stated to have arrived from other city, stayed in a hotel and co-accused/wife of the deceased took the deceased to a Hakim, on their way back to home, incident of qatl occurred, which was premeditated and preplanned---Co-accused despite being the on same bike did not receive single bruise---Admittedly, except the lady co-accused, there was no other eye-witness of the incident, but circumstantial evidence; conduct of the accused persons, arrival of the accused from other city, his stay in a hotel; confessional statements of the accused persons; recovery of empty shells, blood stained clothes of the deceased with positive report; medical evidence furnished by the Medical Officer; cell phone data of the accused persons and accused going back to his native city after committing crime, made unbroken chain of circumstantial evidence---Prosecution had been able to prove its case against the accused persons beyond shadow of reasonable doubt in circumstances---Appeal against conviction and sentence was dismissed in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Minor discrepancies in the statements of prosecution witnesses---Effect---Minor discrepancies, in the statements of witnesses and irregularities in the investigation were of no avail to the defence and could be ignored in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Judicial confession--- Scope--- Confessional statement of the accused was recorded after following the procedure, which, admittedly, being not under the influence of the police, was admissible under the law and could be made basis for recording conviction.
Manjeet Singh v. The State PLD 2006 SC 30; Anwar Khan and another v. The State 2006 SCMR 1343 and Murad Ali v. The State 2007 SCMR 146 rel.
(d) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence from accused---Scope---Crime weapon not recovered by police but explained properly, would not be fatal to the case of prosecution.
2007 SCMR 146 rel.
(e) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Mitigating circumstance---Case was based on circumstantial evidence, mitigating circumstance existed particularly in favour of the lady accused, as such lesser punishment had rightly been awarded.
2017 SCMR 880 and 2017 SCMR 630 rel.
Ahsan Rafique Rana for Petitioners (in Criminal Revision No.37 of 2014).
Saif-ur-Rehman, Inamullah Kundi and Jamal Khan Lashari for Respondent No.1 (in Criminal Revision No.37 of 2014).
Abdul Karim Malghani for Respondent No.2 (in Criminal Revision No.37 of 2014).
Ameer Hamza Mengal, D.P.G. for the State (in Criminal Revision No.37 of 2014).
Saif-ur-Rehman, Inamullah Kundi and Jamal Khan Lashari for Appellant (in Criminal Jail Appeal No.09 of 2015).
Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No.09 of 2015).
Abdul Karim Malghani for Appellant (in Criminal Jail Appeal No.24 of 2015).
Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No.24 of 2015).
2018 Y L R 1157
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
ABDUL HAQ alias ABDULLAH---Appellant
Versus
MUHAMMAD NASEEM ACHAKZAI---Respondent
Criminal Acquittal Appeal No.17 of 2016, decided on 21st June, 2017.
(a) Penal Code (XLV of 1860)---
----S. 420---Cheating and dishonestly inducing delivery of property---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the appellant purchased a vehicle against Rs.7,50,000/- from alleged original owner and sold it out to some other person---Some one submitted an application to the police alleging that his vehicle (which was purchased by the appellant) was missing---Said vehicle was recovered from the last purchaser---Appellant with the connivance of respondent and alleged original owner got the vehicle in question on superdari, while the last purchaser took back his amount from the appellant---Trial Court acquitted the accused-respondent---Validity---Record showed that FIR of the case was registered after about four years from the date of committing alleged cheating, which was sufficient to make the case of prosecution highly doubtful and stance of complainant incredible---Record and testimony of the prosecution witnesses manifested that it was a civil transaction between the parties and civil liability, if any, but altered into a criminal case---Intention to deceive must exist at the time of inducement to deliver property, which in the present case was missing---Circumstances established that prosecution had failed to bring home the charge against the accused-respondent beyond reasonable doubt and defence had succeeded to create serious doubts and dents in the prosecution case---Appeal against acquittal was dismissed in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 420---Cheating and dishonestly inducing delivery of property---Scope---Offence of cheating was not committed if no deception was practiced---In cases of cheating and dishonestly inducing delivery of property, state of mind was to be ascertained from the conduct of the accused and the surrounding circumstances.
(c) Criminal trial---
----Conviction---Scope---Accused could not be convicted merely on presumption, unless proven guilty through reliable and confidence inspiring evidence.
(d) Criminal trial---
----Benefit of doubt---Principle---If a single doubt was created even then the defence was entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230 and Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
(e) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Accused after gaining acquittal, would enjoy double presumption of innocence in his favour---Court was normally reluctant to set-aside findings of acquittal unless it was proved that the findings arrived at by the Trial Court while acquitting the accused were based on misreading, non-reading of evidence or the acquittal was perverse, shocking, artificial and ridiculous.
Haji Paio Khan v. Sher Baiz and others 2009 SCMR 803 rel.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 410 & 417---"Appeal against acquittal" and "appeal against conviction"---Parameters---Appreciation of evidence in the appeal against conviction was done strictly and in the appeal against acquittal, such rigid method of appreciation of evidence would not be applied, as there was already finding of acquittal given by the Trial Court after proper analysis of evidence on record.
Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
Nemo for Appellant.
Ameer Humza Mengal D.P.G. for Respondent.
2018 Y L R 1240
[Balochistan]
Before Zaheer-ud-Din Kakar, J
SAIFULLAH---Appellant
Versus
NIAMATULLAH and 2 others---Respondents
F.A.O. No.1 of 2016, decided on 16th February, 2017.
Balochistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 13---Ejectment of tenant---Bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Scope---Landlords were owners of demised premises---Question of title had no relevance in the proceedings before the Rent Controller---Point for determination before the Rent Controller was the relationship of landlord and tenant over the demised premises---Tenant had no right to raise any objection with regard to ownership of landlord---Where tenant had denied the relationship of landlord and tenant and such relationship stood proved, no other course was left for the Rent Controller but to order his eviction---Statement of landlord on oath which was consistent with his averment made in the eviction petition was neither shaken nor there was anything to contradict the same, such statement would be sufficient for acceptance of ejectment application---If landlord failed to get the possession of demised premises within stipulated period or re-let it to some one else within a period provided by law, tenant had right to recover the possession of said premises---No illegality, irregularity, infirmity or perversity was pointed out in the impugned order passed by the Rent Controller---Tenant was granted two months' time to vacate and handover the demised premises to the landlord---Appeal was dismissed in circumstances.
Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170; Muhammad Shoaib Alam and others v. Muhammad Iqbal and others 2000 SCMR 903; 1996 SCMR 1178; 1980 SCMR 593; PLD 1982 SC 218 and 2012 SCMR 854 rel.
Mushtaq Ahmed Anjum for Appellant.
Mumtaz Hussain Baqri and Sabra Islam for Respondents.
2018 Y L R 1481
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
SHAH BAKHSH---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.18 of 2011, decided on 31st May, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that appellant's wife and complainant's sister-in-law came to her parent's house along with her father-in-law, and found the house locked---Lock was broken and discovered the dead bodies of her parents along with that of a minor---Accused was charged for the murder of three persons---Record showed that complainant had narrated in the report that he talked to accused on the phone of his deceased father-in-law while he was in the house of deceased, which established the presence of accused in the house of deceased---Said narration was omitted by the complainant in his statement recorded before the court---Said portion of statement was dishonestly omitted by the complainant despite the fact that his minor son aged about 8/9 years was cold bloodedly murdered in the same occurrence---Investigating Officer had failed to get the Call Data Record of the deceased and the complainant---Investigating Officer did not procure the Call Data Record of the accused which could have established the presence of accused at the place of occurrence---Investigating Officer had failed to collect finger prints from the blood-stained articles and did not send the said articles for chemical analysis---Complainant had admitted in cross-examination that close relatives of the deceased resided in the neighboring vicinity but neither any close relative of the deceased nor anyone else was examined as witness of last seen evidence in respect of presence of the accused in the house of deceased at the relevant time---Circumstances had established that evidence had totally been shattered only because of grave criminal negligence of the Investigating Officer---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i-amd---Appreciation of evidence---Disclosure by accused---Admissibility---Disclosure memo of accused and memo of pointation of place of occurrence would be of no avail to the prosecution's case when the alleged disclosure was not followed by any discovery---Said disclosure, therefore, under Art. 39 of the Qanun-e-Shahadat, 1984 was not admissible in evidence.
(c) Administration of justice---
----When law had contemplated to do anything in a particular manner, any deviation there-from amounted to violation of law---Things stipulated by the law were to be done in the same manner and if said stipulation was not followed in letter and spirit, same would amount to violation of law and would have no credence in the eyes of law.
(d) Criminal Procedure Code (V of 1898)---
----S. 164--- Retracted confession---Scope--- Retracted confession, if corroborated in material particulars could be based for recording conviction.
Daniel Boyd v. The State 1992 SCMR 196 rel.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Retracted judicial confession---Scope---In the present case, there was no eye-witness of the occurrence---No direct evidence was available to corroborate the retracted judicial confession and medical evidence was also not in line with the retracted judicial confession---Case against the accused was one of no evidence, in circumstances.
Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 rel.
(f) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement---Scope---Statement of Judicial Magistrate showed that only fifteen minutes time was given to the accused to ponder upon before recording his confessional statement--- Judicial Magistrate failed to append requisite certificate with the judicial confession of the accused---Judicial Magistrate did not mention that the confessional statement was recorded through interpreter upon the accused's utterance in Brahvi language which was recorded in Urdu---Judicial Magistrate not only in his court statement but on the confessional statement mentioned the date of recording the confession as 1.11.2009--- Record transpired that FIR was lodged on 1.11.2009 and the accused was arrested on 2.11.2009---Disclosure as alleged by the accused was recorded on 9.11.2009, thus, an error in respect of date on which the alleged confession was recorded severely damaged the prosecution's case---Circumstances established that Judicial Magistrate committed a gross illegality in recording the confessional statement of the accused which was not curable, and vitiated the trial---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Ahsan Rafiq Rana for Appellant.
Ameer Zaman Jogizai, Prosecutor General for the State.
2018 Y L R 1525
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ
KHALIL ULLAH---Petitioner
Versus
Mst. SAHIB BIBI and another---Respondents
Constitutional Petition No. 450 of 2017, decided on 16th February, 2018.
Family Courts Act (XXXV of 1964)--
----S. 14---Suit for restitution of conjugal rights---Petitioner/husband contended that Majlis-e-Shoora (Appellate Court) had no jurisdiction to entertain appeal preferred by him against the decree passed by Family Court---Validity---Family Courts Act, 1964 was a special law which vested powers with the Qazis and Civil Judges to adjudicate upon the family matters, but appeal as provided under S.14 of Family Courts Act, 1964 would only lie before the District Court---Majlis-e-Shoora (Appellate Court) was barred to entertain the appeal under special law---High Court observed that impugned order passed by the Majlis-e-Shoora was without lawful authority and void ab initio and set aside the impugned order and directed Majlis-e-Shoora (Appellate Court) to return the appeal to the petitioner/appellant who would be at liberty to file said appeal before the Court of competent jurisdiction---Constitutional petition was allowed accordingly.
Manzoor Ahmed Rehmani for Petitioner.
Muhammad Arif Achakzai for Respondents.
2018 Y L R 1611
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
ABDULLAH and 5 others---Petitioners
Versus
RAHEEM KHAN and 12 others---Respondents
Civil Revisions Nos. (s) 31, 33 and 34 of 2014, decided on 27th March, 2018.
Civil Procedure Code (V of 1908)---
----S. 12 (2)---Suit for declaration---Decree, setting aside of---Fraud and misrepresentation---Question of fraud and misrepresentation had rightly been decided by the Courts below---Petitioners had failed to point out any illegality or irregularity in the impugned orders---Findings recorded by the Courts below were well reasoned---Petition did not disclose any fraud and misrepresentation committed by the Courts below while passing the judgments and decrees rather petitioners contested the proceedings---No case of fraud and misrepresentation had been made out---Revision was dismissed in circumstances.
Ahsan Rafiq Rana for Petitioner.
Husnain Iqbal for Respondent No.1.
Muhammad Sadiq Ghuman for Respondents Nos. 2, 4 to 11.
Muhammad Iqbal Marghzani for Respondent No.3.
Muhammad Aslam Jamali, AAG for Official Respondent.
2018 Y L R 1674
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
SAEEDAN BIBI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.48 of 2017, decided on 16th May, 2017.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances
Act (XXV of 1997), S. 9(c)---Possession of narcotic drugs---Bail, grant of---Further inquiry---Person who allegedly informed police regarding accused (suspect lady) was not brought as witness---Neither travelling ticket of Bus was taken into possession nor registration number of the bus was mentioned in the FIR---Quantity of contraband and expected quantum of punishment would be taken into account while allowing bail to accused person---Investigation of case had already been finalized and challan had been submitted before Trial Court and thus physical custody of accused was not required for the purpose of investigation---Case of accused fell within the ambit of S. 497(2), Cr.P.C.---Bail was granted accordingly.
Attaullah Langove for Applicant.
Mrs. Noor Jehan Kahoor, Addl: P.G. for the State.
2018 Y L R 1702
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahemd Langove, JJ
NOOR ZAMAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 110 and Murder Reference No.9 of 2009, decided on 30th August, 2017.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Accused was charged for the murder of father of the complainant by firing---Ocular account was furnished by the witnesses including the complainant---Eye-witnesses appeared and supported the contents of fard-e-bayan and identified the accused in the court---Said witnesses, without any exaggeration fully involved the accused as sole culprit with specific role of firing and committing qatl-i-amd of the deceased---Medical evidence was in line with the ocular account---Eye-witnesses were natural being residents of the same house, where the occurrence had taken place and they had no deep rooted enmity to falsely implicate the accused---Nothing had been brought on record to show that either the witnesses had made any dishonest improvement or deviated from their earlier stand recorded before the police---Circumstances established that accused being sole culprit was responsible for committing qatl-i-amd of the deceased, therefore, was liable for normal penalty of death---Appeal against conviction and sentence was dismissed in circumstances.
(b) Criminal trial---
----Interested witness---Scope---Testimony of closely related witness---Reliance---Testimony of closely related witness could not be discarded merely on the ground of relationship with the deceased.
(c) Criminal trial---
----"Motive" and "intent"---Scope and distinction---Motive is the state of mind of accused, which can be formed even at the spur of moment, therefore, absence of motive is of no consequence; it is an impulse and desire that induces criminal action on the part of the accused---"Motive" is distinguished from "intent", which is the design with which the act is done---Absence of motive, cannot be helpful in presence of unimpeachable ocular evidence.
(d) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Sentence, defined---Quantum of sentence---Normal sentence in a murder case was death and the court while awarding the same was not under obligation to record any reason---While awarding a lesser sentence, court had to record reasons---Every possible care and caution had to be adopted---If the offence was proved against the accused, the court was to award sentence for that offence, even if it was a capital punishment.
Hamid Mahmood and another v. The State 2013 SCMR 1314; Dadullah and another v. The State 2015 SCMR 856; PLD 2001 SC 475 and PLD 2015 Lah. 512 rel.
(e) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Mitigating circumstance---Scope---Accused had contended that he had faced agony of prolonged trial and remained in a death cell for a long period, which was a mitigating circumstance in his favour---Validity---Prolonged trial or being in death cell for a long period was not a valid ground for inflicting lesser penalty to accused.
PLD 2007 SC 104 and AIR 1999 SC 3789 rel.
Raja Abdur Rehman for Appellant.
Kamran Murtaza and Tahir Ali Baloch for the Complainant.
Ameer Hamza, A.A.G. for the State.
2018 Y L R 1745
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ
AKHTAR JAN---Appellant
Versus
SHAH MURAD through Levies Thana, Harnai and another---Respondents
Criminal Acquittal Appeal No.293 of 2017, decided on 9th November, 2017.
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---First Information Report was lodged after the delay of two days---Effect---Record showed that the alleged occurrence took place on 17.2.2014 at about 1.00 p.m. but the matter was reported at the police station on 19.2.2014 at about 4.00 p.m. with the delay of about two days---Prosecution had failed to explain satisfactorily the delay in lodging of FIR regarding the incident---Distance between the place of occurrence and the police station was about eight kilometers---Unexplained delay in lodging of FIR, would be presumed that the same was result of deliberation, negotiation, discussion and after thought with sole drive and ulterior motive to get the accused convicted---Such delay could not be ignored in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Charge against accused was that he, along with co-accused persons, armed with Kalashnikov fired upon victim, due to which he died at the spot---Motive behind the incident was stated to be a dispute over kinship---Ocular account was furnished by three witnesses, claiming themselves to be eye-witnesses of the occurrence---Said witnesses had stated that they were present in the area of place of occurrence and were grazing their cattle, while deceased was also present at some distance---Accused persons made firing upon him, due to which, he died at the spot---Statements of all the said eye-witnesses showed that the same were full of improvements and contradictions---Said witnesses contradicted each other on material points, as such, their statements were not confidence inspiring---Statements under S.161, Cr.P.C. of the witnesses were recorded after three days of the incident----No postmortem of the dead body of the deceased was conducted nor any inquest report was made in order to ascertain the cause of death or the number of injuries sustained by the deceased---Recovery witness admitted in his cross-examination that there was no sign of bullet on the blood stained clothes of the deceased---No recovery was affected from the accused---Circumstances established that prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against acquittal was dismissed in circumstances.
(c) Criminal trial---
----Witness---Improvements in the statements of prosecution witnesses---Effect---If a witness improved his statement to strengthen the prosecution case and the moment it was concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness did not remain reliable.
Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Rafiq and others v. The State and others 2010 SCMR 835 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal/ conviction---Distinction---Appeal against acquittal was distinguishable from appeal against conviction, because, presumption of double innocence was attached in the case of appeal against acquittal---Appeal against acquittal could only be interfered with, when it was found on the face of it as capricious, perverse or arbitrary in nature.
Inayatullah Butt v. Muhammad Javed and others PLD 2003 SC 562 rel.
Abdul Zahir Noorzai for Appellant.
2018 Y L R 1771
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ
MUHAMMAD ALAM---Petitioner
Versus
NAZISH QAZI and 2 others---Respondents
C. Ps. Nos. 346 and 347 of 2015, decided on 17th July, 2017.
Guardians and Wards Act (VIII of 1890)---
----Ss.17 & 25---Suit for custody of minor girl---Mother marrying a person stranger to the female ward---Effect---Welfare of minor---Scope---Father contended that as mother of female minor had contracted marriage with a stranger to the minor, she had lost her entitlement for the custody of female minor and that appellate Court had wrongly given custody of female minor to the mother---Mother contended that appellate Court had rightly passed judgment in her favour---Validity---Prime consideration for custody of minor was welfare of the minor---While determining the matter of custody of female ward, in terms of S.17 of Guardians and Wards Act, 1890, question of chastity of female minor was to be jealously guarded and the lady who had contracted second marriage with stranger would loose her right of custody---Father was, in the present case, entitled for custody of minor daughter in the wake of the fact that the mother had contracted second marriage with a person who admittedly was totally stranger to the female minor---Judgment and decree of the appellate Court was set aside and decree of trial Court for custody of minor to the father was upheld---Constitutional petition was allowed accordingly.
Mst. Akbar Bibi v. Shoukat Ali 1981 CLC 78; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 2000 and Shabana Naz v. Muhammad Saleem 2014 SCMR 343 ref.
Nasibullah Kasi and Rehmatullah Sadozai for Petitioner.
Muhammad Aamir Rana for Respondent No.1.
2018 Y L R 1782
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ
MUHAMMAD SADIQ and others---Petitioners
Versus
SPECIAL JUDGE, ANTI-TERRORISM COURT-II, QUETTA and another---Respondents
C. P. No.508 of 2017, decided on 12th June, 2017.
(a) Anti-Terrorism Act (XXVII of 1997)---
----Ss. 6 & 12---Criminal Procedure Code (V of 1898), S.173---Jurisdiction of Anti-Terrorism Court---Determination---Anti-Terrorism Court, for taking cognizance and conducting trial of offences was to see that on what basis allegations were made in the FIR; that what was the material collected during investigation and surrounding circumstances; that whether alleged offence had any nexus with the object of the case; that particular act was act of terrorism or not; that there existed motivation, object, deign and purpose behind the act; that act had created fear and insecurity in the public or in a section of public or community or in any sect; that act had created fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area---All said ingredients amounted to terror and as such fell within the ambit of S.6 of the Anti-Terrorism Act, 1997 and would be triable by Anti-Terrorism Court.
The State through Advocate General, N.W.F.P. v. Muhammad Shafiq PLD 2003 SC 224 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 392, 511, 353, 337-A, 337-D, 186, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, assault or criminal force to deter public servant from discharge of his duty, shajjah, jaifah, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Dismissal of petition for transfer of case from Anti-Terrorism Court to ordinary criminal court---Petitioners contended that provisions of S.6 of Anti-Terrorism Act, 1997 were not attracted in the case and offences mentioned in the FIR had no nexus with the definition of said section of the Act---Validity---Prosecution case was that petitioners committed offences on the main road, target was Security Force Officers---During scuffle, officials sustained injuries and petitioners tried to snatch official weapons from Security Force personnel---Petitioners were overpowered and Security Force personnel recovered different types of weapons and rounds from the possession of petitioners---Act of the petitioners on the main road created fear and insecurity to the general public---Act of the petitioners apparently involved serious violence against the members of the law enforcing agency, as such, case prima facie fell under S.6(m) and (n) of Anti-Terrorism Act, 1997---Anti Terrorism Court therefore, had exclusive jurisdiction to try the case---Constitutional petition was dismissed in circumstances.
Abdul Kabir Khan for Petitioner.
2018 Y L R 1897
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
GHULAM HAIDER---Petitioner
Versus
ADDITIONAL DISTRICT AND SESSIONS JUDGE/JUSTICE OF PEACE, DALBANDIN and 2 others---Respondents
C. P. No.382 of 2015, decided on 9th October, 2017.
(a) Criminal Procedure Code (V of 1898)---
----S. 22-A---Application for registration of case against accused persons was dismissed by Ex-officio Justice of Peace---Contention of applicant was that he was owner of landed property and fruit trees, which was his ancestral property---Said property was in possession of petitioner and his brother---Accused persons along with six unknown persons came there and forcibly looted two bags of fruit---Petitioner submitted application for registration of case but Tehsildar refused to register the same---Petitioner filed application under S. 22-A, Cr.P.C. before Ex-officio Justice of Peace, who rejected the same---Validity---Ex-Officio Justice of Peace under S. 22-A(6), Cr.P.C. had to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned Tehsildar to register FIR---Record showed that there was a dispute between the parties over the land and both the parties were claiming ownership of the land in question whereas the land where alleged trees were planted was Beroon-az-Line---Dispute between the parties was that of civil nature and the Ex-officio Justice of Peace had passed a well reasoned order---Allegation levelled against the accused persons by the applicant could not be gone into by High Court while exercising its extra-ordinary constitutional jurisdiction, under Art.199 of the Constitution as the same would require a factual inquiry---Constitutional petition was dismissed in circumstances.
Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Ex-officio Justice of Peace, jurisdiction of---Scope--- Ex-officio Justice of Peace while seized of application under Ss.22-A & 22-B, Cr.P.C. was not to act mechanically by issuing direction for registration of criminal case in each and every case.
Mian Abdul Waheed v. Additional Sessions Judge Lahore and 7 others 2011 PCr.LJ 438 rel.
Syed Ayaz Zahoor for Petitioner.
2018 Y L R 1917
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
REGIONAL ELECTION COMMISSION, NASEERABAD---Appellant
Versus
ABDUL GHAFOOR---Respondent
Criminal Acquittal No.(s) 121 of 2015, decided on 23rd October, 2017.
Representation of the People Act (LXXXV of 1976)---
----Ss. 52, 78(3)(d), 82 & 94--- Constitution of Pakistan, Art. 62(f)--- Conduct of General Elections Order, 2002, Art. 8-A---Election dispute---False declaration--- Accused was alleged to have filed false declaration with regard to his educational qualification--- Trial Court acquitted accused of the charge---Validity---Judgment passed by Trial Court was in violation of law and suffered from material illegalities and irregularities---Trial Court failed to call for record of Election Commission from concerned offices and did not provide full and fair opportunities to the parties to produce their evidence pro-contra--- Judgment passed by Trial Court was non-speaking, perverse, ridiculous and not sustainable--- High Court directed Trial Court to call for record and provide full and fair opportunities to both parties to lead evidence resultantly, judgment was set aside and case was remanded to Trial Court for decision afresh--- Appeal was allowed accordingly.
C. As. 411 to 414 of 2012 rel.
Muhammad Rasheed for Appellant.
Muhammad Sadique Ghuman for Respondent.
Jameel Akhtar Gajani, D.P.G. for the State.
2018 Y L R 1958
[Balochistan]
Before Abdullah Baloch, J
ABDUL HAMEED---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.109 of 2009, decided on 22nd December, 2017.
Penal Code (XLV of 1860)---
----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused remained posted as Incharge of Utility Store from July, 2007 to May, 2008---Audit of the said Utility Store was carried out and it was found that accused being incharge had misappropriated utility store items worth Rs.200,090 and thereafter remained fugitive to handover the charge of the utility store---Ultimately, on the direction of Regional Manager, the locks of the utility store were broken in presence of witnesses, further shortage of items worth Rs. 71,832/- were found---Record showed that locks of the store were broken and the inventory of shortage was carried out, but neither any broken locks were taken into possession nor any inventory sheet was prepared containing details of missing items and the signatures of the witnesses allegedly present at the time of inspection/checking of the store---Accused had denied the charge and alleged that the Audit Officer demanded Rs. 50000/- as commission, but on refusal, he had been falsely implicated in the case, however he relied upon audit sheet and ICL stock register, which showed that he received store from warehouse worth Rs.1323386/----Accused deposited Rs. 623385/- in the Bank within three months and on 26th August, 2008 stock worth Rs. 700251/- was available in the store---Complainant and Audit Officer had admitted that stock position tallied with debit and credit side of balance sheet---Admittedly, amount of Rs.623385/- was deposited in the Bank, while ICL balance on 26th May, 2008 was Rs. 70025/----Prima facie, prosecution had failed to establish the shortage of position of stock in view of the balance sheet---Circumstances established that prosecution had failed to establish any criminal liability against the accused beyond any shadow of doubt---Appeal was accepted and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Abdul Khair Achakzai for Appellant.
Syed Ikhlaq Shah, Assistant Attorney General for the State.
2018 Y L R 2053
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
ABDUL SAMAD and 3 others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeal No.364 and Criminal Revision No. 42 of 2016, decided on 31st January, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that on the fateful day at about 8.45 p.m., the accused persons, while armed with daggers, knives and sticks, beat the brother of complainant, who received several injuries of daggers and knives and succumbed to the injuries---Motive behind the occurrence as stated by the complainant was a property dispute---Ocular account was furnished by three eye-witnesses including complainant, but there were certain material contradictions, omissions, discrepancies and improvements in their statements---Complainant had stated that accused persons and co-accused were armed with daggers, knives and dandas, whereas eye-witnesses stated that assailants were armed with daggers and knives---Complainant had not stated that who was armed with daggers, knives and dandas, whereas eye-witnesses made dishonest improvement and stated that two accused were armed with daggers and rest of the accused had knives in their hands---Statement of complainant was contradicted by eye-witness, who stated that after commission of offence, the assailants made their escape good on two vehicles, whereas complainant stated that the accused fled away in one vehicle which was not possible as to how eight persons after the commission of offence would escape in one car---Eye-witnesses had not supported each other on the point of time, as complainant and eye-witness stated that incident took place at 8.45 p.m., whereas the other eye-witness stated that occurrence took place at 8.00 p.m.---Accused persons, who were eight in number, allegedly armed with sticks, daggers and knives murdered the real brother of eye-witnesses but when they came at the spot, the assailants did not cause a single bruise to them despite the fact that the parties were inimical towards each other as they had property dispute---Said contradictions, omissions and improvements cast serious doubts on presence of eye-witnesses including complainant at the place of incident and witnessed the incident with their eyes, which made the prosecution case doubtful---Circumstances established that prosecution had failed to establish guilt of the accused persons to the hilt---Appeal was allowed and accused persons were acquitted in circumstances by setting aside conviction and sentences recorded against them by the Trial Court.
(b) Criminal trial---
----Benefit of doubt---Principle---If a slightest doubt was created in the prosecution case, accused would be entitled to its benefit not as a matter of grace but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230; Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 and Fariad Ali v. State 2008 SCMR 1086 rel.
Kamran Murtaza and Arbab Muhammad Tahir for Appellants.
Muhammad Ismail Baloch and Saleem Lashari for the Complainant.
Ameer Hamza Mengal, D.P.G. for the State.
2018 Y L R 2276
[Balochistan]
Before Muhammad Noor Meskanzai, C.J.
Haji HABIBULLAH and 5 others---Petitioners
Versus
ANJUMAN-E-ISLAMIA, BALOCHISTAN through Secretary Property---Respondent
Civil Revisions Nos. 328 and 329 of 2012, decided on 5th March, 2018.
Transfer of Property Act (IV of 1882)---
----Ss. 106 & 116---Qanun-e-Shahadat (10 of 1984), Art. 17 (2)---Ejectment of tenant---Lease deed---Proof---Procedure---Lease deed in favour of tenant had expired---Ownership of suit property was in favour of landlord---Only one marginal witness of lease deed was produced---Neither the scribe of lease deed nor rest of marginal witnesses were produced---Lease deed had not been proved by the tenant in circumstances---Tenants could not claim to be tenants at-will nor they had been able to prove their status as a tenant holding-over---Tenants did not have a right to retain possession of suit property anymore---Impugned judgments and decrees passed by the Courts below did not suffer from any mis-reading or non-reading of evidence---Revision was dismissed in circumstances.
Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussian Shah and another PLD 2018 SC 81; Mian Abdur Rashid v. Province of Punjab, through District Collector, Okara and another PLD 2004 SC 389; Malik Naveed Ahmed v. Mrs. Nasreen Hameed 2005 SCMR 357; Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. Karachi PLD 1970 Lah. 455 and Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of Karachi Port Trust 1987 CLC 591 rel.
Sheikh Muhammad for Petitioners.
H. Shakeel Ahmed for Respondent.
2018 Y L R 2479
[Balochistan]
Before Nazeer Ahmed Langove and Muhammad Ejaz Swati, JJ
SAJJID AHMED and others---Petitioners
Versus
NATIONAL ACCOUNTABILITY BUREAU, through Director General and another---Respondents
C.Ps. Nos. 13 and 69 of 2017, 1203, 1210, 1212, 1213 and 1214 of 2016, decided on 29th March, 2017.
National Accountability Ordinance (XVIII of 1999)---
----S. 9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Reference, filing of---Case of further inquiry---Principle of consistency---Applicability---Petitioners were accused facing trial under National Accountability Ordinance, 1999, who sought pre-arrest bail--- Validity--- Allegation against petitioners were that had they appointed 7 bogus teachers in District Quetta and in violation of procedure, activated salaries of alleged bogus teachers---One of the petitioners was retired on in March 2011 and during the period of alleged appointment he was out of country---Question related to another petitioner as to whether he at the relevant time was ex-Deputy District Officer Education, had DDO's power to initiate salaries of bogus teachers or as to whether official / officer of the office of Accountant General had acted in violation of any law, rule or regulation and bringing their case under National Accountability Ordinance, 1999, were the exceptional circumstances, and the same were yet to be decided by Trial Court---Reference in question had already been submitted before Trial Court and petitioners were facing their trial---High Court had already confirmed bail before arrest of accused persons in another case on same allegations and petitioners had made out their case for bail---Bail before arrest was confirmed in circumstances.
The State v. Haji Kabeer Khan PLD 2005 SC 364 rel.
Sohail Ahmed Rajput for Petitioners (in C.P. No.13 of 2017).
Ch. Mumtaz Yousaf, D.P.G. and Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondents (in C.P. No.13 of 2017).
Syed Iqbal Shah for Petitioner (in C.P. No.69 of 2017).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondent (in C.P. No.69 of 2017).
Miss. Sarwat Hina for Petitioner (in C.P. No.1203 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondent (in C.P. No.1203 of 2016).
Sohail Ahmed Rajput for Petitioner (in C.P. No.1210 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondent (in C.P. No.1210 of 2016).
Petitioner in person (in C.P. No. 1212 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondents (in C.P. No.1212 of 2016).
Petitioner in person (in C.P. No.1213 of 2016).
Ch. Mumtaz Yousaf DPG and Riaz Akhtar Tareen, Special Prosecutor for Respondents (in C.P. No.1213 of 2016).
Kamran Murtaza for Petitioner (in C.P. No.1214 of 2016).
2018 Y L R 2490
[Balochistan]
Before Nazeer Ahmed Langove, J
MUKHTIAR and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Revision No.6 of 2017, decided on 25th April, 2017.
Criminal Procedure Code (V of 1898)---
----S. 540---Summoning of witnesses---Trial Court allowed application filed under S. 540, Cr.P.C. for summoning of additional witnesses---Accused-petitioner contended that names of additional witnesses had not been mentioned either in the challan or in the statements of witnesses under S. 161, Cr.P.C. summoning of said witnesses, therefore, would be an attempt to fill up the lacunae---Validity---Record showed that names of said witnesses did not appear in the calendar of witnesses---Neither the statements of said witnesses, in circumstances were recorded under S. 161, Cr.P.C. nor under S. 164 Cr.P.C.---Such witnesses, in circumstances could not be summoned---Order of Trial Court for allowing the application filed under S. 540, Cr.P.C. was set aside.
Shahbaz Masih v. State 2007 SCMR 1631 rel.
Mrs. Shakar Baloch for Petitioner.
Yahya Baloch, D.P.G. for the Complainant.
2018 Y L R 2555
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
SAJJAD HAIDER TAREEN and 10 others---Petitioners
Versus
The PROVINCIAL POLICE OFFICER, BALOCHISTAN QUETTA---Respondent
C.M.A. 1472 of 2012 in C.P. No.246 of 2008, decided on 20th June, 2017.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Fraud and misrepresentation---Order, setting aside of---Limitation---Contention of applicants was that impugned order was obtained through fraud and misrepresentation without impleading them as party in the proceedings---Validity---Where one was not party to the proceedings and was being adversely affected by the order/ proceedings, such objector had to satisfy the conscience of the Court that said party had the knowledge of proceedings---Neither applicants, in the present case, were party nor proceedings were conducted through a publication as done in the cases of representative character, knowledge, in circumstances, could not be inferred---Period of three years for filing of application under S. 12(2), C.P.C. had been provided from the date of "knowledge"---Constitutional petition by the respondents was defective as the relief claimed was bound to prejudice the interest of applicants---Respondents were bound to have impleaded the applicants as a party in the proceedings---Petitioners/ respondents were directed to amend the constitutional petition and implead the applicants as a party accordingly---Impugned order was recalled in circumstances---Application for setting aside of order was accepted.
Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856; Kubra Begum v. Shad Begum 1993 SCMR 2096; Abdul Ghani v. Shaheen 2007 SCMR 836; Secretary Ministry of Religious Affairs and Minorities v. Abdul Majid 1993 SCMR 1171; Ghulam Haider v. The Province of West Pakistan and 15 others PLD 1971 Quetta 57; State v. Zahid Hussain 1990 SCMR 164; Messrs Basco Enterprises (Pvt.) Ltd. v. Muhammad Siddique 1990 MLD 211; Allah Dino and another v. Muhammad Shah 2001 SCMR 286 and Muhammad Buta v. Habib Ahmed PLD 1981 SC 153 ref.
Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 rel.
(b) Limitation Act (IX of 1908)---
----Art. 181---Civil Procedure Code (V of 1908), S. 12(2)---Application under S.12(2), C.P.C.---Limitation---Period of three years for filing of an application under S. 12(2), C.P.C. had been provided from the date of "knowledge".
Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 rel.
2018 Y L R 2610
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
SHAFEE MUHAMMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.112 and Murder Reference No. 6 of 2015, decided on 22nd June, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 354, 449, 452 & 34---Qatl-i-amd, assault or use of criminal force to woman with intent to outrage her modesty, house-trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Sentence, reduction in---Complainant as prosecution witness had correctly narrated the story as contained in the FIR and nowhere he was derailed from his previous deposition---Statements of the most important and star witnesses, the daughter and widow of the deceased, were similar with each other---Said witnesses had correctly identified accused in the Trial Court and correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place---Said witnesses being dwellers of the house where occurrence took place, their presence in the house could not be doubted, rather their presence at the relevant time, was natural---Other prosecution witness, the neighbourer of the deceased, had also identified the accused in the court---All prosecution witnesses were reliable, trustworthy and credible---Identity of accused, could not be doubted as prior to the incident, accused remained Buzgar of deceased's family---Defence had cross-examined the witnesses at sufficient length, but had failed to give any dent or damage to their testimony---Some minor discrepancies in the evidence of prosecution witnesses, were not substantive enough to create reasonable doubt in the case of prosecution about the involvement and guilt of accused---Recovery of crime weapon i.e. T.T. Pistol, was effected on the pointation of accused---Accused had confessed his guilt by disclosing the names of absconding accused persons who persuaded him for committing the murder of deceased---Case of prosecution, had further been strengthened by the confessional statement of accused under S.164, Cr.P.C.---Such statement was recorded without any coercion, pressure, torture or blackmailing---No reason existed to disagree or disbelieve such confessional statement---Plea of 'alibi' taken by accused, was not of worth credence---Prosecution had succeeded in proving the charge against accused through direct, circumstantial and medical evidence---No major contradiction or dishonest improvement had been pointed out by the defence---Accused, throughout the proceedings, had not taken any specific plea with regard to his false implication, nor he had brought any ill-will or ulterior motives for his false implication by the witnesses---Trial Court had discussed and dilated upon each and every aspect of the case and rightly convicted accused.
Muhammad Amjad v. The State PLD 2003 SC 704 and Hashim Qasim v. The State 2017 SCMR 986 ref.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Awarding of capital punishment---Eight accused persons including the accused had been booked in the crime and except accused, all accused persons were absconding; their pleas were yet to be brought on record---Accused, his two sons and two other absconding accused persons, being armed with Kalashnikov and T.T. pistol had made indiscriminate firing upon the deceased, but the fact remained that the deceased had only received two bullet injuries and it was not certain that whose bullet hit the deceased---Awarding of capital punishment to accused was unwarranted, in circumstances---While upholding the conviction of accused, his sentence of death was converted into rigorous imprisonment for life---Amount of compensation and remaining sentence of accused were maintained with benefit of S.382-B, Cr.P.C.
Shah Muhammad Jatoi for Appellant.
Habib Ullah Gul, Additional P.G. for the State.
2018 Y L R 1777
[Shariat Court (AJ&K)]
Before M. Tabassum Aftab Alvi, C.J.
SHAIR ALI SHAH---Petitioner
Versus
The STATE through Advocate General, Muzaffarabad and 4 others---Respondents
Criminal Revision Petition No.220 of 2017, decided on 22nd January, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 540---Material witness, summoning of---Scope---Application moved by accused for summoning defence witnesses as court witnesses, was dismissed by Trial Court---Validity--- Record showed that, evidence of one prosecution witness, out of seventeen witnesses, was recorded---Meanwhile, petitioner-accused moved application under S.540, Cr.P.C. for summoning defence witnesses as court witnesses, which was dismissed by the Trial Court---Procedure was manifest that accused would be asked to produce his evidence after conclusion of prosecution evidence---Application moved under S.540, Cr.P.C. for summoning court witnesses could not be allowed, and if petitioner-accused wanted defence witnesses to be summoned, he had to wait till conclusion of prosecution evidence---Petitioner-accused moved the application under S.540, Cr.P.C., for summoning defence witnesses as court witnesses at premature stage---Remedy was available to accused to substantiate his version or produce the defence witnesses by leading defence evidence, which stage was still to come, after recording prosecution evidence---Trial Court had recorded impugned order in a proper and legal manner, which did not warrant any interference---Revision petition was dismissed in circumstances.
Muhammad Yaseen alias Mithoo and another v. State 2010 PCr.LJ 1253 and Ansar Mahmood v. Abdul Khaliq and another 2011 SCMR 713 ref.
Malik Naseer v. Wishno Mal and another 2014 PCr.LJ 1496 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 540---Summoning of witness---Scope---Law empowered the court to summon and examine any person as a witness at any stage of trial or inquiry under the said section---Such wide jurisdiction had been limited by the legislature with a deliberate use of phrase "if his evidence appears to it essential to the just decision of the case".
Shah Zain Bugti's case PLD 2013 SC 160 rel.
Syed Hazoor Imam Kazmi for Petitioner.
Akhlaq Hussain Kiani, Addl. A.G. for the State.
2018 Y L R 1808
[Shariat Court (AJ&K)]
Before M. Tabassum Aftab Alvi, C J
MUHAMMAD YUSUF and another---Applicants
Versus
The STATE through Advocate General and 2 others---Respondents
Criminal Application No.227 of 2017, decided on 17th January, 2018.
Criminal Procedure Code (V of 1898)---
----S. 561-A---Penal Code (XLV of 1860), Ss. 337, 353, 186, 147, 148, 149 & 506---Shajjah, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapon, unlawful assembly, criminal intimidation---Quashing of FIR---High Court in its limited jurisdiction under S.561-A, Cr.P.C. would not embark upon an enquiry to ascertain the innocence or otherwise of the accused---If the allegations disclosed an offence, the case could not be quashed merely because the accused denied the allegations and asserted that he had a good defence, when his defence was yet to come---Ordinarily the guilt or innocence of the accused depended on the totality of the facts and circumstances revealed during the trial---Without allowing prosecution to produce evidence, it would not be proper to accept the petition filed under S.561-A, Cr.P.C.---Petition for quashing FIR was dismissed in circumstances.
Haji Karim Bakhsh and another v. The State PLD 1982 Pesh. 20 rel.
Sardar Waheed Arif for Applicant.
2018 Y L R 1922
[Shariat Court (AJ&K)]
Before M. Tabassum Aftab Alvi, C.J. and Muhammad Sheraz Kiani, J
NADEEM IQBAL and others---Appellants
Versus
The STATE through Additional Advocate General and others---Respondents
Criminal Appeals Nos. 40, 41 and Criminal Reference No.39 of 2010, decided on 16th February, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Incident took place about 8.30 pm. at night and due to load-shedding, electricity was off, but the complainant along with other prosecution witnesses, deposed that few minutes prior to the occurrence, generator was turned on and they saw the occurrence in bulb light---Such deposition, could not be disbelieved---Motive of murder, as set up by the prosecution remained shrouded in mystery---Reports of Forensic Science Laboratory, Chemical Examiner and Serologist, which were part of file, were not exhibited in the evidence---Same could not be read against accused, in circumstances---Three pieces of bullets, were recovered from dead body of the deceased and by preparing a parcel, same was handed over to Police, but report of Forensic Science Laboratory, regarding the said pieces, was neither obtained nor appended with the file---Such being mitigating circumstances death sentence awarded to accused was altered to life imprisonment.
2008 SCR 552; 2010 SCR 75; 2017 SCMR 344; PLD 1983 SC 211; PLD 1996 SC 122; 1996 MLD 1681; 1997 SCMR 1537; 1997 PCr.LJ 865; 1998 SCR 330; PLD 2001 SC 333; 2001 PCr.LJ 827; 2002 CLC 749; PLD 2001 SC 107; PLD 2002 SC 558; 2003 SCMR 647; 2010 SCR 75; 2014 SCR 821; 2015 SCR 147; 2015 SCR 1007; 2017 PCr.LJ 649; 2016 SCR 373; PLD 1996 SC 122 and Azhar Aziz v. The State 1996 PCr.LJ 1522 ref.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Motive---Scope---Sentence, quantum of---Motive played an important role in the case of circumstantial evidence, and in the case of direct evidence, it was not essential to prove motive; however, in view of the peculiar facts and circumstances of the case, motive as set out by the prosecution ought to be established by the prosecution---Prosecution was not obliged to set up motive for murder, however, once it was set up, the prosecution had to prove it and in failure whereof an adverse inference could be drawn against the prosecution---Motive, though not a sine qua non for bringing the offence of murder at home, but it had importance regarding the quantum of sentence---Where the motive was shrouded in mystery, the extreme penalty of death, was not warranted rather life imprisonment, was considered sufficient to meet the ends of justice.
Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27 rel.
(c) Criminal trial---
----Witness---Evidence of close relative---Scope---Evidence of close relative, could not be brushed aside on the ground of relationship; especially so, when he had not been shown inimical towards accused.
Muhammad Khalil v. The State 1992 SCR 249; Muhammad Tahir Aziz v. The State and another 2009 SCR 71 and Karamat Hussain v. The State and another 2015 SCR 1007 ref.
(d) Criminal trial---
----Evidence---If a piece of evidence was disbelieved to the extent of one accused, same could not be believed to the extent of other accused, against whom cogent, convincing and confidence inspiring evidence was available on record; because, courts had to sift grain from chaff.
Muhammad Bashir and another v. Sain Khan and 2 others 2014 SCR 821 and Karamat Hussain v. The State and another 2015 SCR 1007 rel.
Raja Inamullah Khan for Appellant-Convict Nadeem Iqbal and acquitted-Respondents.
Ch. Khalid Rasheed and Ch. Bilal Ali for the Complainant.
2018 Y L R 2532
[Shariat Court (AJ&K)]
Before M. Tabbasum Aftab Alvi, C J
Mst. SAADIA AZIZ alias HUMAIRA and another---Petitioners
Versus
The STATE through Advocate General AJ&K, Muzafarabad and 3 others---Respondents
Criminal Misc. Petition No.63 of 2017, decided on 5th March, 2018.
(a) Criminal Procedure Code (V of 1898)---
----S. 561-A---Quashing of FIR---Inherent powers of Shariat Court (AJ&K)---Shariat Court, under provisions of S.561-A, Cr.P.C., had inherent power to make such orders, as could be necessary to give effect to any order under Cr.P.C. or to prevent abuse of process of any court, or otherwise to secure the ends of justice---Said powers, were very wide and could be exercised by the Shariat Court at any time---Shariat Court could exercise its powers under S.561-A, Cr.P.C., in exceptional caess, without waiting for Trial Court to pass orders under S.249-A or 265-K, Cr.P.C., if the facts of the case so warrant to secure the ends of justice---Ordinarily, Shariat Court did not interfere in the investigation of a criminal case; however, if the court would come to a conclusion that accused was innocent and probability of his/her conviction was impossible, then Shariat Court would quash FIR or proceedings, while exercising powers under S.561-A, Cr.P.C.
Ashfaq-ur-Rehman and another v. SHO Police Station, Thothal and 2 others 2016 SCR 1068; Qamar Pervaiz and another v. State through Advocate General and 2 others 2017 PCr.LJ Note 200, p.210 and Ashfaq-ur-Rahman and another v. SHO Police Station, Thothal and 2 others 2016 SCR 1068 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 561-A---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss.10, 11, 16 & 19---Zina or zina-bil-jabr, liable to tazir---Kidnapping---Petition for quashing of FIR---Petitioner "A" entered into marriage with petitioner "B" with her free consent through registered 'Nikahnama'---Both petitioners were living as husband and wife and from their wedlock a baby had also born---Offence of 'zina', could not be said to have been committed in presence of their registered 'Nikahnama',---Each and every case, had its own peculiar facts and circumstances, which was to be judged in the light of its facts---Female accused, had admitted her 'Nikah' with male accused---Nikah between the accused persons being valid, proceedings against them, through the impugned FIR, were liable to be quashed---FIR registered against accused persons, stood quashed, in circumstances.
Muhammad Khalid Naqshbandi for Petitioners.
Raja Ayyaz Ahmad, Asst. A.G. for State/Respondents Nos. 1 to 3.
2018 Y L R 197
[Supreme Court (AJ&K)]
Before Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J
ABDUL GHAFOOR---Appellant
Versus
CHAIRMAN, BOARD OF DIRECTOR, AKLASC MUZAFFARABAD and 9 others---Respondents
Civil Appeal No.101 of 2016, decided on 14th June, 2017.
(On appeal from the judgment of the High Court dated 22.01.2016 in Writ Petition No.123 of 2012)
Azad Jammu and Kashmir High Court Procedure Rules, 1984---
----R. 32(2)---Qanun-e-Shahadat (10 of 1984), Art. 87---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition, filing of---Requirements---High Court dismissed writ petition on the ground that certified copies of documents had not been annexed with the same---Validity---Respondents had admitted the documents relied upon by the petitioner---No violation of R. 32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984 was made in circumstances---Findings recorded by the High Court were not in accordance with law---Findings could have been recorded after taking into account the evidence produced by the parties---Case was remanded to the High Court for deciding the same afresh on merits.
Raja Khalid Mehmood Khan, Advocate for Appellant.
Muhammad Khalil Ghazi, Advocate for Respondents.
2018 Y L R 685
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
KARAMAT HUSSAIN---Appellant
Versus
STATE through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and another---Respondents
Criminal Appeal No.10 of 2012, decided on 16th March, 2015.
(On appeal from the judgment of the Shariat Court dated 15.06.2012 in Criminal Appeal No.10 and Criminal Reference No.41 of 2004)
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was duly nominated in the FIR---All the prosecution witnesses remained consistent on the point of motive established by prosecution---Motive part of the prosecution story, was rightly believed by the courts below---Eye-witness remained consistent and made their statements in line with each other---Defence failed to shake the confidence of the witnesses in spite of lengthy cross-examination---Both courts below had rightly believed their statements---Witnesses being residents of the area, where the occurrence took place, their presence at the time of occurrence seemed to be natural---Testimony of the witnesses, could not be discarded merely on the ground of relationship---Recovery was a corroborative piece of evidence, and if any discrepancy was made out in that regard, that could not be given preference over the ocular account, which otherwise was confidence inspiring and believed by the courts below---Injuries were caused to the deceased from a distance of 50 feet by carbine gun---Such position was required to be clarified by arms expert, but no opinion in that regard had been obtained---Prosecution had not made serious efforts to bring on record any evidence in that regard---No plausible explanation had been brought on record regarding the use of two type of weapons---Said part of the prosecution story was shrouded in mystery---Defence, in circumstances, had succeeded in pointing out a major flaw in the prosecution case; whole prosecution case, in such a situation, could not be destroyed but to be treated as a mitigation---Mitigation was a fact which would go in favour of accused---Every benefit which would arise in favour of accused, must be extended to him---Except said mitigation, defence had failed to create any serious dent in the prosecution story---In presence of mitigation, it was not safe to award death sentence to accused, but life imprisonment was sufficient to meet the ends of justice---While maintaining the conviction, death sentence was altered into life imprisonment, with benefit of S.382-B, Cr.P.C.
Irfan Hussain v. Allah Din and others 2014 PCr.LJ 312 rel.
Muhammad Shabir v. Ch. Muhammad Rashid and others (Criminal Appeal No.14 of 2013); Karim Dad Khan and others v. Javed and others (Criminal Appeal No.25 of 2011) and Ansar Mehmood and another v. Manazir Hussain and others 2014 SCR 770 ref.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution was not bound to examine each and every witness cited in the calendar of witnesses and it was option of the prosecution to examine the witnesses---Testimony of the witnesses could not be discarded merely on the ground of relationship, until and unless some ill-will or enmity would come on record.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Site plan---Evidentiary value---Site plan was not a substantive piece of evidence, and could not be used to contradict or discard the unchallenged ocular testimony---Only purpose to prepare the site plan, was to appreciate or explain the evidence on the record and could not be given preference over direct evidence of credible witness.
Karim Dad Khan and others v. Javed and others (Criminal Appeal No.25 of 2011) ref.
Barrister Hamyun Nawaz Khan, Advocate for Appellant.
Sardar Mushtaq Hussain, Advocate for the Complainant.
Ch. Shaukat Aziz, Addl. Advocate-General for the State.
2018 Y L R 872
[Supreme Court (AJ&K)]
Before Mohammad Azam Khan and Ch. Muhammad Ibrahim Zia, JJ
Mian MUHAMMAD MEHFOOZ and 2 others---Appellants
Versus
Mian MUHAMMAD SARFRAZ and 43 others---Respondents
Civil Appeal No.41 of 2012, decided on 15th March, 2013.
(On appeal from the judgment and decree of the High Court, dated 12.10.2011, in Civil Appeal No.21 of 2008].
Civil Procedure Code (V of 1908)---
----O. XLI, R. 31---Judgment in appeal---Points for determination---Scope---Appellate Court was bound to frame points for determination in the appeal and was not required to record issue-wise findings---Appellate Court was to apply mind, formulate the points which were pivotal in the whole case and decide the appeal---If such point involved in the case was resolved which was sufficient for decision of whole appeal then finding on other points/issues was not necessary---Appellate Court had not recorded issue-wise findings but while resolving the controversy had applied its mind and resolved the pivotal question involved in the case---All the relevant points at issue had been resolved by the Appellate Court---Impugned judgment was in accordance with the provisions of O. XLI, R.31, C. P. C---No illegality had been pointed out in the impugned judgments passed by the Courts below---Appeal was dismissed in circumstances.
Ch. Kamran Tariq for Appellants.
Ch. Muhammad Ashraf Ayaz for Respondents.
2018 Y L R 1244
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J
MUHAMMAD AYUB and 3 others---Appellants
Versus
ALI ZAFFAR and 3 others---Respondents
Civil Appeals Nos.163 and 164 of 2017, decided on 11th November, 2018.
(On appeal from the judgment and decree of the High Court dated 24.3.2017 in Civil Appeal No.54 of 1999).
Specific Relief Act (I of 1877)---
----Ss.12 & 42---Limitation Act (IX of 1908), Art. 113---Transfer of Property Act (IV of 1882), S. 54---Civil Procedure Code (V of 1908), O. VII, R. 7---Suit for declaration on the basis of agreement to sell---Limitation---Commencement of---Sale of immovable property---Grant of relief for specific performance---Scope---Contention of plaintiffs was that they had purchased the suit land through an agreement to sell---Validity---Execution of agreement to sell had been proved by the plaintiffs---Suit property was in the possession of plaintiffs on the basis of agreement to sell---Court was required to decide the case on the basis of pleadings of the parties and material brought on record---Limitation would start from the date when execution of deed was refused and not from the date of execution of agreement to sell---Plaintiffs in their suit had mentioned that the defendants had refused to accept their claim a week ago---Said version had not been refuted by the defendants by producing any evidence---Suit property remained continuously in possession of plaintiffs---Oral evidence could not be given preference over documentary evidence---Findings recorded by the Courts below were erroneous and against the record---Contract of sale of immovable property itself did not create any interest or right in the said property---Said contract could determine and settle the terms between the parties to such sale---Parties, in the present case, had settled the price of land, delivery of possession and execution of sale deed---Parties had performed the terms agreed with regard to payment of price and delivery of possession and execution of sale deed was to be carried out---Plaintiff might claim reliefs as many as possible, however, court had to grant such relief which was proved and admissible under the law---Where facts were fully stated, mere absence of any specific words of specific relief could not be made basis for refusing the relief---Execution of agreement to sell and delivery of possession had been proved in the present case---Only act required to be performed for completion of sale of suit property was registration of sale deed---Supreme Court observed that Trial Court should have passed the decree of specific performance for execution of sale deed in favour of plaintiffs in circumstances---Suit filed by the plaintiffs was decreed in the terms that defendants would get the sale deed registered according to the terms of agreement to sell---Plaintiffs, in case of failure of defendants to get the deed registered, might approach the Trial Court which should get the same executed and registered through any of its official---Appeal was allowed in circumstances.
Mst. Roshan Jan and others v. M. Latif and another PLD 1987 SC (AJ&K) 93 and Hameedullah and others v. Muhammad Hussain and others 2006 SCR 183 ref.
Raja M. Fayyaz Khan, Advocate for Appellants (in Civil Appeal No.163 of 2017).
Raja Muhammad Hanif Khan, Advocate for Respondent No.1 (in Civil Appeal No.163 of 2017).
Raja Muhammad Hanif Khan, Advocate for Appellants (in Civil Appeal No.164 of 2017).
Raja M. Fayyaz Khan, Advocate for Respondents (in Civil Appeal No.164 of 2017).
2018 Y L R 1599
[Supreme Court (AJ&K)]
Before Raja Saeed Akram Khan and Sardar Abdul Hameed Khan, JJ
MUHAMMAD NAZIR and another---Appellants
Versus
JUSTICE OF PEACE, DISTRICT NEELUM and 2 others---Respondents
Civil Appeal No.315 of 2017, decided on 16th February, 2018
(On appeal from the order of the High Court dated 18.11.2017 in Writ Petition No.513 of 2017).
(a) Criminal Procedure Code (V of 1898)---
----Ss. 22-A, 22-B, 154 & 174---Application for registration of FIR before Justice of Peace---Order for registration of FIR---Direction by Justice of Peace to register case against accused persons---Prosecution had impugned the order passed by Ex-officio Justice of Peace, who had directed the Station House officer to register a case against the petitioners, which was dismissed---Petitioners had alleged that report under S. 174, Cr.P.C. had already been submitted and in such scenario, there was no occasion for passing the order for registration of case---Record showed that after the murder of the husband of respondent, she had approached the concerned Police for registration of the case but the needful was not done in spite of the fact that reliable evidence was brought on the record---Proper course had been adopted by the respondent by approaching the Ex-officio Justice of Peace---Section 174 Cr.P.C. provided that SHO, on receiving information that a person had committed suicide or had been killed by another or by an animal or by machinery or by an accident or had died under the circumstances raising reasonable suspicion that some other person had committed an offence, shall immediately give intimation thereof to the Magistrate empowered to hold inquest---Purpose of investigation under S. 174, Cr.P.C. or inquiry under S. 176, Cr.P.C. into the cause of death was only to ensure that no offence had been committed in connection with the death of a person---Medico Legal Report, in the present case, showed the cause of death of the deceased head injury---Proceedings under S. 174, Cr.P.C., in circumstances, were not warranted---Said provisions of law would come into play only when the cause of death was unknown---In the present case, respondent had moved a number of applications for registration of the case of murder of her husband---After being unsuccessful, she was left with no option except to move application under S. 22-A, Cr.P.C.---Respondent had established that it was a case of murder thus the Ex-officio Justice of Peace had rightly ordered for registration of the case---Appeal was dismissed in circumstances.
Muhammad Ayub v. SHO of Police Station and 2 others PLJ 2012 Cr. C (Quetta) 581; Safia Sultana v. Station House Officer Police Station Nawan Kot, Lahore PLD 1988 Lah. 714; Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 (W.P.) Lah. 662; Riaz Ahmed and 3 others v. The State PLD 1994 Lah. 485; Agha Qais v. The State PLJ 2010 Crl.C 511; In re Laxminarayan Timmanna Karki AIR 1928 Bombay 390; Ashiq Hussain v. Justice of Peace, Alipur and 2 others 2010 YLR 774; Mst. Nazeeran v. SHO Police Station Daharki and another 2013 YLR 268; Tasaddaq Hussain v. DPO and others 2007 PCr.LJ 145 and Muhammad Fazul v. The Province of Sindh through Home Secretary, Karachi and another 2013 PCr.LJ 168 ref.
Mushtaq Hussain v. State 2011 SCMR 45 and Kh. Muhammad Naheem and 4 others v. Justice of Peace and 5 others 2014 SCR 1049 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 154---First Information Report---Purpose and scope---Provisions of S. 154 Cr.P.C. were mandatory in nature---Said provisions postulated that every information relating to the commission of cognizable offence, if furnished orally or written to the SHO, would be reduced into writing by him---Purpose of registration of case was to set the law into motion; to obtain first hand spontaneous information of the occurrence, in order to exclude possibility of fabrication of story or consultation that deliberation or that complainant had time to device or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such like happenings/ occurrence in FIR.
Ch. Amjad Ali, Advocate for Appellants.
Muhammad Noorullah Qureshi, Advocate for Respondent No.3.
Zubair Ahmed Raja Additional Advocate General for the State.
2018 Y L R 1985
[Supreme Court (AJ&K)]
Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J
MUHAMMAD SAJJAD KHAN---Appellant
Versus
ABDUL QADOOS KHAN and 3 others---Respondents
Civil Appeal No.2 of 2018, decided on 29th January, 2018.
(On appeal from the order of the High Court dated 21.12.2017 in Writ Petition No.1930 of 2017)
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss.42 & 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, Rr.32 to 38---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss. 10, 11 & 19---Offence of zina, kidnapping abducting a woman for illicit relations etc.---Quashing of FIR---Filing of writ petition and its disposal by High Court---Procedure---Accused persons filed writ petition before the High Court, for quashing of FIR which was accepted---Validity---Filing of writ petition and its disposal by the High Court was provided under Rr.32 to 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984---Leave to appeal was granted to consider as to whether the High Court was justified to quash the FIR on the first date of hearing without providing the opportunity of hearing or filing written statement by the contesting respondents---When writ petition was filed, the Bench seized with the matter might issue a notice before admission of such petition, to the person affected thereby to show that why the petition might not be admitted---Contesting party after admission of the writ petition would be provided an opportunity of filing the written statements/ objections, documents, affidavits etc. and thereafter an opportunity would be provided to the writ petitioner for filing replication---Final disposal of the writ petition, without providing opportunity of filing written statement/objections and without hearing, was not in consonance with statutory provisions of law---No final relief could be granted without admitting the writ petition for regular hearing or providing opportunity of hearing to the contesting party---While setting aside the impugned order, Supreme Court remanded the Case to High Court for decision afresh after admitting the writ petition, seeking written statement/objections and providing fair opportunity of hearing to the contesting parties as well as the State.
Mohammad Kamran Idrees v. Sarmad Ahmed and 4 others 2014 SCR 473 and Muhammad Reaz Akhtar Chaudhary v. Sardar Karam Dad Khan and 14 others 2015 SCR 92 ref.
(b) Administration of justice---
----Where the statute provided a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss. 42, 42-A & 42-B---Powers and functions of Supreme Court---Binding effect of judgment of Supreme Court---Scope---Supreme Court was the apex judicial forum of the State and it had to interpret the law while hearing appeals from judgments of the High Court and the subordinate judiciary---Foremost duty as well as prerogative of the Supreme Court was to interpret the law in a consistent and organized manner to avoid legal uncertainty---Law declared by the Supreme Court was binding on all the organs of the State, and the subordinate courts were required to give utmost respect, regard and consideration to the judgment, in which the principle of law was enunciated---Jurisdiction of the Supreme Court under constitutional provisions was not just to decide the question of law, but the same also extended to enunciate the principles of law, which decisions and principles of law were binding on all other courts in the State---Object behind said jurisdiction was to achieve the legal certainty, stability and predictability and maintained the discipline in all ranks of judiciary---Deviation from the principle of 'stare decisis', could breed a sense of injustice and uncertainty, it could also lead to hamper trust of the litigants and the public-at-large on judiciary---Passing of an order by a forum without taking into account the law declared by the Supreme Court, would amount to deviation from the law declared---Such practice was deprecated by the Supreme Court---Law enunciated by the Supreme Court being binding in nature, in case of non-compliance consequences had been detailed in S.42-E(4) of Azad Jammu and Kashmir Interim Constitution Act, 1974; no person, even the Judge of the High Court was immune from the legal consequences thereof.
Maroof Baig v. Azad Government and 8 others 2016 SCR 1359; Finance Department of AJ&K and 2 others v. Mazhar Iqbal 2003 SCR 155 and Nazir Ahmed and another v. The State and others PLD 2014 SC 241 ref.
Shahzad Shaffi Awan, Advocate for Appellant.
Raja Imtiaz Latif, Advocate for Respondents Nos.1 and 2.
Zubair Ahmed Raja, Additional Advocate-General for the State.
2018 Y L R 2064
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
GULZAR HUSSAIN MUGHAL---Appellant
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 3 others---Respondents
Civil Appeals Nos.64, 66, 76 of 2009, decided on 28th February, 2013.
(On appeal from the judgment and decree of the High Court dated 16.7.2009 in Civil Appeals Nos.17 and 24 of 2008).
(a) Land Acquisition Act (I of 1894)---
----Ss. 18 & 20---Reference to court---Necessary party---Opportunity of hearing---Audi alteram partem, principle of---Applicability---Referee Judge deleted the names of persons in whose favour award was issued---Contention of department was that Referee Judge had not heard the parties for whom land had been acquired---Validity---None of the parties for whom land was acquired and in whose favour award had been issued were given notice by the Referee Judge---High Court had fell in error and mistake of fact while recording the findings in the impugned judgment---Service of notice upon Collector Land Acquisition did not mean that all other persons had become irrelevant or their names should be deleted---Water and Power Development Authority and others for whom land was acquired and award was issued were arrayed as defendants in the reference---Referee Judge deleted their names suo motu; neither notices had been issued to them nor they had been provided an opportunity of hearing before conclusion of proceedings of reference---Proceedings in the reference had been conducted without providing opportunity of hearing to the necessary party in circumstances---Principles of natural justice i.e. audi alteram partem had, therefore, been violated---No one should suffer for any act or omission of the Court or its official---Impugned judgment passed by the High Court was set aside---Case was remanded to the High Court for decision afresh---Appeal was disposed of in circumstances.
(b) Act of Court---
---No one should suffer for any act or omission of the Court or of its official.
Sardar M. Azam Khan, Advocate for Appellant (in Civil Appeal No.64 of 2009).
Haji Ch. Muhammad Afzal, Advocate for Respondents (in Civil Appeal No.64 of 2009).
Haji Ch. Muhammad Afzal, Advocate for Appellants (in Civil Appeal No.66 of 2009).
Ch. Shah Wali, Advocate for Respondents (in Civil Appeal No.66 of 2009).
Haji Ch. Muhammad Afzal, Advocate for Appellants (in Civil Appeal No.76 of 2009).
Sardar M. Azam Khan, Advocate for Respondents (in Civil Appeal No.76 of 2009).
2018 Y L R 2567
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J
TARIQ RIAZ MUGHAL and another---Petitioners
Versus
STATE through Advocate General of Azad Jammu and Kashmir and 2 others---Respondents
Criminal Revision No.1 of 2018, decided on 22nd February, 2018.
(On revision from the order of the Shariat Appellate Bench of the High Court dated 01.01.2018 in Revision Petition No.315 of 2017)
Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), Ss.406, 409, 419, 420, 467, 468 & 471---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.14---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document, theft liable to tazir---Bail, grant of---Allegation against accused persons was that they embezzled a huge amount from the government exchequer and also stolen the official record as well as the computer in which the necessary data was saved---Huge amount of money, relevant record and computer etc., were recovered from the accused persons---Alleged recovery, though, prima facie, connected accused with the commission of offence, but during the course of hearing, serious lapses on the part of Investigating team came on the surface, which could not be ignored lightly---Allegation of embezzlement being against a government servant, matter pertained to Anti-Corruption Department as the investigation by the local Police was not only impossible, but also against the rules---Accused persons remained under investigation of the local Police for a long time, but no steps were taken by the police to bring the Anti-Corruption department into the picture---Despite recording the findings that S.14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, was not attracted and the matter pertained to the Anti-Corruption Department, instead of deleting the said provision of the Act and transmitting the matter immediately to the concerned forum, Local Police, presented the challan against accused persons in the Tehsil Court---When Tehsil Court, returned the challan to the Police with the direction to present the same before the court of competent jurisdiction i.e. Court of Special Judge Anti-Corruption, under the provisions of S.344, Cr.P.C., the Police had to obtain the remand order from the court/Magistrate to keep the accused persons in custody, but no such legal formality was fulfilled---Police functionaries, could not justify such negligence---Defective/poor investigation had been conducted by the Investigating Officer, who otherwise was not competent to investigate the matter---Recovery of embezzled amount, though prima facie, connected the accused with the commission of offence, but they could not be kept in jail for an indefinite period due to the negligence on the part of Investigating Agency---Damaged, caused to accused persons, due to illegal confinement/ negligence of local Police, could not be cured or converted into a legal detention---No option was left with the court except to release the accused persons on bail---Bail was granted to accused persons, in the circumstances.
Muhammad Liaqat Sulehria v. SHO City Muzaffarabad and 6 others 2016 PCr.LJ 441 and Muhammad Razzaq v. Ehtesab Bureau and others 2017 SCR 328 ref.
Kh. Attaullah Chack, Advocate for Petitioners.
Raza Ali Khan, Advocate General and Akhlaq Hussain Kiani, Addl. Advocate General for Respondents.
Ch. Atta Muhammad (AIG Legal CPO Muzaffarabad), Waheed Ali Gillani (DSP Muzaffarabad), Ahsan-ul-Haq (DSP Anti-Corruption), Raja Ansar Sajjad (SHO Hattian and Ali Raza Dar (SHO Anti-Corruption, Muzaffarabad) in person.
2018 Y L R 2617
[Supreme Court (AJ&K)]
Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ
FARID KHAN---Appellant
Versus
LATIF KHAN and 9 others---Respondents
Civil Appeal No.55 of 2018, decided on 21st May, 2018.
(On appeal from the judgment and decree of the High Court dated 22.11.2017 in Civil Appeal No.149 of 2015).
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 39---Civil Procedure Code (V of 1908), O. XLI, R. 27---Suit for declaration---Maintainability---Co-sharer---Family partition---Sale of joint property without partition---Scope---Document not produced by the parties before the Court, consideration of---Requirements---Contention of plaintiff was that suit land was in his ownership and possession on the basis of family partition and defendant had sold excess land from his share without having possession and entitlement---Suit was dismissed by the Trial Court which was upheld by the Appellate Court but High Court decreed the same and sale deed was cancelled---Validity---Neither family partition nor possession on the suit land had been proved by the plaintiff---When plaintiff was out of the possession, he should have sought relief of possession---Present suit under S. 42 of Specific Relief Act, 1877 was not maintainable in circumstances---Findings recorded by the Trial Court had rightly been maintained by the Appellate Court---High Court was not justified in calculating the share of plaintiff only from one Khewat while leaving the other Khewat---Whole holding in the village comprising of different Khewats while calculating share of plaintiff was liable to be taken into consideration---Co-sharer in possession of a specific field number could validly transfer suit land even though his share in such specific field number had exceeded his share provided it did not exceed his overall share in the total land---Revenue staff could not go beyond the decree and was bound to give effect to it unless same was set aside or varied by the competent Court---Document not brought on record of the Court in accordance with procedure could not be considered or accepted by the Court---Proper procedure for the party would be to apply for bringing the said document on record as an additional evidence---Impugned judgment and decree passed by the High Court were set aside and those of Courts below were restored---Appeal was allowed in circumstances.
Atta Muhammad v. Sahibzada Manzoor Ahmad 1992 SCMR 138; Town Committee, Jalalpur Pirwala through Chairman v. Malik Mehr Bakhsh and another 2007 YLR 82 and Abdul Hameed, Ex-Fatwari resident of Village Karbat, Tehsil Cantt., District Lahore and others v. Member (Revenue) Board and 3 others 2005 SCMR 1617 = 2005 PLC (C.S.) 1367 ref.
Inayat Khan and another v. Muhammad Saleem Khan and others PLD 1993 SC (AJ&K) 4 distinguished.
Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75 rel.
(b) Civil Procedure Code (V of 1908)---
----Ss. 100 & 103---Second appeal---High Court, powers of---Scope---High Court was not to disturb concurrent findings of fact based on proper appreciation of evidence and not suffering from mis-reading and non-reading of record---If findings rendered by the Courts below were perverse, arbitrary, capricious and against settled law then High Court was bound to record proper findings---High Court in second appeal was empowered to determine any issue of fact necessary for disposal of appeal which had not been properly determined by the Courts below due to illegality, omission, error or defect.
Abdul Rashid Abbasi, Advocate for Appellant.
Ch. Muhammad Manzoor, Advocate for Respondents.
2018 Y L R 2675
[Supreme Court (AJ&K)]
Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J
NAZIR AHMED and 6 others---Appellants
Versus
RIAZ AHMED and 3 others---Respondents
Civil Appeal No.29 of 2012, decided on 15th March, 2013.
(On appeal from the judgment of the High Court dated 12.12.2011 in Writ Petition No.135 of 2006).
(a) Civil Procedure Code (V of 1908)---
----O. XIII, Rr. 1, 2 & O. VII, R. 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Additional evidence, production of---Requirements---Writ jurisdiction of High Court---Scope---Plaintiff-applicant moved application for production of documents as additional evidence when suit was fixed for final arguments---Trial Court dismissed the said application which was upheld by the revisional court---High Court accepted the writ petition and an opportunity was granted to produce documents---Validity---Plaintiff-applicant only mentioned that he wanted to file copies of jamabandi and khasra girdawari but it was not mentioned as to which year these pertain; what was the effect of non-production and why these documents were necessary to be produced as additional evidence---Documents which came from official custody and were part of official record could be allowed at a subsequent stage if a good cause was shown by the party as to why the documents could not be produced at earlier stage---Where a plaintiff sued upon a document in his possession or power then he should produce the same in the Court when plaint was presented---Plaintiff should file the document or a copy thereof with the plaint and all other documents upon which he relied as evidence in support of his claim---Such document should be entered in the list to be added or annexed to the plaint---Parties should produce at the first hearing of the suit all the documentary evidence in their possession or power which they intended to rely and which had not already been filed in the Court---Plaintiff-applicant had not relied upon the documents to be produced through present application---Present application being ambiguous, could not be accepted---Mere inadvertence could not be a ground for allowing the document at a later stage---Trial Court had not committed any illegality while dismissing the application for production of documents as additional evidence---Revisional Court had rightly refused to exercise revisional powers in circumstances---If High Court while exercising writ jurisdiction reached to the conclusion that Trial Court or Revisional Court had failed to exercise powers and order was against legal provision, writ of mandamus could be issued---High Court while exercising writ jurisdiction could not exercise those powers which were vested in it as an appellate Court---High Court could not sit as an appellate Court on the decision of lower Court in writ jurisdiction---Order impugned before the High Court must be against legal provision for issuance of writ---High Court had accepted writ petition without assigning any reason---Impugned judgment passed by the High Court was set aside and writ petition was dismissed---Appeal was allowed in circumstances.
Muhammad Ameen and 6 others v. Akbar Jan 2005 CLC 1322; Mst. Hajan Nawab Bibi v. Additional District Judge, Lahore and 3 others PLD 1993 Lah. 492; Muhammad Nawaz and another v. Additional District Judge Sargodha and 11 others 1999 CLC 1142; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; Muhammad Ajaib v. Khalid Hussain PLD 1995 AJ&K 5; Shoukat Usman v. United Bank Limited and 6 others 2011 CLC 1407 and Muhammad Afzal and 2 others v. Khush-hal and another PLD 2004 (AJ&K) 43 ref.
Muhammad Nazir v. Abdul Rashid and others 1998 SCR 248 and Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 distinguished.
Muhammad Ameen and 6 others v. Mst. Akbar Jan 2005 CLC 1322; Chief Engineer and another v. Anwar Begum and 9 others 2004 CLC 1320; Muhammad Khaliq v. Tehsildar Settlement Mirpur and 4 others 2004 YLR 1841; Muhammad Zahoor Kausar v. Mst. Akbar Jan 2011 SCR 87; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355 and Muhammad Rasib v. Mst. Maqsood Begum and 17 others 2011 SCR 59 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115--- Revision--- Scope--- Where subordinate Court had exercised the jurisdiction vested in it in a lawful manner and there was no material irregularity in the case decided, revisional powers could not be exercised.
Tariq Mehmood v. The Contractor Ahmed Din and 4 others 2009 CLC 940 rel.
Muhammad Reaz Alam, Advocate for Appellants.
Ch. Muhammad Afzal, Advocate for Respondents Nos.1 to 4.