YLR 2019 Judgments

2019 Y L R 449

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ

SAID RAHMAN, CONSTABLE NO.434, KARAK---Appellant

Versus

IKHTIAR BADSHAH and another---Respondents

Criminal Appeal No. 41/P of 2005, decided on 2nd October, 2018.

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

----S.265(D)---Framing of charge---Scope---Trial Court had not only to consider the police report or the complaint for framing of charge but all other documents and statements available on record.

2004 YLR 1802; 2002 SCMR 63 and 1985 SCMR 1314 rel.

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

----Ss. 324, 337-A(i), 337-F(i), 186, 148 & 149----Attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Prosecution case was that respondents/ accused persons assaulted on the complainant party, made firing on them, due to which two persons of the complainant party became injured---Prosecution was unable to point out any misreading, non-reading of its evidence by the Trial Court in the impugned judgment---Judgment appeared to be elaborate, well reasoned and based on correct appreciation of evidence, which did not warrant interference---Appeal was dismissed.

(c) Criminal trial---

----Benefit of doubt---Principle---Prosecution was bound to prove its case against the accused beyond reasonable doubt---If some doubts had been created in the prosecution case the accused would be acquitted not as a matter of grace but as a matter of right.

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

----Ss. 417(2-A) & 410---"Appeal against acquittal" and "appeal against conviction"---Scope---Appeal against acquittal was quite different from the appeal preferred against the findings of conviction---Appellate jurisdiction under S. 417 Cr.P.C. could be exercised by the court if gross injustice had been done, more particularly, wherein findings given by Trial Court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by the Trial Court were wholly artificial---Scope of appeal against acquittal of accused was considerably limited, because presumption of double innocence of the accused was attached to the order of acquittal.

2002 SCMR 713 rel.

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

----S.417(2-A)---Appeal against acquittal---Scope---Accused earned double presumption of innocence in case of acquittal, till found guilty he had to be considered innocent and his acquittal by Trial Court further confirmed the presumption of innocence.

2012 PCr.LJ 1699; 2013 YLR 223; 2011 PCr.LJ 1234; 2013 PCr.LJ 374; 2013 PCr.LJ 345; PLJ 2009 FSC 284; 2008 MLD 1007; 2002 MLD 293 and 2000 YLR 190 rel.

Astaghfirullah for Appellant.

Jalal-ud-Din Akbar Azam Khan for Respondents.

Malik Akhtar Hussain Awan, Assistant A.G., Khyber Pakhtunkhwa for the State.

2019 Y L R 487

[Federal Shariat Court]

Before Sheikh Najam ul Hassan, C.J., Mehmood Maqbool Bajwa and Syed Muhammad Farooq Shah, JJ

ABDUL WAHID BHURT and another---Appellants

Versus

ASHRAF and 4 others---Respondents

Appeal No.10-K of 2006, decided on 30th October, 2018.

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

----Ss. 417 & 422---Appeal against acquittal---Issuance of notice of appeal to accused---Procedure to proceed with appeal, either against conviction or acquittal, had been given in S.422, Cr.P.C.---Appellate court would cause notice to be given to accused in case of appeal under S.417, Cr.P.C.---Issuance of notice was essential, but service of notice was not a compulsion in order to decide the appeal; particularly, when whereabouts of accused, since acquitted, were not known and efforts were made by the court to procure their attendance by issuance of process time and again.

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

----S.417(2-A)---Appeal against acquittal---Interference--- Scope--- Yardstick for interference in the judgment of acquittal, was entirely different from the principles for reappraisal of evidence in case of conviction---Normally, appellate court would be reluctant to interfere with the findings of court below reaching to a different conclusion, unless acquittal order was contrary to the proved facts of prosecution case, perverse or bad in law---After securing the judgment of acquittal from the lower court, appeal against acquittal would not be allowed when prosecution failed to prove that the grounds on which Trial Court based the acquittal were un-reasonable unsound or manifestly wrong---Interference would be only permissible if the reasons advanced by Trial Court, while recording acquittal, were speculative or artificial in nature or based on no evidence---Substitution of opinion would not be permissible, if findings assailed were result of proper appreciation of evidence.

Hayat Bakhsh and others v. The State PLD 1981 SC 265 and Bashir alias Bashira and another v. The State and others 1995 SCMR 276 ref.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Occurrence had taken place at night---Case was registered against un-known accused---Complainant maintained that he saw the assailants in the moonlight---Mode of identifying accused in such a manner at the time of occurrence could not be acted upon---Name of one of the prosecution witnesses did not find mention in the crime report as a person witnessing the occurrence---Said witness, could not be said to be an eye-witness---Evidence of another witness, who was declared hostile, also would not advance the plea of appellants in view of deposition of the complainant, highlighting the time of arrival of said witness at the spot---Time of arrival of said witness as deposed by the complainant left no doubt that said witness was not present at the time of occurrence---Evidence of another prosecution witness did not find any corroboration from ocular account---Conviction could not be recorded on high probabilities---Magistrate, under whose supervision identification parade was conducted neither appeared in the court nor proceedings of identification parade, were produced---Said fact by itself was sufficient to brush aside the evidence of all the three witnesses on that aspect---Crime report revealed that features and descriptions of assailants did not find mentioned in it---Accused, seven in number, were mixed with other 10/15 persons at the time of identification---Joint identification test could not be acted upon, as law required separate identification parade of each and every accused---Said infirmity brushed aside the proceedings of identification parade---Non-disclosure of role of accused persons was another legal infirmity sufficient to brush aside the evidence of the witnesses on that score alone---One of prosecution witnesses in his examination-in-chief, had maintained that he clearly saw culprits in the moonlight whose faces were open---Seeing the assailants in the moonlight, would not enable the person to preserve and remember their features---Recovery of hatchet and double barrel gun from accused persons was of little significance as lathi and hatchet were not weapon of offence---Recovery of double barrel gun also could not provide corroboration as no empty was secured from the spot---Ocular account produced by prosecution did not inspire confidence---Conflict existed between medical and ocular account with reference to injuries inflicted on the person of complainant---Plea of alibi, though was not agitated by accused persons but that fact by itself was not sufficient to grant premium to the prosecution---Failure of accused to prove his plea of alibi, by itself would not be sufficient to grant premium to the prosecution---Prosecution had failed to prove its case beyond shadow of doubt, Trial Court had rightly reached to the conclusion, which was neither perverse nor arbitrary---Accused persons, earned double presumption of innocence in their favour, having the judgment of acquittal based on evidence---No interference was called for resulting in dismissal of appeal against acquittal.

Khalil v. The State 2017 SCMR 960; The State v. Abdul Ghaffar 1996 SCMR 678; Sarfraz Gul v. State PLD 2004 SC 334; Mukhtar Ahmed v. The State PLD 2002 SC 792; Nadeem and others v. The State and others 2014 PCr.LJ 374 and Muhammad Ashraf v. The State 2012 SCMR 419 ref.

(d) Criminal trial---

----Statement of hostile witness---Scope---Statement of hostile witness could not be brushed aside altogether and same could be taken into consideration, subject to availability of corroboration---Court was bound to consider and determine as to whether any part of evidence was worth believing, if examined in the light of other incriminating material and evidence on record.

Sarfraz Gul v. State PLD 2004 SC 334 ref.

Abdul Mateen Khan for Appellants.

Saleem Akhtar, Additional Prosecutor General for the State.

2019 Y L R 593

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Syed Muhammad Farooq Shah, JJ

ABDUL RASHEED---Appellant

Versus

FARHAN ALI and 6 others---Respondents

Criminal Appeal No.9-K of 2017, decided on 26th October, 2018.

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

----S.17(3)---Haraabah---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused persons with opened faces entered into the house of complainant, with pistols in their folds, they snatched keys of cupboard on gun point, robbed gold ornaments, cash and mobile phone and went away---Record reflected that the allegations levelled in the FIR lodged after eighteen days of the alleged occurrence could not be substantiated or established through evidence---Record showed that prosecution had failed to bring home the charge against the accused persons beyond reasonable doubt and the defence succeeded to create serious doubt and dents in the prosecution case---Trial Court had rightly acquitted the accused persons of the charge---No case of interference in the impugned judgment was made out---Appeal against acquittal having no merits was dismissed in limine.

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

----S. 417(2-A)---Appeal against acquittal and appeal against conviction---Scope---Appeal against acquittal was quite different from the appeal against the findings of conviction and sentence---Appellate jurisdiction under S. 417, Cr.P.C. could be exercised by the Court if gross injustice had been done in the administration of criminal justice, more particularly, wherein, findings given by trial court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by the Trial Court were wholly artificial---Scope of appeal against acquittal of accused was considerably limited, because presumption of double innocence of the accused was attached to the order of acquittal.

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

----S.417(2-A)---Appeal against acquittal---Scope---Accused earned double presumption of innocence with the acquittal, firstly, he had to be considered innocent till found guilty and secondly, acquittal by Trial Court further confirmed the presumption of innocence.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind about guilt of the accused entitled him to benefit not as a matter of grace but as a matter of right.

Zahid Hussain for Appellant.

Abdullah Rajput, D.P.G. for the State.

2019 Y L R 1203

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

Dr. MUHAMMAD ISMAIL---Appellant

Versus

AMAN ULLAH and another---Respondents

Criminal Appeal No.8/Q of 2009, decided on 6th December, 2018.

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

----S. 17(3)---Qanun-e-Shahadat (10 of 1984), Art. 39---Criminal Procedure Code (V of 1898), S. 417---Haraaba---Appreciation of evidence---Appeal against acquittal---Registration of FIR after visiting site---Extra judicial confession---Complainant was aggrieved of judgment passed by Trial Court whereby accused was acquitted of charge---Validity---First Information Report was lodged at 1:30pm and difference of timings of place of occurrence by police office revealed that either investigation was conducted by police before lodging FIR or statements of eye-witnesses were incorrect---Confession by accused of his guilt under custody of police, which was not made in presence of Magistrate, in absence of any strong corroborative piece of evidence had no legal sanctity in eyes of law---No improbability, infirmity and perversity in the judgment of acquittal recorded by Trial Court existed---High Court declined to interfere in judgment of acquittal passed by Trial Court as neither acquittal was arbitrary, capricious and fanciful and against record nor contrary to evidence brought on record which was based on sound and cogent reasons---Appeal was dismissed in circumstances.

Sheo Swarup and others v. King Emperor AIR 1934 PC 227 (2); Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Fazalur Rehman v. Abdul Ghani and another PLD 1977 SC 529; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Azhar Ali v. The State PLD 2010 SC 632; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 rel.

(b) Criminal trial---

----Delay in registration of FIR---Benefit of doubt, principle of---Applicability---Single circumstance creating reasonable doubt in prudent mind about guilt of accused entitles accused to such benefit not as a matter of grace but as a matter of right---Prosecution is bound to prove its case beyond any shadow of doubt---Conviction cannot be based on high probabilities and suspicion cannot take place of proof---No legal sanctity can be attached to FIR lodged after inordinate delay merely on disclosure of some source of information.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ahsan Rafiq Rana for Appellant.

Ghulam Farooq Mengal for Respondent.

Muhammad Naeem Khan Kakar, Additional Prosecutor General, Balochistan for the State.

2019 Y L R 1264

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ

AYAZ and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.4/I and Criminal Revision No.2/I of 2018, decided on 17th October, 2018.

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

----Ss. 302(b), 397 & 412---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery or dacoity, with attempt to cause death or grievous hurt, causing disappearance of evidence of offence, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons while robbing motorcycle and Rs. 70,000 from the brother of complainant, on resistance, fired upon him, which resulted into his death on the spot---Ocular account of the incident had been furnished by two witnesses including complainant---Complainant was brother of the deceased, who had lodged FIR on the basis of information provided by the sole eye-witness---Complainant/brother of the deceased in his examination-in-chief had narrated about the occurrence as mentioned in the FIR---Witness had admitted that he was not an eye-witness of the occurrence, as such, it could be construed that he had no direct information of the ocular account---Sole eye-witness had furnished the ocular account of the incident and testified that on day of occurrence he accompanied the deceased on the motorcycle and went to the shop of brother-in-law of deceased and demanded money from him---Brother-in-law of deceased might have handed over money to deceased and as such, they were coming back---Witness was de-boarded from the motorcycle and at a distance of 7/8 paces, he saw three persons, aiming their pistols and making firing upon the deceased, on his resistance---Witness had deposed that when he rushed towards deceased, said three persons while taking the motorcycle of deceased fled away---Witness had stated that at the relevant time, when he was attracted to deceased, he found him alive, who was taken to hospital in a taxi where the relatives of deceased including complainant arrived and reported the matter to police in casualty ward---Deceased, in the meanwhile succumbed to injuries---Witness had maintained that after couple of days, he was called at police station where recovery of money and pistol made from accused persons were shown to him by police officials---Allegedly, witness had identified the culprits in the identification parade in jail and he got recorded his statement under S. 164, Cr.P.C. before the Magistrate and charged the accused persons---Witness was cross-examined at length and during cross-examination, he was confronted with certain improvements made by him---Improvements so confronted were of no significance to diminish the evidentiary value of his testimony---Said witness, in his examination-in-chief had stated that at the relevant time brother-in-law of deceased might have handed over money to him, then how did he identify the cash amount of Rs. 70,000 to be the same amount, which was snatched from the deceased, therefore, such portion of his statement was highly questionable---In the present case, eye-witness had not only failed to give the descriptions of the accused persons but had also not ascribed individual role to each accused---Circumstances established that prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed, in circumstances and accused were acquitted from the charges by setting aside conviction and sentences recorded by the Trial Court.

State through Advocate General Sindh v. Farman Hussain and others PLD 1995 SC 1; Ali Sher and others v. The State 2008 SCMR 707; 2008 SCMR 6; 2004 YLR 3017; 2017 MLD 1962; Muhammad Ahmad alias Danyal v. The State 2005 YLR 954; 2012 YLR 1199; Abdul Salam and others v. The State and others PLD 2005 Quetta 86; Shafaqat Mehmood and others v. The State 2011 SCMR 537 and 2011 PCr.LJ 1819 ref.

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

----Ss. 302(b), 397 & 412---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery or dacoity, with attempt to cause death or grievous hurt, causing disappearance of evidence of offence, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Identification parade---Scope---Prosecution had claimed that accused persons were correctly identified by the witness in identification parade---Entire proceedings of identification suffered from gross illegalities and infirmities because the procedure adopted during the identification parade was against the Rules---Witnesses of identification parade including Judicial Magistrate had failed to give details of the dummies, who participated in the course of identification parade---Eye-witness had failed to attribute specific role to the accused persons played by them individually and collectively during the course of identification parade but not before the Trial Court---Reliance upon the testimony of sole eye-witness and the identification parade conducted by Investigating Officer under the supervision of Judicial Magistrate, was unsafe, in circumstances.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Abdul Salam and others v. The State and others PLD 2005 Quetta 86; State through Advocate General Sindh v. Farman Hussain and others PLD 1995 SC 1 and Muhammad Ahmad Alias Danyal v. The State 2005 YLR 954 ref.

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

----Ss. 302(b), 397 & 412---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery or dacoity, with attempt to cause death or grievous hurt, causing disappearance of evidence of offence, possessing unlicensed weapon---Appreciation of evidence---Recovery of crime weapons from accused persons--- Reliance--- Scope--- Record showed that 30-bore pistols were recovered from the possession of two accused at the time of their arrest---Seizing Officer had not prepared parcels of the said pistols on the spot---Parcels were prepared subsequently, for which no explanation had been offered by the prosecution---Marginal witnesses of the recovery memos of the pistols affected from the accused persons had not been produced before the court to corroborate the testimony of Seizing Officer---Recovery of pistols, in circumstances, could not be relied upon---Record transpired that 9-mm pistol was recovered from accused but Seizing Officer while arresting him did not make parcels with seal on the spot, which had made the recovery highly doubtful---Material contradictions existed in the statements of the prosecution witnesses, which had made the entire recovery doubtful---Record further showed that three (empties) shells recovered from the spot, were sent to the Forensic Science Laboratory along with crime weapons, which practice was depreciated---Recovery of crime weapon was inconsequential, in circumstances.

Mushtaq and 3 others v. The State PLD 2008 SC 1 ref.

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

----Ss. 302(b), 397 & 412---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery or dacoity, with attempt to cause death or grievous hurt, causing disappearance of evidence of offence, possessing unlicensed weapon---Appreciation of evidence---Delay in sending the crime weapons and empties to Forensic Science Laboratory---Effect---Record showed that there was a considerable delay in sending the pistols coupled with three empties shells---Three empties shells were secured from the crime scene on 22.9.2016,whereas the crime weapons were recovered from the accused person on 27.9.2016---Parcels of three empties shells and pistols were sent together, so received by the Forensic Science Laboratory on 13.10.2016; as to why the officials of police station had sent the same with such delay despite both the offices were situated in one city was not understandable---Investigating Officer of the case at no occasion had offered any explanation for keeping the said parcels at police station for sixteen days---Said delay gave rise to suspicion of manipulation and tampering with the said articles, which was deprecated---No explicit reliance could be placed on such Forensic Science Laboratory report, in circumstances.

Ali Sher and others v. The State 2008 SCMR 707 ref.

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

----Ss. 302(b), 397 & 412---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery or dacoity, with attempt to cause death or grievous hurt, causing disappearance of evidence of offence, possessing unlicensed weapon---Appreciation of evidence---Recovery of plundered money---Evidentiary value---Prosecution had failed to prove that the amount recovered from the accused persons was the same which was plundered---Neither the serial number of the notes were earlier available anywhere with any witness including person who gave money to the deceased on the day of occurrence nor he had stated in his testimony that the notes comprised of such and such denominations or had such marks of identification---To conclude that the amount recovered from the accused persons was the same amount which was plundered by the deceased or else was difficult---Prosecution had failed to produce the amount secured through recovery memos---Non-production of the case property made the recovery memos and testimony of the recovery witnesses without any credence which had destroyed the entire case of the prosecution.

Hussain Ali for Appellants (in Criminal Appeal No.4/I of 2018).

Malik Haroon Iqbal for the Complainant (in Criminal Appeal No.4/I of 2018).

Malik Akhtar Hussain Awan, Assistant Advocate General KPK for the State (in both cases).

Malik Haroon Iqbal for Petitioner (in Criminal Revision No.2/I of 2018).

Hussain Ali for Respondents (in Criminal Revision No.2/I of 2018).

2019 Y L R 1368

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa, Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

GOHAR alias CHAMAN---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.03/K and Criminal Murder Reference No.1/K of 2017, decided on 4th February, 2019.

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

----Ss. 302(b) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen, offender zina-bil-jabr---Appreciation of evidence---Circumstantial evidence---Prosecution case was that the accused murdered the daughter of complainant after committing zina-bil-jabr---Prosecution, in order to substantiate the charge, had produced as many as ten witnesses, including complainant, his wife and last seen witnesses of the occurrence---No eye-witness of the incident was available---Entire case of the prosecution revolved around the circumstantial evidence---Record showed that accused had asked to borrow the motorcycle of complainant from his wife---Deceased was sent by her mother to tell the accused that the motorcycle was not available whereafter the little daughter (aged 11 years) of complainant as per her mother was found missing---Mother of the deceased also deposed that when her daughter went missing, she informed her husband/complainant who came home and started search in the neighbourhood---Mother of the deceased during cross-examination had explained that besides hearing the voice of the accused, she had also seen him at the door while standing outside---Testimony of mother of deceased was further strengthened by the deposition of witnesses of last seen, who were independent witnesses, had absolutely nothing common to falsely depose against the accused---Both the said witnesses had corroborated each other on all material points---Said witnesses had put forth, what they knew while making statement on oath that on the day of occurrence, while they were standing at the corner of the street, they had witnessed the deceased in the company of accused, aboard in the yellow and black taxi---Witnesses had also stated in a voice that later, while complainant was searching his daughter, they apprised him about the said factum---Last seen witnesses were cross-examined on various points, but the accused had failed, even slightly to shake their deposition---Said witnesses remained firm and consistent with regard to the timings and even manner of aboard on taxi by the accused with the deceased---Accused had failed to suggest any personal grudge or enmity, being a reason to falsely depose against him---Depositions of last seen witnesses were found to be worth credence and confidence inspiring---Report of Chemical Examiner supported the prosecution case and was in conformity with the recovery made on the pointation of accused, suggesting his involvement in the crime---Autopsy report confirmed the commission of Zina as well as mode and manner in which victim was done to death---Circumstances established that the accused was guilty of committing rape and murder of deceased aged about 11 years and prosecution had successfully proved the charge beyond any shadow of doubt---Appeal was dismissed, in circumstances.

Imran Dully and another v. The State and others 2015 SCMR 155 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(b) Criminal trial---

----Last seen evidence---Evidentiary value---Evidence of last seen usually was not considered to be a strong piece of evidence---Where last seen evidence was corroborated by other strong circumstantial evidence, same had a considerable impact, leading to the guilt of culprit.

Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

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

----Ss. 302(b) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender zina-bil-jabr---Appreciation of evidence---Recovery of limbs and trunk and clothes of the deceased and weapon of offence---Reliance---Scope---Record reflected that none knew as to where and how the deceased was murdered until the accused voluntarily led the police contingent and other prosecution witnesses and got recovered the limbs and trunk of the deceased and tools of crime such as knife and hacksaw---Testimony of landlord of the rented house was material and worthy of credence, inspiring confidence and corroborated the testimony of complainant, Investigating Officer and other witnesses with regard to the timing, mode and manner of the said recovery made on the pointation of accused---Recovery in question was relied in circumstances.

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

----Art. 40---Statement made before police--- Admissibility--- Discovery of any fact on the information of the accused in custody of police was admissible.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 rel.

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

----Ss. 302(b) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender zina-bil-jabr---Confessional statement of accused---Scope---Record showed that confessional statement of the accused had been recorded by Judicial Magistrate, who testified that the accused was placed in the custody of court staff and was given two hours reflection---Magistrate, after being satisfied that the confessional statement was being recorded voluntarily by the accused, he reduced the confessional statement verbatim in his own handwriting in Urdu language which accused understood---Magistrate added that he appended a certificate of his satisfaction that the confessional statement of the accused was recorded voluntarily, whereupon on each page the signatures of the accused were obtained---Witness also testified that after recording, the confessional statement and obtaining the signatures, accused was sent to judicial custody---Confessional statement of accused had been found to be in accordance with law by all means---Judicial Magistrate had observed all the requisite formalities necessary for recording the confessional statement, which needed to be appreciated as no illegality or irregularity was found in the proceedings for recording the confessional statement of accused---Confessional statement had voluntarily been made, which was true as it was consistent with other circumstantial evidence, so putforth by the prosecution---Accused in his confessional statement in clear words had admitted that complainant was his friend to whom he sent rupees 4,70,000 from abroad but when he returned, complainant did not return his money as such he took his daughter from the street to his house, where he committed her murder and hid the dead body in the almirah and that he also committed rape with her.

Hashim Qasim and another v. The State 2017 SCMR 986 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

Kazi Wali Muhammad for Appellant.

Khadim Hussain Khooharo, Additional Prosecutor General Sindh for the State.

Qadir Khan Mandokhel for the Complainant.

2019 Y L R 1415

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa, Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

SANGEEN KHAN and another---Appellants

Versus

The STATE and another---Respondents

Appeal No.3-P and Murder References Nos.1-P and 2-P of 2017, decided on 19th September, 2018.

(a) Criminal trial---

----Circumstantial evidence--- Scope---Evidence of un-impeachable character proving guilt of accused excluding every possible hypothesis except the guilt should be produced, in case of circumstantial evidence---Chain of circumstances must be complete, unbroken, touching the crime, simultaneously leading to the neck of the accused.

Muhammad Ishaq v. The State 2009 SCMR 135; Miss Najiba and 2 others v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988; Muslim Shah v. The State PLD 2005 SC 108; Abdul Ghayas v. The State PLD 2007 Quetta 80 and Rasool Bakhsh v. The State 2000 SCMR 731 ref.

(b) Criminal trial---

----Direct evidence---Scope---Occurrence, in direct evidence is seen by the witnesses---Presence of the witnesses at the place of occurrence at the time of occurrence must be shown who are in a position to depose categorically that they witnessed the occurrence, committed by the person to whom it is attributed.

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

----S. 164---Confessional statement---Delay in recording the confessional statement of the accused---Effect---Delay in recording confession would not be sufficient to brush aside the same, if it is true and voluntary.

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

----Ss. 302, 392 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Confessional statement of accused persons---Value---Prosecution case was that accused persons engaged father of complainant a taxi driver, and after snatching the vehicle committed his murder---Admittedly Judicial Magistrate did not put question to both the accused persons to the effect that in case of their refusal or otherwise to make confession their custody would not be handed over to police---Investigating Officer had admitted that custody of accused persons was handed over to him by Qasid of the court and he admitted them in jail, which was fatal to the case of prosecution---Examination of both the confessions revealed that the makers had narrated the occurrence with one voice---However, both the accused in earlier part of the confession threw the responsibility upon their associate adding that it was he who persuaded him to snatch the car by abducting the driver---Said aspect could not be reconciled---Record showed that accused was produced at 8.30 a.m., proceedings commenced at 9.10 a.m. and statement was completed at 9.30---Same was the position with the time of commencement of writing statement of co-accused at 10.20 a.m., which was completed at 10.40 a.m.---Sufficient time was to be given to both the accused in order to think over the consequences of making confession, which was not done in the present case---Certificate showed that statements were recorded in Urdu but were read over interpreted in Pashto---Judicial Magistrate did not say a word that he was fully acquainted with the language in which statements were read over to the accused persons---Nothing was available on record to suggest that handcuffs of the accused persons were removed prior to recording their statements---Medical evidence by no stretch of imagination could disclose and prove identity of culprits---Circumstances suggested that there was failure of prosecution to prove the culpability of accused persons beyond shadow of doubt, therefore, medical evidence disclosing locale of injury pointed out in similar manner by complainant and in the confessional statements would be of little help to the case of prosecution---Circumstances established that the evidence led by prosecution was neither worthy of credit nor inspired confidence---Chain to connect the accused to the commission of murder of deceased remained incomplete, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Azeem Khan and another v. Mujahid Khan and others 2015 SCMR 274; Muhammad Ismail and others v. The State 2017 SCMR 898 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(e) Criminal trial---

----Recovery---Corroborative evidence---Scope---Recovery is always considered a corroborative piece of evidence and by itself can not provide basis for conviction.

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

----Ss. 302, 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that recovery of pistol was effected from the house of a person on the stated disclosure of co-accused as stated by official witness---Said witness had stated that co-accused disclosed that pistol was given to that person by his brother to whom same was handed over by said co-accused as evident from the evidence of a witness---Weapon was recovered from the house of a person, pointation, if any, lost its significance for the reason that co-accused had given pistol to his brother, who handed over the same to another person, who kept pistol in his house---Exclusive knowledge of co-accused as such was embroidery---Recovery of pistol was affected on 14.1.2014 as stated by witness, but Medical Officer stated that during conduct of post-mortem examination, information was received regarding recovery of pistol from the accused arrested on 9.1.2014---Empty and pistol were sent together to the Forensic Science Laboratory on 16.1.2014---No reliance could be placed upon the factum of recovery and positive report of Forensic Science Laboratory, in circumstances.

Sher Muhammad Khan for Appellants.

Naveed Akhtar for the Complainant.

Walayat Khan Assistant Advocate General, KPK for the State.

2019 Y L R 1458

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

ASIF alias CHINA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.33/K and 34/K of 2018, decided on 11th February, 2019.

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

----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Robbery, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons duly armed with pistols intercepted the complainant and snatched cash amounting to Rs. forty thousand, one prize bond of Rs. 750 and one mobile phone from his pocket and fled away---Prosecution case hinged on sole ocular testimony of complainant---Record showed that complainant in deposition had improved his statement as narrated in the FIR--- Investigating officer had admitted that names of staff were not mentioned in entry book whereby they left the police station---Investigating Officer had admitted that no identification parade of accused persons was conducted and the envelope wherein the property was kept was not sealed---Investigating Officer had also admitted that he neither himself signed nor obtained signature of mashir---Investigating Officer had stated during the course of cross-examination that nothing was recovered from the co-accused--- Sufficient material discrepancies and contradictions were found in prosecution evidence---Evidence of complainant had not been corroborated by any eye-witness---Complainant had tried to improve his statement averred in the FIR, as by explaining the delay of 46 days in lodging FIR, he had given two fold version---On one side, complainant had supported the contents of the FIR and on the other, he had stated in examination-in-chief that after the incident, he immediately rushed to the police station and he was asked to disclose the names of accused---Complainant had reviewed that he had taken the amount from a dairy and found the co-accused sitting on the stall of his father, which was located in front of said dairy and at the time of taking money from dairy, co-accused was staring at him---On the date of arrest complainant found co-accused sitting at the same place, hence, he informed the police by lodging the FIR---Co-accused had not been questioned on alleged recovery of robbed property from his person---Material discrepancies could be noted in the prosecution case, which adversely affected the credibility of prosecution witnesses---Appeal was allowed and accused were acquitted, in circumstances, by setting aside the conviction and sentences recorded by the Trial Court.

Tariq Parvez v. The State 1995 SCMR 1345; Muhammad Ilyas v. The State 1997 SCMR 25 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

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

----S. 342---Examination of accused by the court---Scope---Omission to confront the accused on alleged recovery under S.342, Cr.P.C.--- Effect--- Conviction could not sustain as such irregularity could not be cured.

Mehmood Raza v. The State 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 rel.

Ghulam Nabi Jarwar for Appellant (in Crl. Appeal No.33/K of 2018).

Ms. Shazia Yaseen Khan for Appellant (in Crl. Appeal No.34/K of 2018).

Khadim Hussain Khooraho, Additional Prosecutor General, Sindh for the State.

2019 Y L R 1494

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

SALEEM ULLAH and another---Appellants

versus

The STATE and another---Respondents

Jail Criminal Appeal No.19/I and Criminal Revision No. 3/Q of 2017, decided on 11th December, 2018.

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

----Ss. 302 & 397---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of son of the complainant after snatching his motorcycle---Record showed that none had seen the accused committing murder of the deceased with his own eyes---Case of the prosecution depended on circumstantial evidence---Prosecution had produced one witness to prove the circumstantial evidence---Said witness had testified that on the relevant day, he was present in the mountains with his camel to get wood---Witness met deceased with accused and accused told that they were going to sell the motorcycle of the deceased, whereafter they had left---Witness had maintained that at about 2.00 p.m., when he reached near the road, accused came on the motorcycle and told him that deceased had fallen from the motorcycle and asked him to accompany, so as to bring him---Witness had refused to accompany him on the excuse that he could not leave the camel alone, accused pushed him, resultantly he fell down into the dry river---Accused started hitting him on his head with stones, whereby he got severely injured---Said witness had admitted that he did not see accused committing murder of deceased---Record transpired that said witness had got registered a separate case under the offence of S.324, P.P.C., for which accused was booked, tried and convicted---Mere presence of the accused with the deceased or lastly seen in his company alone did not hold him culpabable, unless strong corroborative evidence was available, convincing enough with unbroken chain of events, relating the dead body with the accused---Statement of said witnesses had been recorded with a delay of seven days without any cogent explanation---Injuries of said witness were not so, which could prevent him to record his statement promptly---If believed that said witness was the only person present on the crime scene and that the cause of attack by accused upon him was not helping him to rescue the accused than his story was unconvincing and compelling to infer differently---Such stance of witness was strange to observe that as to why a murderer would come, asking for help to save the deceased and on refusal would attack upon witness and cause him injuries---Enough time and space for the accused was available to make his escape good after committing murder of the deceased as nobody had seen him while committing murder---If accused had killed the deceased, why he would rush to the witness for help---Attending circumstances of the case had suggested that the story narrated by the said witness seemed improbable, unreasonable and absolutely unconvincing---Suspicion would go upon the witness that there was a possibility that the deceased had altercation with him, which resulted into the death of the deceased and to absolve himself, he had concocted and tailored such story of last seen and causing injuries by accused---In the present case, since the recovery of pistol had been discarded, therefore, the report of Forensic Science Laboratory of the said crime weapon would become immaterial and of no consequence---Circumstances established that judgment impugned was unsustainable and liable to be set aside---Appeal was allowed and accused was acquitted of the charges accordingly.

(b) Criminal trial---

----Evidence---Last seen evidence---Evidentiary value---Last seen evidence was considered as a very weak form of evidence, unless there was strong, impeachable and overwhelming corroborative evidence.

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

----Ss. 302 & 397---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Recovery of incriminating material---Reliance---Scope---Accused was charged for committing murder of son of the complainant after snatching his motorcycle---Record showed that accused was arrested from his house, where Police Officials found the frame, engine and other parts of the motorcycle of the deceased and a mobile set, which were taken into possession through recovery memo---Said articles were produced in the court but neither colour nor other description of the motorcycle had been given by any prosecution witness prior to the recovery---None of the prosecution witnesses including complainant provided the details of make, serial No., colour and other description of the mobile phone before the recovery---Recovery of the said articles had not been effected on the basis of proper disclosure memo and pointation of the accused, therefore, it would be difficult and hard to consider the same as corroborative evidence.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Muhammad Abid and others v. The State and others 2016 PCr.LJ 257 rel.

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

----Arts. 38, 39 & 40---Recovery on disclosure by accused in police custody---Scope---Such recovery, even if made in consequence of disclosure by accused, could not be considered as a corroborative piece of evidence---Disclosure of accused relating to admission of crime in police custody was inadmissible as the same amounted to confession before police, and offended Arts. 38 & 39 of Qanun-e-Shahadat, 1984, not falling within the purview of Art. 40 of the said Qanun.

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

----Ss. 302 & 397---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Benefit of doubt---Delay in sending crime weapon to the Forensic Science Laboratory for analysis---Effect---Record showed that alleged recovery of crime weapon was effected on 29.10.2016 but was received by the Forensic Science Laboratory on 25.11.2016 with an unexplained considerably delay---Such delay was fatal for the case of prosecution.

Hashim Qasim and another v. The State 2017 SCMR 986; Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605; Ali Sher and others v. The State 2008 SCMR 707 and Mushtaq and 3 others v. The State PLD 2008 SC 1 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence neither pinpoints the culprits nor establish his identity and at the most it can be looked to ascertain the locale of injury, duration, and distance but it can never be considered to be a corroborative piece of evidence---Medical evidence can be considered as supportive evidence only to the extent of specification of seat of injury, the weapon used, duration and cause of death.

(g) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence is always considered a weak type of evidence---Conviction can be based on such evidence, if the same is duly corroborated by such evidence, which maintains a complete chain of circumstances directly related to each other---If any link in the chain is missing in case of circumstantial evidence, it is not safe to record or uphold conviction.

(h) Criminal trial---

----Benefit of doubt---Principle---If the case of prosecution based on circumstantial evidence, is doubtful, the accused would earn its benefit not as a matter of grace and concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Abdul Karim Khan Yousafzai for Appellants.

Muhammad Naeem Khan Kakar, Additional Prosecutor General, Balochistan for the State.

Asghar Khan Panezai for the Complainant.

2019 Y L R 1663

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

The STATE---Appellant

Versus

ZAR MUHAMMAD and 3 others---Respondents

Criminal Appeal No.19/I of 2016 and Criminal Appeal No.2/I of 2017, decided on 18th January, 2019.

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

----S. 417---Appeal against acquittal---Principle---Yardstick for interference in a judgment of acquittal are entirely different from that of a judgment of conviction---Judgment of acquittal can only be interfered, if conclusions drawn are speculative, arbitrarily, artificial and a result of misreading and non-reading of evidence---Such judgment cannot be interfered merely for reason that another view of evidence is possible.

Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss. 170, 342 & 457---Criminal Procedure Code (V of 1898), S. 417---Haraaba, impersonating government official, illegal confinement and house trespass---Appeal against acquittal---Appreciation of evidence---Dual innocence, presumption of---Defective identification parade---Unexplained delay in FIR---Delay of three days in lodging of FIR without any plausible or justifiable explanation---Accused were nominated without disclosing any source, showing as to how complainant came to know about names of culprits---Complainant did not state as to who informed him and how the names of culprits were known to him---Allegedly, accused persons had pretended to be army soldiers but complainant never stated to have approached army officials of the area confirm otherwise of particulars of accused---Complainant allegedly had identified gold ornaments such as necklace and an ear ring and certain artificial ornaments as looted property but details of artificial ornaments did not figure in memo of identification---Complainant had not reported that his artificial ornaments were taken away by accused as such identifying artificial ornaments, subsequently did not improve case of prosecution rather diminished evidentiary value of entire identification proceedings---Federal Shariat Court declined to interfere in judgment passed by Trial Court as it was passed on logical and legal reasons and did not suffer from any perversity, illegality, misreading and non-reading of evidence---Acquittal of accused was maintained as evidence on record that held accused guilty was insufficient and after earning acquittal, presumption of dual innocence came into play---Appeal was dismissed in circumstances.

Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Sarfraz alias Safu and others v. The State 2017 YLR Note 220 and Farman Ali v. The State 2018 YLR 2307 ref.

Walayat Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State (in Criminal Appeal No.19/I of 2016).

Yousaf Ali for Respondents (in Criminal Appeal No.19/I of 2016).

Shan Zeb Khan for Appellant (in Criminal Appeal No.2/I of 2017).

Yousaf Ali for Respondents (in Criminal Appeal No.2/I of 2017).

Walayat Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State (in Criminal Appeal No.2/I of 2017).

2019 Y L R 2021

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

ZAHIR KHAN and others---Appellants

Versus

AZAD KHAN and another---Respondents

Criminal Appeal No.21-P of 2005, decided on 3rd April, 2019.

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

----S. 11---Criminal Procedure Code (V of 1898), S.417(2-A)---Kidnapping, abducting or inducing woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---Accused was charged for causing injury to the complainant and also abducting wife of a prosecution witness with intention to commit zina with her---Ocular account of prosecution witnesses seemed to be inconsistent rather contradictory, as the complainant did not support the contents of the FIR---Complainant, while narrating a different story in his deposition, had stated that he found the accused and his wife while committing zina outside of his house---Complainant when tried to catch hold the accused, he made firing upon him and after inflicting bullet injuries to him, he made his escape-good along with abductee by leaving trouser (Shalwar) of abductee---Complainant further stated that the police had not recorded his statement in verbatim and that abductee could not be recovered---Complainant, in cross-examination, had clarified that it was night time incident and he proceeded to the police station along with witnesses---Complainant had emphatically denied the story as narrated in the FIR and further stated that he had seen the abductee undressed going along with accused while holding his hand---Complainant had admitted in the cross-examination that the story which he had narrated before the court did not transpire in the FIR---Remaining material prosecution evidence had transpired that the deposition of lady witness was hearsay evidence about the incident, disclosed to her by his son/witness---Witness had stated that at 11:00 a.m. on commotion, he along with complainant went outside their house and found abductee and accused standing there and when complainant tried to catch hold the accused, he fired upon the complainant---Evidence of other witness was also hearsay, as he was informed about the incident by his house imamates---Witness, claiming to be the husband of alleged abductee, involved the accused had admitted that he himself had not seen the abduction---Investigating Officer had stated that the semen obtained from accused and semen available on trouser (Shalwar) of abductee did not match as per report of Center for applied Molecular Biology---Despite such fact S.11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was added in the FIR---Complainant had admitted the contradictions in the application, FIR and statements recorded under S.164, Cr.P.C. and that accused neither made confession nor abductee or ammunition was recovered---Complainant had stated in cross-examination that trouser (Shalwar) of abductee was not recovered from the place of occurrence but it was handed over to him by a lady---Circumstances established that prosecu-tion had failed to prove charge against the accused---Impugned judgment was based upon plausible reasons, recorded after scanning and evaluating the evidence adduced by the prosecution---Findings of the Trial Court were not perverse, illegal, leading to miscarriage of justice or artificial---Impugned judgment did not warrant any interference by Federal Shariat Court---Appeal against acquittal was dismissed accordingly.

Muhammad Sohail, Assistant Advocate General, K.P.K. for the State.

2019 Y L R 2066

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

IBRAHIM and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 37/K of 2018, decided on 14th March, 2019.

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

----Ss. 394, 511, 324, 341, 403, 336 & 34---Voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, attempt to commit qatl-i-amd, wrongful restraint, dishonest misappropriation of property, Itlaf-i-Salahiyaat-i-Udw common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused-appellants on motorcycle intercepted the complainant and victim and asked them that despite their directions they did not close pan cabin; suddenly, accused-appellants took out pistol from fold of his shalwar and fired straight upon the complainant party which hit brother of complainant on left upper side of abdomen, who fell down from the motorcycle, co-accused robbed an amount of Rs. 86000 and three CNICs from the pocket of injured---Ocular account of the prosecution case hinged on testimonies of complainant and two prosecution witnesses by narrating the story of occurrence---Allegedly, injured remained unconscious for seven days and regained his senses in the hospital---First Information Report was lodged against the accused on 31.3.2016, contents of which were not read over to the complainant, hence he instituted direct complaint in the Court---Witness, claiming to be an eye-witness, did not support the complainant with regard to alleged robbery of Rs. 86000/- and three CNICs, as disclosed by the complainant---Said witness had not supported the complainant that appellant/accused made straight fire, which hit left side of abdomen of victim and in cross-examination, he had stated that the incident had occurred in dark night but he identified the accused in the light of the motorcycle---Witness had further stated that police did not record his statement after registration of the case and admitted that there was no mention of robbery in his statement under S. 164, Cr.P.C.---Investigating Officer had admitted that statements of persons from the vicinity had not been recorded---Circumstances established that prosecution had failed to discharge its responsibility of proving the case against the appellants/accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State 2014 SCMR 749; Muhammad Mansha v. The State 2018 SCMR 772; Sarfraz alias Safri and others v. The State and another 2017 PCr.LJ 246; Pervaiz Haider Khan v. The State and others 2018 PCr.LJ 77; Aitbar Shah and 4 others v. The State and another 2018 PCr.LJ 566; Jabbar v. The State 2014 YLR 135; Imran v. The State 2018 PCr.LJ 716; Allah Dino and 2 others v. The State 2018 PCr.LJ 200; Sarfraz alias Safu and others v. The State 2017 YLR 220 and Lal Bux v. Dhani Bux and 3 others 2013 PCr.LJ 345 ref.

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

----Ss. 394, 511, 324, 341, 403, 336 & 34---Voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, attempt to commit qatl-i-amd, wrongful restraint, dishonest misappropriation of property, Itlaf-i-Salahiyaat-i-Udw common intention---Appreciation of evidence---Medical evidence--- Scope--- Medical Officer had shown single bullet injury on the person of injured, though, testimony of the complainant depicted two persons inflicted bullet injuries separately to the injured---Investigating Officer had stated that he recovered one empty of .30 bore pistol from the place of incident, prepared necessary memos, recorded the statements of witnesses under S.161, Cr.P.C.---Prosecution evidence reflected material contradictions and inconsistencies in-between medical and ocular testimonies---Complainant while assigning specific separate role of inflicting bullet injuries to the injured by accused and co-accused stated that straight fire made by the accused with pistol hit on left side of abdomen of the injured---Allegedly, co-accused also made fire from pistol, which hit on backside of brother of the complainant---Medical Officer had stated that he found lacerated wound of entrance/exit, on left side of abdomen on the person of the injured---Complainant had stated that injured became unconscious for seven days, however, Medical Officer had stated in cross-examination that injured came in hospital in conscious condition---Eye-witnesses had stated in examination-in-chief that co-accused made straight fire on the person of injured and they did not assign any role of causing fire arm injury by accused---Medical evidence did not support the allegations levelled by the complainant with regard to assigning separate role of causing bullet injuries by the accused persons, in circumstances.

(c) Criminal trial---

----Conviction---Scope---Conviction could not be maintained solely on the basis of presumption.

Muhammad Sachal R. Awan for Appellants.

Riaz Hussain Soomro for the Complainant.

Abdullah Rajput, Deputy Prosecutor General, Sindh for the State.

2019 Y L R 2270

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

NIAZ MUHAMMAD and another---Appellants

Versus

ZAR WALI KHAN and 4 others---Respondents

Criminal Appeal No.62-P of 2003, decided on 2nd April, 2019.

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

----S. 17(2) & (4)---Criminal Procedure Code (V of 1898), S. 161---Qanun-e-Shahadat (10 of 1984), Art.22---Haraabah---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Night-time occurrence---Delay in recording statement under S.161, Cr.P.C.---Delayed identification parade---Effect---Accused persons were charged for committing murder and injurying another person---Complainant (eye-witness) did not describe the assailants in FIR but identified the accused persons in the identification parade---Complainant and injured eye-witness nominated three assailants but in his suplementary statement complainant nominated four persons---Injured eye-witness admitted in his cross-examination that the occurrence took place in the wink of an eye but claimed to have identified the culprits---Prudent mind could not believe that in a dark night, complainant and injured eye-witness were able to identify the assailants, who emerged in the wink of an eye, made indiscriminate firing and escaped---Statement of injured eye-witness was recorded after considerable delay, although an explanation was offered to the effect that he was admitted in the hospital but no evidence was produced to prove that he was unable to get his statement recorded---Delayed statement of injured eye-witness impaired its evidentiary value---Procedure of identification was carried out only two times instead of thrice, which was not lawful---Identification parade was conducted with a considerable delay after the arrest of accused persons---7 mm empties were taken into possession from the crime scene on the very next morning but after recovery of 8 mm rifle, investigating officer managed an opinion from an armourer, who opined subsequently that empties were of 8 mm rifle instead, whereof no other inference could be drawn except that prosecution had maneuvered the recovery of the empties with the purpose to match it with 8 mm rifle---Prosecution had failed to prove its case beyond doubt against the accused persons---Appeal against acquittal was dismissed.

Muhammad Asif v. The State 2017 SCMR 486; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Farooq and another v. The State 2017 SCMR 986; Ali Sher and others v. The State 2008 SCMR 707 and Mushtaq and 3 others v. The State PLD 2008 SC 1 ref.

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

----S. 17--- Haraabah--- Recovery of weapon---Empties and the rifle were sent together and delay of 13 days was shown in the receipt of the parcel of the empties by the Forensic Science Laboratory, whereof no explanation was offered---Evidentiary value of such forensic evidence was reduced to nullity.

(c) Criminal trial---

----Evidence--- Injured eye-witness---Scope---Injuries of a prosecution witness only indicate his presence at the spot but are not affirmative proof of his credibility and truth.

Nazir Ahmed v. Muhammad Iqbal and another 2011 SCMR 527 fol.

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

----S. 161---Supplementary statement---Involvement and nomination of accused on the basis of supplementary statement was depreciated and disapproved by the Federal Shariat Court.

Kashif Ali v. The Judge, Anti-Terrorism, Court No.II Lahore and others PLD 2016 SC 951; Akhtar Ali and others v. The State 2008 SCMR 6 and Kaleem Ullah v. The State and another 2018 YLR 2363 ref.

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

----Art. 22---Identification parade---Scope---Identification parade is not a legal document, which can vary from case to case---Identification parade has to be conducted keeping in view the attending circumstances of the case with the purpose to rule out any false involvement, but the procedure and parameters in that respect have to be followed---Non-assignment of any role to accused persons by the prosecution witnesses cast damage on evidentiary value of the identification parade.

Bacha Zeb v. The State 2010 SCMR 1189; Azhar Mehmood and others v. The State 2017 SCMR 135; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537; Manzoor Ahmad alias Shahzad alias Sheeri and others v. The State 2012 YLR 2481 and Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 ref.

(f) Criminal trial---

----Recovery of weapon---Evidentiary value---Recovery of weapon itself cannot be considered as a corroborative piece of evidence unless the empties recovered from the place of occurrence are sent to the Forensic Science Laboratory and a positive matching report is procured.

(g) Criminal trial---

----Medical evidence--- Evidentiary value---Medical evidence may confirm ocular account with respect to the receipt of injury, nature of injuries, kind of weapon used in the crime but it cannot be connected with the commission of the offence---Even it cannot be considered as corroborative piece of evidence.

Malik Zeb for Appellants.

Ahmad Jan Khattak for Respondent No.1.

Adnan Khattak for Respondents Nos. 2 to 4.

Willayat Khan, Assistant Advocate General, KPK for the State.

Date of hearing: 2nd April, 2019.

2019 Y L R 2329

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

The STATE through Advocate-General, KPK, Peshawar---Petitioner

Versus

ZUBAIR AHMAD KIYANI and another---Respondents

Criminal Appeal No. 02/P of 2018, decided on 8th April, 2019.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 436, 452 & 412---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Haraabah---Mischief by fire with intent to destroy house---House-trespass after preparation for hurt, assault or wrongful restraint---Dishonestly receiving stolen property in the commission of a dacoity---Appreciation of evidence---Benefit of doubt---Accused persons were charged for setting the house of complainant on fire---Prosecution, in order to prove its case, relied on recovery of stolen articles and confessional statement of an accused before the Magistrate---Held; recovered articles were not sealed on the spot---Entry and roznamcha was not produced to prove movement of police from police station to the place of arrest and recovery of case property---Identification test of case property was not conducted in accordance with settled principles of law as recovered articles were shown to the complainant prior to the identification test---Confessional statement of accused was not available on file and its legal authenticity was discarded by Trial Court---Appeal against acquittal was dismissed.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; SheoSwarup and others v. King Emperor AIR 1934 PC 227(2); Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Fazal-ur-Rehman v. Abdul Ghani and another PLD 1977 SC 529; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Azhar Ali v. The State PLD 2010 SC 632; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution is bound to prove its case against the accused beyond reasonable doubt and if some doubt is created in the prosecution case then the accused shall be acquitted, not as a matter of grace but as a matter of right.

(c) Criminal trial---

----Conviction--- Scope--- Conviction cannot be based on high probabilities and suspicion cannot take place of proof.

(d) Criminal trial---

----Circumstantial evidence---Scope---Conviction can only be based upon unimpeachable evidence and certainty of guilt---Circumstantial evidence should be in chain of circumstances interlinked in the manner that it makes out single unbroken chain with intrinsic worth and reliability of every single piece of evidence as part of chain of circumstances.

Malik Akhtar Hussain, Assistant Advocate General, KPK for the State/ Appellant.

Date of hearing: 8th April, 2019.

2019 Y L R 2710

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD SAEED AKHTAR---Appellant

Versus

MUHAMMAD ASHRAF and 3 others---Respondents

Criminal Appeal No. 75-L of 2009, decided on 30th April, 2019.

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

----Ss. 3 & 7---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 4---Criminal Procedure Code (V of 1898), S. 417---Qazf---Scope---Appeal against acquittal---Appreciation of evidence---Imputation of Zina---Proof---Complainant was aggrieved of acquittal of accused by Trial Court in F.I.R. registered against them for making false allegation of commission of Zina by him---Validity---Accusation by itself was not sufficient even to suggest actionable claim against accused---Qazf under S. 3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 required specific imputation of Zina as defined in S. 4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Complainant and his wife in their respective statements attributed allegation of giving false evidence against them not only in Trial Court during trial but also during course of investigation though same was not agitated in crime report---Such deposition could not attract penal provision under which case was registered (Qazf)---As deterrent, punishments were provided therefore, it required harder proof to substantiate same and any premium, if possibly could be given, had to be extended to accused---Expression 'going for purpose of Zina' was more or less a guess which words could not be considered substitute of expression 'Zina'---Federal Shariat Court declined to interfere in matter as prosecution failed to prove case beyond shadow of doubt---Appeal was dismissed in circumstances.

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

----S. 4---Term 'Zina'---Connotation---Words 'said to commit Zina' and 'willfully have sexual intercourse' contained in S. 4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 demonstrates actual commission of Zina.

Shahid Mehmood Khan for Appellant.

Syed Mumtaz Hussain Bukhari for Respondents Nos.1 to 3.

Ghulam Abbas Gondal, Deputy Prosecutor General, Punjab for the State.

2019 Y L R 2719

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

ASAD alias DILOO---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 44-K of 2018, decided on 25th April, 2019.

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

----Ss. 302, 324 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party made firing on the complainant party, due to which brother of complainant died and other sustained injuries---Prosecution case rested upon the testimony of three witnesses including complainant and the injured---Brother of deceased/witness had also given the ocular account in almost similar words as furnished by his brother/complainant---Injured witness had also reiterated the ocular account of murder of his 'munshi' and causing injury to him by the assailants---Certain contradictions in testimony of the said witnesses had made involvement of the accused-appellant in the crime highly doubtful---Eye-witnesses had stated to have seen three persons grapping with his deceased brother whereas injured witness had stated that amongst three one remained with the motorcycle whereas two entered in his shop, who got grappled with his 'munshi'---Injured witness had identified the accused-appellant in the court as a culprit who made firing upon him and the deceased, on the contrary eye-witnesses had categorically stated that amongst the assailants one fired upon the deceased whereas the other culprits made fire upon the injured---Said contradictions had demolished the entire prosecution version, casting doubt with regard to the presence of complainant and his brother---Eye-witnesses had stated that soon after the occurrence a lot of people came at the crime scene from the nearby mosque but none from them had been made witness to independently affirm the presence of the eye-witnesses on the crime scene---Post-mortem report transpired that the mouth and eyes of the deceased were found half opened, which could not happen in the presence of eye-witnesses---If the eye-witnesses were present at the crime scene, they would have shut the mouth and the eyes of the deceased, while taking them to the hospital and thereafter--- Undeniably, the occurrence took place in darkness---Complainant though in his statement before the court did not mention the source of light but assailants had been identified in the light of bulb, find mentioned in the FIR---Considering the statement of witnesses to have identified the culprits in the light of bulb had made an obligation upon the prosecution to have had collected the bulb statedly being the source in which the assailants were identified---None of the eye-witnesses including injured had given description of the assailants, which was incumbent upon them to have had mentioned about their features, height and body structure as the assailants were not known to them---Occurrence lasted for 2/3 minutes as stated by complainant during cross-examination and as such it could be gathered that the eye-witnesses and injured had a glimpse of the culprits---Circumstances established that the prosecution had failed to discharge their obligation by establishing the charge against the appellant beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Lal Khan v. The State 2006 SCMR 1846; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Azhar Mehmood and others v. The State 2017 SCMR 135 and Javed Khan Alias Bacha and another v. The State and another 2017 SCMR 524 rel.

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

----Ss. 302, 324 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, haraabah---Appreciation of evidence---Delay of about twenty four hours in lodging the FIR---Effect---Admittedly, there was a delay of about 24 hours in lodging the FIR, which albeit was not appreciated but as none had been nominated in the FIR, therefore, the delay was not of a kind giving rise to any manipulation and substitution.

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

----Art. 22---Identification parade---Object and scope---Main object of identification proceedings was to enable a witness to properly identify a person involved in the crime and to exclude the possibility of a witness, simply confirming a faint recollection or impression that was, of an old, young, tall, short, fat, thin, dark or fair suspect.

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

----Ss. 302, 324 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S.17(4)---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, haraabah---Appreciation of evidence---Identification parade---Scope---Record showed that the accused-appellant was arrested in some other case on suspicion---Reasons for suspicion had not been brought on record in the present case---Said fact inferred to believe that since the culprits were not known and were untraceable, therefore, to wrap up the case, the accused-appellant who was confined in some other case was made scapegoat and was involved by the police through manipulated identification parade---Most flagrant flaw in the identification parade was that three witnesses in one go picked up the appellant once by each accused---Accused-appellant was to be identified thrice by each witness but by not doing so the entire identification parade had become immaterial and unworthy of credence, whereupon no reliance could be placed---Since the descriptions of the assailants were not given by the eye-witnesses prior to the arrest of the accused-appellant, therefore, the identification parade had otherwise become inconsequential, having no evidentiary value---Injured witness had also not given any description of the assailants nor had taken part in any identification parade and as such identification by him for the first time in the court was unworthy and absolutely unsafe to be relied upon because identification of an accused per se in the court had never been appreciated and considered to be incriminating for holding an accused culpable of the crime.

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

----Ss. 302, 324 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, haraabah---Appreciation of evidence---Recovery of pistol from accused---Reliance---Scope---Neither the crime empty at the earliest nor the crime weapon recovered subsequently were sent for analysis to the Ballistic Expert, therefore, the recovery of pistol had become irrelevant and could not be considered as a corroborative piece of evidence---Recovery of pistol by itself might have constituted an offence punishable under S. 12(e) of Pakistan Arms Ordinance, 1965, but could not be read as supportive evidence in the instant case.

Usman Alias Kaloo v. The State 2017 SCMR 622 rel.

Mrs. Ambreen Siyal for Appellant.

Zafar Ahmad Khan, Additional Prosecutor General, Sindh for the State.

2019 Y L R 154

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

RAJAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.28 of 2018, decided on 17th September, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that on the day of occurrence the accused blocked thoroughfare by laying thorny bushes and when the brother and father of complainant asked the reason of closure of road, the accused called both of them on the pretext of solving the dispute and when both of them reached near the accused, he opened fire on them with 30-bore pistol; resultantly, both of them died---Motive behind the occurrence stated to be old dispute of pathway---Unnatural death of deceased was not disputed---Medical evidence confirmed bullet injuries caused with fire-arm---Ocular testimony produced by the prosecution, which was in the shape of direct evidence of witnesses, who deposed that they were present at the shop of a witness situated at a walking distance of 1-2 minutes from the place of occurrence---Said witnesses reached at the place of occurrence when heard report of fire shots and saw the accused carrying the weapon of offence in his hand, while dead body of the deceased was lying on the ground, whereas the other was in injured condition---Said witness asked the accused why he did so, whereupon the accused told that he had been fed-up with the deceased and injured person and wanted to go to jail---Circumstances established that prosecution through ocular evidence, medical evidence and recovery of weapon of offence and other incriminating material had proved its case against the accused beyond any shadow of any reasonable doubt, hence trial court had rightly convicted the accused---Accused had filed the present appeal after lapse of about three years of the passing of impugned judgment, which was time barred---Appeal was dismissed in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Weapon of offence was recovered from possession of accused---Reliance---Scope---Record showed that weapon of offence had been recovered from the possession of accused in presence of witnesses---Accused was directly nominated in the FIR with specific role---Crime weapon and two empty shells of said 30-bore pistol were sent to Forensic Science Laboratory and were matched during forensic examination---Recovery, in circumstances, supported the prosecution case---Appeal was dismissed in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Motive, proof of---Motive of the occurrence stated to be the dispute between complainant and accused party over the right of pathway---Witnesses of ocular account had admitted that on easement dispute the parties had involved in quarrelling/fighting, which was supported by other prosecution witness---Motive had been established against the accused in circumstances.

Muhammad Saleem Khan for Appellant.

2019 Y L R 169

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SAFDAR ALI KHAN and 6 others---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary GB, Gilgit and 5 others---Respondents

C. Rev. No.22 of 2016, decided on 30th April, 2018.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17 & S. 153---Amendment of pleadings---Scope---Plaintiffs-petitioners moved application for amendment in the plaint but same was dismissed---Validity---Plaintiffs had sought minor amendment in the plaint on the basis of original cause of action---Court could allow amendment at any stage of proceedings for fair and just decision of the case---Technicalities were to be avoided while deciding the matter---If proposed amendment was to be allowed then neither nature of suit was to be changed nor fresh cause of action would be introduced---If there was any defect or error in the proceeding in a suit then same could be amended at any time---Impugned order passed by the Trial Court was set aside and application for amendment of plaint was allowed---Revision was accepted in circumstances.

PLD 1991 SC 374 rel.

Mir Zeeshan Akhlaq for Petitioners.

Additional Advocate-General and Sarfaraz Ahmed Dy. Advocate General (Civil) for Respondents.

2019 Y L R 187

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

Dr. ASHFAQ KARIM and 2 others---Petitioners

Versus

FEDERAL MINISTRY OF HEALTH through Secretary National Health Service Regulation and Coordination and 2 others---Respondents

Writ Petition No.150 of 2016, decided on 13th March, 2017.

Pharmacy Act (XI of 1967)---

----S. 4(d)(e)---Central Pharmacy Council of Pakistan---Non-inclusion of members of Central Pharmacy Council from Gilgit-Baltistan vide notification by Government of Pakistan--- Validity--- Impugned notification was not only discriminatory but also against the Fundamental Rights of the petitioners---Said notification was declared as illegal and without lawful authority---Authorities were directed to issue fresh notification in the light of Pharmacy Act, 1967 including petitioners therein seeking required nomination required in the said Act, 1967 from concerned Secretary Health and Population Welfare Gilgit-Baltistan---Writ petition was disposed of in circumstances.

Basharat Ali and Zahid Ali Baig for Petitioners.

Dy. Attorney General and Dr. Kifayatullah Khan, Chief Drug Inspector for the Respondents.

2019 Y L R 413

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SHER KHAN---Petitioner

Versus

The STATE---Respondent

Cr.Misc No.122 of 2018, decided on 20th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-F, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, hurt, abetment, common intention----Bail, grant of---Abetment---Old age of accused---Scope---Petitioner/accused was implicated only for the offence of abetment as Investigation Officer had purportedly collected evidence against him during the investigation---Petitioner contended that neither he was directly charged in the FIR nor he was alleged to be present at the place of occurrence at the time of occurrence---Validity---Prosecution had failed to produce, before the High Court, any direct and circumstantial evidence collected by the Investigation Officer during the investigation---Some evidence of overt action or a common design to commit a particular offence was necessary to sustain the charge of abetment of an offence, which was lacking in the present case---Petitioner was in his advanced age being 78 years old as per his CNIC---Petitioner having made out a case for grant of bail was admitted to bail.

Jehanzeb Khan for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 484

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Mst. BASKIA and another---Appellants

Versus

GUSHER alias GUNAIR and another---Respondents

Criminal Appeal No.27 of 2018, decided on 31st August, 2018.

Penal Code (XLV of 1860)---

----Ss. 302, 109 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Accused was charged abetting and instigating three co-accused to commit murder of husband of the complainant---Complainant had contended that Trial Court had wrongly acquitted the accused as she and her witness deposed against him---Validity---Accused, admittedly, was not present at the place of occurrence at the time of occurrence and he was involved in the present case on the presumption that he had abetted and instigated the principal accused to commit murder of the deceased---Common practice prevalent in concerned District was that if one person committed an offence his whole family members were involved in the offence by the complainant party---No independent and impartial witness had deposed against the accused that he had abetted or instigated co-accused to commit murder of the deceased---Complainant and one prosecution witness, who was also son-in-law of the deceased, had deposed against the accused in the Trial Court---Said witness stated that one or two days prior to the occurrence, he along with other prosecution witnesses went to the place of residence of the accused, where the accused was commanding/instructing his sons and nephews to commit the murder of the deceased---Both the said prosecution witnesses were closely related to the deceased and there was old enmity between the complainant party and the accused---Said prosecution witnesses were interested, hostile, inimical to the accused---Conviction could not be based on the statement of said prosecution witnesses as their evidence required corroboration which was lacking in the present case---Appeal against acquittal was dismissed, in circumstances.

Mir Hassan for Appellants.

2019 Y L R 511

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NIJAT---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.82 of 2017, decided on 24th June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.364-A, 364-B, 376 & 114---Kidnapping or abducting a person under the age of ten, kidnapping abducting or inducing woman to compel for marriage, rape, abductor present when offence was committed---Bail, grant of---Further inquiry---Prosecution's case was that alleged abductee left the house of her parents at her own accord and was a consenting party to whole of the action---Alleged abductee in her statement before the Judicial Magistrate recorded under S.164, Cr.P.C., had not levelled any incriminating allegation on accused---Question as to whether accused had shared common intention with the principal accused or not was a matter of further inquiry---Case of an abettor or facilitator, was always at lower footing as compared to principal accused when the involvement of accused would become doubtful or debatable, his case would become as one of the further inquiry---Accused having been able to make out a case for grant of bail, he was admitted to bail, in circumstances.

Abdul Malik for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 524

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umer, JJ

Messrs SHAHEEN AND SONS GOVERNMENT CONTRACTOR through Managing Director (MD)---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 6 others ---Respondents

Writ Petition No.133 of 2016, Civil Miscellaneous Nos.293 of 2016, 292, 295, 330 of 2017, 51 and 88 of 2018, decided on 23rd May, 2018.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71(2)---Writ petition---Scope---Contentions in the petition were that petitioners being contractors were rendering services in Gilgit-Baltistan and Pakistan since 57 years; that they were awarded building contract which almost 80% was completed when the contract was rescinded and they were "blacklisted"; that Chief Engineer also removed their name from the list of contractors of Gilgit Baltistan Public Works Department---Petitioners had prayed for setting aside the impugned actions of the Chief Engineer with direction to allow petitioners to complete the work without any hindrance---Validity---Tenders had been invited for the project, bidders had deposited their bids and call deposits, but due to some unknown reasons the tenders were not opened---When the injunction in the case was vacated, on the same day, whole process was completed and the contracts were awarded, which showed the collusion of authorities and contractors---No plausible, cogent and satisfying reasons had been furnished, for granting contract to the concerned contractors---While granting contract requisite care and caution had not been observed---Chief Court, opened all tenders and found that some lowest bidders were not allowed to participate due to mala fides and collusion of blue-eyed persons with the authorities---On opening the tenders of the petitioners contractors, disqualified by the authorities, it was found that the authorities committed gross irregularities and illegalities, while awarding the contracts to their favourites---Whole process was tainted, full of mala fides and a heavy loss had been caused to government exchequer, while leaving the lowest bidders and showering bounties on selected group of contractors---Court, though always been reluctant in setting at naught the matters relating to the Development Projects, but that particular approach had been misread and misconceived by the mafias, a chunk of which existed in almost every department; whether it be a public, private or Government Department---Reluctance at the part of the court had been construed, either as its weakness or constitutional/ legal mandate to be mandatorily observed in each and every case; which even had a slightest resemblance or even a remotest link with any of the project, might fall within the definition of "Development Projects", even in the remotest sense---No one was above the law and Chief Court being custodian of law would ensure supremacy of law---Chief Court being a constitutional court, could take a notice of any subsequent development and could grant relief to an aggrieved party, even if same had not been claimed according to changing circumstances---Case was referred to National Accountability Bureau for inquiry/investigation and filing of reference against the Officials/Contractors after collection of substantial evidence about collusion of the parties who had caused heavy loss to government exchequer---Writ petition was disposed off accordingly.

PLD 2011 Quetta 67; PLD 1992 SC 1126; PLD 2001 Lah. 13 and 2009 CLC 1314 ref.

Assadullah Khan for Petitioners.

Amjad Hussain for Respondent.

Assistant Advocate General for pro-forma Respondents.

2019 Y L R 602

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SHERBAZ---Appellant

Versus

LIAQAT ALI---Respondent

C.F.A. No.56 of 2017, decided on 1st October, 2018.

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

----O. IX, R.7 & S. 151---Ex parte order, setting aside of---Appearance of defendant during proceedings---Duty of Court---Scope---Appellant/defendant failed to appear before the Trial Court and was proceeded ex parte---Defendant filed application under O. IX, R. 7, C.P.C. for setting aside of ex parte proceedings and once again did not appear before the Trial Court---Application under O. IX, R. 7, C.P.C. was dismissed---Defendant filed application under S. 151, C.P.C. for restoration of his application filed under O. IX, R. 7, C.P.C. which was also dismissed by the Trial Court---Validity---Held, Trial Court had proceeded ex parte against the defendant on 17-09-2016, thereafter defendant remained absent on some dates of hearing---Defendant appeared before Trial Court on 29-11-2016, Trial Court should have re-called ex parte proceedings on his appearance before Trial Court---Trial Court received/obtained application on behalf of defendant filed under O. IX, R. 7, C.P.C., which was later on dismissed in default---Court, while considering the application for setting aside ex parte proceedings, had to take lenient view---Court had to pass a favourable order on application ofdefendant as all the Rules laid down in C.P.C. were intended for advancing justice and not for retarding the same purely on technicalities---Defendant who was proceeded against ex parte could participate in proceedings of case before its disposal---Trial Court was directed by the Chief Court to afford fair opportunity to defendant to lead his evidence and thereafter dispose of the suit on merits in accordance with law.

PLD 2004 SC (AJK) 20 ref.

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

----O. IX, R.7---Ex-parte order, setting aside of---Duty of Court---Court, while considering the application for setting aside ex parte proceedings, must take lenient view---Court had to pass order in favour of the defendant as all the Rules laid down in C.P.C. were intended for advancing justice and not for retarding the same purely on technicalities.

PLD 2004 SC (AJK) 20 ref.

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

----O. IX, R.7---Ex-parte proceedings---Defendant who was proceeded against ex parte could participate in proceedings of case before its disposal.

PLD 2004 SC (AJK) 20 ref.

Basharat Ali for Appellant.

Johar Ali for Respondent.

2019 Y L R 646

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD ISMAIL---Petitioner

Versus

ZAMINDARAN-E-JAFFARABAD through Representatives and 2 others-- Respondents

C. Rev. No.30 of 2018, decided on 16th October, 2018.

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

----O.VII, R.11---Rejection of plaint---Scope---Defendants filed application for rejection of plaint on the ground that suit was barred by limitation---Trial Court dismissed the application whereas Appellate Court allowed the appeal and rejected the plaint holding that the question of limitation was mixed question of law and fact which could not be decided without determination of factual position by leading evidence---Validity---Appellate Court did not touch the ground of limitation rather it rejected the suit on the ground of res judicata---Plaintiff was not party to the previous suit---Parties and court could not go beyond pleadings---Controversial questions of fact or law could not be resolved under O.VII, R.11, C.P.C. rather proper course for the court in such case was to frame issue on such question and decide the same on merits in the light of evidence---Revision petition was accepted, in circumstances.

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

----O. VI, R. 7---Pleadings, departure from---Scope---Parties and court could not go beyond pleadings.

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

----O.VII, R.11---Rejection of plaint---Controversial questions of fact and law---Scope---Controversial questions of fact or law could not be resolved under O.VII, R.11, C.P.C. rather proper course for the court in such a was to frame issue on the question and decide the same on merits in the light of evidence.

Nazir Ahmed and Ghulam Nabi for Petitioner.

Rais Khan and Syed Riaz Kazimi for Respondents.

2019 Y L R 666

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umar, JJ

MUHAMMAD NASIR---Petitioner

Versus

STATE through Chairman National Accountability Bureau---Respondent

Writ Petition No.124 of 2017, decided on 21st June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9 & 16---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.71(2) & 63---Corruption and corrupt practice---Bail, grant of---Chief Court granted bail to accused, but the Supreme Appellate Court recalled bail granting order, directing the National Accountability Court to hear and conclude the case on its own merits expediously within a period of six months---Writ petition for concession of bail had been filed on the ground that direction of the Supreme Appellate Court had not been followed and out of 29 prosecution witnesses only 7 had been examined and that early trial of the case was not in the sight---Under provisions of S.16 of National Accountability Ordinance, 1999 trial of accused would be conducted on day-to-day basis and would be completed within 30 days---Supreme Appellate Court had allowed 6 months time for conclusion of trial---Direction issued by Supreme Appellate Court had binding effect, not only for the subordinate judiciary, but for all the executive authorities and violation thereof would amount to contempt of court---Non-compliance of the directives of the Supreme Appellate Court had entitled accused for concession of bail---Accused was granted bail accordingly.

Raja Shakeel Ahmed for Petitioner.

Muhammad Amin for NAB.

2019 Y L R 684

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 52 of 2014, decided on 12th March, 2018.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused with co-accused persons, while holding pistol .12-bore rifles committed the murder of son of the complainant---Record showed that complainant had nominated accused and his two sons for the murder---Complainant had not alleged any motive in the FIR nor the same sounded anywhere, except in his cross-examination, by stating that there was allegation of murder of son of accused against him and his deceased son---Complainant was accompanying his son at the time of occurrence and they both were soft target for the accused party---Record was silent as to why the accused who were three in number spared the complainant and only had chosen the deceased to kill especially when the accused had backup of his two sons, who were armed with .12-bore rifles---Complainant had not stated in the site plan that the fire was opened by the two acquitted accused nor eye-witnesses had deposed that it was opened with a pistol by the accused---Trial Court did not believe the prosecution evidence and acquitted co-accused persons by extending them benefit of doubt, but convicted the accused on the same set of evidence---Record transpired that post-mortem report of the deceased was not got exhibited the Trial Court by the Medical Officer, therefore the post-mortem report merited exclusion---Circumstances established that the entire prosecution evidence was replete with the gravest doubts and full of inherent defects, 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 against him by the Trial Court.

2008 SCMR 95;2008 SCMR 707; 2014 PCr.LJ 404; 2002 YLR 3658; 2007 SCMR 1812 and 2010 SCMR 97 ref.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Recovery of weapon of offence---Reliance---Scope---Weapon of offence, revolver, was allegedly recovered from the accused in the presence of marginal witnesses---One marginal witness had stated that the weapon was not the same, which was shown to him by the local police at the time of recovery---Said witness had alleged that the weapon had not been recovered from the accused in the presence of marginal witnesses---Other marginal witness also stated the same version and did not identify the weapon in the Trial Court---Said witnesses were not declared hostile by the prosecution---Weapon of offence was not sent to Forensic Expert for his opinion---Such recovery was inconsequential in circumstances.

(c) Criminal trial---

----Post-mortem report---Scope---Post-mortem report did not establish the identity of assailant and only confirmed the cause of death.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt was the sole right of the accused.

2009 SCMR 230 and 2003 PCr.LJ 1847 rel.

Amjad Hussain for Appellants.

Dy. Advocate General for the State.

2019 Y L R 698

[Gilgit-Baltistan Chief Court]

Before Muhammad Umer and Ali Baig, JJ

The STATE---Petitioner

Versus

MUZAFAR SHAH---Respondent

Criminal Revision Petitions Nos.17 and 133 of 2018, decided on 15th August, 2018.

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

----S. 9(b)---Possession of about 800 grams of Charas---Appreciation of evidence---Enhancement of punishment---Trial Court awarded , in different trials, imprisonment for the period which the convicts had already undergone---Accused pleaded guilty---Scope and effect---Contention that lesser punishment was awarded to the convicts despite the fact that they had pleaded guilty---Record reveled that 810 grams of Charas was recovered from the possession of one accused and total 828 grams of Charas was recovered from the possession of the other---Both the accused persons had confessed their guilt and had placed themselves at the mercy of Trial Court as such the Trial Court had rightly awarded lesser punishment---Common practice was that once a person involved in criminal case wanted to plead guilty to the charge levelled against him and placed himself at the mercy of the Court in that eventuality he became a friend of the Court and the Court always took lenient view in respect of his sentence---Trial Court had not committed any illegality or martial irregularity in exercise of its jurisdiction---Trial Court had passed the impugned orders strictly in accordance with law, justice and equity which could not be interfered with by High Court in exercise of its revisional jurisdiction--- Criminal revisions were dismissed in circumstances.

PLD 2013 Pesh. 35 ref.

Dy. Advocate General for the State.

2019 Y L R 719

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUZAFFAR---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.119 of 2018, decided on 17th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 354, 341, 509, 376 & 511---Assault or use of criminal force to a woman with intent to outrage her modesty, wrongfully restraining any person, insulting modesty or causing sexual harassment, attempt to commit rape---Bail, grant of---Further inquiry---Petitioner was not nominated in the FIR---Complainant alleged that petitioner caught hold the hands of her sister and assaulted her, with intent to outrage her modesty, while she was returning from the house of her uncle---Petitioner contended that he was entitled for the concession of bail as Ss. 376 & 511, P.P.C. were inserted in the charge later by the Police---Admittedly, no attempt had been made by the petitioner to commit Zina with the victim lady as it was not claimed by her---Neither clothes of alleged victim had been torn during alleged incident nor same had been taken off so as to commit Zina or Zina-bil-Jabar with her---Whether the allegations contained in the FIR/challan attracted the provisions of Ss. 376, 354 & 511, P.P.C. was question to be determined by the Trial Court on the basis of evidence---Petitioner was arrested after more than seven months of the incident---Contents of FIR revealed that petitioner/accused was not mentioned in the FIR but no identification parade was held---Petitioner was behind the bars for more than 5 months---Case of the petitioner called for further inquiry into his guilt as envisaged under S. 497(2), Cr.P.C---Petitioner was admitted to bail, in circumstances.

Najeebullah for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 938

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

TAIMOOR ALI TIWANA---Appellant

Versus

MEHR-U-NISA MALIK---Respondent

C.F.A. No.10 of 2017, decided on 29th November, 2018.

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

----Ss. 7 & 25---Welfare of minor---Mother's right of hizanat---Scope---Mother would be entitled to custody of minor male child until he completed the age of seven years and that of female child until she attained the age of puberty---Such right of mother would continue even if she was divorced by the father of child unless she remarried---Father could claim custody of minors if the disqualification of mother was proved.

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

----Ss. 7, 25 & 47---Welfare of minor---Right of hizanat---Father getting second wife---Appeal---Scope---Petitioner, father sought custody of two minor daughters who had been living with their mother since birth---Guardian Judge dismissed the petition of father for custody of minors---Validity---Mother of minors was a doctor by profession and was earning sufficient income; she had been looking after minors since their birth and maintaining a good environment---Petitioner, father had contracted second marriage and mother had not---Father was settled in USA, with his newly wedded wife who was a foreigner---Guardian Judge having rightly dismissed the petition, appeal was dismissed.

Basharat Ali for Appellant.

Iqbal Parvi for Respondent.

Date of hearing: 28th November, 2018.

2019 Y L R 952

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SAJJAD ALI---Petitioner

Versus

ARIF and 4 others---Respondents

C. Rev. No.118 of 2018, decided on 24th December, 2018.

Specific Relief Act (I of 1877)---

----Ss.54 & 42---Civil Procedure Code (V of 1908), O.VII, Rr. 3 & 11---Suit for perpetual injunction without relief of declaration of ownership of suit property---Rejection of plaint---Lack of proper description of property in question---Plaintiff filed suit for permanent injunction claiming that he was owner of land which was purchased by him but defendants were trying to dispossess him---Trial Court rejected the plaint and Appellate Court dismissed the appeal---Validity---Plaintiff had sought only permanent injunction in his plaint and had not sought declaration of ownership of the suit property, hence a consequential relief of permanent or interim injunction could not be granted without a declaration about ownership---Plaintiff had not properly described the land in question in his plaint; he had not disclosed any khasra number or mutation number nor had annexed any revenue record with the plaint---Revision petition was dismissed, in circumstances.

2002 CLC 571 ref.

Zahid Ali Baig for Petitioner.

Date of hearing: 24th December, 2018.

2019 Y L R 975

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad,C.J. and Malik Haq Nawaz, J

HANEEN GUL---Petitioner

Versus

GOVERNMENT OF GILGIT BALTISTAN through Chief Secretary and 10 others---Respondents

Writ Petitions Nos.255 and 258 of 2017, decided on 14th December, 2017.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 8 & 33--- Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 71 (2)---Educational institution---Nomination against reserved seats for MBBS and BDS---Equal treatment---Scope---Contentions of candidate were that he scored aggregate marks but had not been nominated for reserved seat of MBBS and BDS---Validity---No passing marks limit in the entry test of Punjab, Khyber Pakhtunkhwa and Balochistan had been fixed and nomination was to be made on the basis of eligibility of respective Province---Forty three seats for MBBS and five seats for BDS were filled on open merit among the candidates of Gilgit-Baltistan while forty three seats were distributed on the basis of population of each district---Seven seats had been reserved which were to be filled amongst the candidates belonging to District Diamer---Petitioner and three respondents were hailing from District Diamer---Last merit list for Punjab closed at 78.51 and one candidate was nominated and last nominated candidate from District Diamer scored 58.44 marks while one of the petitioners scored 50.77 marks---Petitioner did not appear in Khyber Pakhtunkhwa entry test which was a pre-requisite and she could not be adjusted against any seat of Khyber Pakhtunkhwa Province---Every one could not be treated alike and reasonable classification if based on an intelligible differentia could be recognized---Policy matters required expertise and experience which were made keeping in view the social, political and other allied matters according to changing circumstances---If policy was initiated by the government then Court was not to interfere until and unless same was in conflict with any provision of law or was violative of Fundamental Right of a citizen---No flaw was pointed out in the nomination made by the authorities---Writ petition was dismissed in circumstances.

Asad Ullah Khan for Petitioner.

Assistant Advocate-General assistant by Amjad Hussain, Basharat Ali and Ibrahim-ud-Din for Respondents.

Date of hearing: 14th December, 2017.

2019 Y L R 999

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NAQEEB SHAH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.55 of 2018, decided on 24th April, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497(1), 157 & 164---Penal Code (XLV of 1860), Ss. 170, 419, 420, 468 & 471---Personating public servant, cheating by personation, forgery for purpose of cheating, using a forged document---Bail, refusal of---Crime against society---Scope--- Accused was nominated in FIR with specific allegation to defraud innocent people by extracting money to get them job---Forged appointment letters had been recovered from possession of the accused---People, who became prey to the fraud of the accused had implicated the accused in the crime---Deceptive behavior of the accused depriving the innocent poor people from their life saving could not be ignored---Such-offence was not only heinous but an offence against humanity and society---Accused did not deserve discretionary relief, when there existed a prima facie case against him---Accused was refused bail, in circumstances.

Jahanzeb Khan for Petitioner.

Dy. Advocate General for the State.

Date of hearing: 24th April, 2018.

2019 Y L R 1101

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

Mst. ZAIB-UN-NISA---Petitioner

Versus

MOHAMMAD ESSA and 2 others---Respondents

Writ Petition No.73 of 2016, decided on 29th October, 2018.

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

----S. 12 (2)---Limitation Act (IX of 1908), Art. 181---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plea of fraud and mis-representation---Decree, setting aside of---Limitation---Petitioner filed application for setting aside of decree which was dismissed being time barred---Validity---Application for setting aside of decree could be filed within a period of three years---Present application had been filed after lapse of more than 38 years of passing the impugned judgment and decree---Petitioner was represented by her husband in the Trial as well as Appellate Court---Petitioner was aware of institution of the suit against her in the Trial Court---Summons issued by the Appellate Court was also served upon the petitioner---Petitioner had appeared before the Appellate Court on many occasions which was evident from the order sheet---Presumption of truth was attached to the order sheet of the Court---Impugned judgment and decree was not obtained through fraud and misrepresentation---Findings recorded by the Courts below were based on proper appreciation of evidence on record---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Writ petition was dismissed, in circumstances.

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

----S. 12 (2)---Limitation Act (IX of 1908), Art. 181---Application for setting aside of decree---Limitation---Application for setting aside of decree could be filed within a period of three years.

Manzoor Ahmed for Petitioner.

Johar Ali for Respondents.

2019 Y L R 1245

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

SULTAN ALI and 18 others---Petitioners

Versus

COLLECTOR/DEPUTY COMMISSIONER DISTRICT NAGAR and another---Respondents

Writ Petition No.117 of 2018, decided on 18th October, 2018.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to Court---Verbal refusal of Collector to refer the matter to the Referee Court---Effect---Petitioners claimed that Collector verbally returned the reference petition filed under S.18 of Land Acquisition Act, 1894 by refusing to send the same to the Referee Court---Validity---Collector had returned the reference petition without recording of the reasons and justifications, which was not permissible under law---Verbal order of Collector was set aside and writ petition was allowed.

Jahangir Shah for Petitioners.

Assistant Advocate General for Respondents.

2019 Y L R 1330

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MURSLEEN---Petitioner

Versus

Syed EHSAN SHAH---Respondent

Cr. Misc. No.199 of 2018, decided on 13th November, 2018.

Criminal Procedure Code (V of 1860)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Application for cancellation of bail, refusal of---Bail was granted to the accused on the ground of further inquiry--- Night occurrence---Petitioner/ complainant contended that bail was wrongly granted to the respondent/ accused as he was directly charged in the FIR and weapon of offence was also recovered from him---Respondent/ accused contended that his case, being a night occurrence, fell under the ambit of further inquiry---Present case was of a night occurrence which took place at 01:00 A.M and the report was lodged at 05:30 A.M. the same day---Complainant/eye-witnesses had to establish that in dark hours of night they were able to identify the accused----Trial Court had rightly extended the concession of bail to the accused considering his case as one of the further inquiry falling under S.497(2), Cr.P.C.---Different parameters existed for cancellation of bail---Court of competent jurisdiction had granted bail to the accused on the grounds of further inquiry---Complainant had failed to point out any legal infirmity in the impugned order---Application for cancellation of bail was dismissed, in circumstances.

Jehanzeb Khan for Petitioner.

Dy. Advocate General for the State.

Aneesullah Khan and Hujjatullah Khan for Respondent.

2019 Y L R 1365

[Gilgit-Baltistan Chief Court (Skardu Bench)]

Before Malik Haq Nawaz and Ali Baig, JJ

Syed NAJAF SHAH---Appellant

Versus

Haji RAZA and another---Respondents

C.F.A. No.13 of 2016, decided on 1st December, 2018.

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

----O. VI, R. 17---Amendment in plaint during pendency of appeal---Scope---Plaintiff/appellant had sought minor amendments in plaint on the basis of same cause of action---Proposed amendment did not change the nature/complexion of suit nor introduced a fresh cause of action---Proposed amendment was to help the court in arriving at just and fair conclusion---Amendment could be allowed even by the final Appellate Court---Application for amendment was allowed subject to payment of cost.

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

----O. XX, R. 16---Decree in suits for rendition of account between principal and agent---Preliminary decree---Scope---Trial Court having failed to pass preliminary decree before passing final decree as required under mandatory provision of O. XX, R. 16, C.P.C., decree was set aside and case was remanded to the Trial Court for decision afresh.

Ghulam Nabi for Appellants.

2019 Y L R 1465

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

LUBAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision 12 of 2018, decided on 2nd November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 169---Discharge of accused by police---Scope---Accused discharged by the police under S.169, Cr.P.C. on ground of insufficient evidence, was summoned by the court---Validity---Eye-witnesses had exonerated the accused/ petitioner in their statements under S.161, Cr.P.C. but had implicated the accused/petitioner in their statements recorded by the Trial Court, which was a dishonest and deliberate improvement and could not be allowed to prevail in the given circumstances of the case---Said eye-witnesses had also equally implicated/charged the present accused and co-accused persons in their statements recorded before the Trial Court---Co-accused persons had already been acquitted by the Trial Court, hence there was no probability of the present accused being convicted of any offence on the basis of available evidence---To summon the accused/petitioner to face the trial in the circumstances, would be futile exercise and abuse of process of court---In the present case, the complainant had not requested/filed any application to summon the present accused/petitioner to face the trial---Impugned order for summoning the accused/petitioner was not tenable, in circumstances .

Amajad Hussain and Tanveer along with Petitioner present.

Deputy Advocate General for Respondent.

2019 Y L R 1521

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C J andAli Baig, J

MUHAMMAD SALEEM---Petitioner

Versus

STATE through Chairman,National Accountability Bureau, Gilgit---Respondent

Writ Petition No.133 of 2018, decided on 15th December, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)---Gilgit-Baltistan (Empower-ment and Self-Governance) Order 2009, Art. 71(2)---Bail, refusal of---National Accountability Bureau authorities arrested the petitioner with the charge that contract for procurement of arms and ammunition for a government department was awarded to the company of the petitioner who allegedly along with his frontman (co-accused) provided sub-standard supplies ---Petitioner contended that government department had itself purchased supplies using name of the petitioner's firm--- Validity--- Record revealed that the petitioner, confessing his guilt, had submitted application to concerned authorities of National Accountability Bureau and he had also furnished an affidavit, duly attested by the Oath Commissioner, later wherein he had also stated that he along with co-accused had provided sub-standard arms and ammunition and that said contract was awarded to him without fulfilling codal formalities---Petitioner offered to return the amount determined by NAB and had requested for plea bargain---High Court had already dismissed bail petition of co-accused (frontman of the petitioner) thus, the petitioner had not been able to make out a case for grant of bail---Petition was dismissed, in circumstances.

Sadiq Hussain for Petitioner/ Accused.

Amin Khan, Special Prosecutor NAB for the State.

2019 Y L R 1602

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

UMAR UD DIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.235 of 2018, decided on 7th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A & 341---Attempt to commit qatl-i-amd, hurt, wrongfully restraining any person---Bail, grant of---Petitioner contended that no medical certificate was issued in favour of the complainant---Validity---Petitioner was directly charged in the FIR and a knife had also been recovered from his possession on his pointation, however, the record revealed that the petitioner inflicted knife injuries on the right/left thighs of the complainant, which were not vital part of the body---Intention to kill and attraction of S. 324, P.P.C., would be determined at the time of trial after recording of some evidence---Petitioner had made out a case for the concession of bail---Bail was allowed to the petitioner, in circumstances.

Naveed Hussain for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 1715

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C J and Ali Baig, J

SHAHYAR HASSAN---Appellant

Versus

IBRAHIM SHAH---Respondent

C.F.A. No. 16 of 2017, decided on 8th November, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Limitation Act (IX of 1908), S.14---Suit for recovery of money---Condonation of delay---Scope---Respondent filed suit for recovery of money on the ground that cheque given by appellant was dishonoured because of non-availability of funds in his Bank account---Trial Court decreed the suit of respondent---Validity---Appellant had admitted in his examination in chief as well as in cross examination recorded before Trial Court that he had handed-over the cheque to the respondent---Respondent had proved his claim by adducing oral and documentary evidence---Appellant had failed to rebut the claim of the respondent as he had not adduced single oral or documentary evidence in the Trial Court---Appeal was hopelessly barred by time and appellant had not filed application for condonation of delay---Decree was passed by Trial Court on 27-11-2015 and certified copy of judgment was delivered to the appellant on 13-5-2016 and appeal was filed on 18-4-2017---Judgment and decree passed by Trial Court did not call for interference---Appeal being devoid of merit and force was accordingly dismissed.

Yousuf Jamal for Appellant.

Manzoor Ahmed and Faisal Ahmed for Respondent.

2019 Y L R 1800

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

Syed MIR SHAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.45 43, 44 and 51 of 2016, decided on 10th December, 2018.

(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---Sentence, reduction in---Accused were charged for committing murder of the deceased and also firing on complainant party with intention to kill them---Motive behind the occurrence was illicit relations of deceased with the lady of the accused family---Complainant had stated that the accused opened fire and murdered the deceased---Complainant and other two witnesses though related to the deceased but their statements were quite in line to each other---Prosecution had produced an independent witness and no malice had been attributed to him for deposing against the accused persons---Almost all the prosecution witnesses were unanimous that both the accused persons were united in common intention and committed the murder of the deceased after a pre-concert---Witnesses had stated that both the accused persons were present at the place of occurrence and came there in a car, which was later on taken into custody during investigation on the pointation of co-accused---Some discrepancies were noticed in the site plan but those were because of lack of professional skill of the Investigating Officer of the case---Complainant could not be penalized for any act of Investigating Officer---Evidence of Medical Officer, who conducted post-mortem on the dead body of the deceased, was quite in line with the ocular evidence---Injuries mentioned in inquest report coincided with the injuries mentioned in post-mortem---Complainant was not eye-witness of the occurrence, therefore, any omission in the FIR would not damage the case of prosecution---Presence of the independent witness had not been seriously challenged by the defence---Statements of witnesses were dent-free and natural---Minor discrepancies owing to the lapse of time coupled with the retaining capabilities of one's mind and the wear and tear in one's faculties for one reason or the other might have their way into the statement of witnesses---Motive in the present case was established and it had not been challenged by the defence in any manner---Eye-witnesses although related the deceased but had no previous ill will, motive or animosity to involve both the accused for commission of offence and their presence at the place of occurrence had gone unchallenged---Promptitude in lodging FIR, could not be disputed---Circumstances established that the prosecution had successfully brought home the guilt of both the accused by producing cogent, convincing, straight forward and reliable evidence, coupled with the supportive evidence---Imprisonment for life awarded to co-accused was justified, however the sentence of death awarded to accused was on harsher side---Death penalty of accused was converted into lesser penalty of life imprisonment, in circumstances---Appeal was dismissed, except modification of sentence of accused.

1968 SCMR 161; 2000 YLR 1542; 2003 MLD 1196; 2009 MLD 49; 2005 MLD 830; 2011 PCr.LJ 470; 2013 YLR 241; 2017 MLD 539; 2003 PCr.LJ 106; 2005 PCr.LJ 1606; PLD 2006 Pesh. 45; PLD 2006 SC 109; 2006 PCr.LJ 174; 2008 PCr.LJ 41; 2008 PCr.LJ 881; 2009 SCMR 99; 2009 YLR 234 and 2014 PCr.LJ 885 ref.

1995 PCr.LJ 313; 1998 PCr.LJ 114 and 2014 PCr.LJ 885 rel.

(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---Site plan---Evidentiary value---Site plan was not a substantive piece of evidence, and could not be given preference over straight forward, natural and convincing evidence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and other articles from accused---Reliance---Scope---Record showed that 9-MM pistol was recovered from the accused and 30-bore pistol was recovered from the co-accused---Five empties of 9-MM and five crime empties of 30-bore pistols were taken into possession, which were later on sent to the Forensic Expert for comparison and a positive report had been received therefrom---Chemical Examination Report regarding the blood-stained earth and blood stained shirt of the deceased was also positive, as all the said articles had been found stained with human blood---Car used in commission of offence was taken into possession by the Investigating Officer of the case on the pointation of accused---Recovery in question supported the prosecution case.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Common intention--- Scope--- When offence was committed in furtherance of common intention, it became wholly immaterial as to who caused the injuries and who did not---All the participants of the occurrence were considered equally liable for the same punishment as could be awarded to the accused who caused the fatal injuries.

2008 YLR 580; 2011 MLD 1636 and 2005 PCr.LJ 1384 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Scope---Conviction on ocular testimony--- Scope--- Ocular evidence, inherent by truthful and credible, could satisfactorily form basis of conviction without asking or looking for any corroboration in the shape of recoveries, expert reports or medical evidence as all those were only supportive in nature.

Asadullah Khan for Appellants.

Dy. Advocate General for the State.

Imtiaz Hussain for the Complainant.

2019 Y L R 1876

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ABDULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 46 of 2019, decided on 19th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 40---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of charas weighing four Kilograms--- Bail, grant of--- Further inquiry---Scope---Police got recovered charas from accused who disclosed that he had bought the same from the petitioner---First Information Report was lodged promptly---Petitioner was not nominated in the FIR and was involved in the offence on the disclosure of the accused from whom the recovery was effected---Question as to whether identification of charas by petitioner, while in police custody, falls within the purview of Art. 40 , Qanun-e-Shahadat, 1984 or not, would be determined by the Trial Court after recording of evidence---Extent of involvement of the petitioner in the crime would be determined by the Trial Court---Such legal as well as factual question had brought the case of the petitioner within the purview of further inquiry as envisaged under S.497(2), Cr.P.C---Bail could not be refused as a measure of advance punishment--- Petitioner was admitted to bail, in circumstances.

Shafqat Wali and Saadatullah for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 1903

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C J and Ali Baig, J

EHSANULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 6, 7 and Murder Reference No. 3 of 2017, decided on 15th November, 2018.

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

----Ss. 302, 427 & 34---Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism---Appreciation of evidence---Confessional statement---Scope---Prosecution case was that some unknown terrorists murdered the deceased and his vehicle was found in damaged condition along with his dead body---Killing of the deceased was a result of "terrorism"---Record showed that senior police officer had recorded the confessional statement of accused persons---Said confessional statements of the accused persons transpired that the same were voluntary, which were corroborated by recovery of weapons of offence, autopsy report, report of arms expert and their extra judicial confessional statements---Senior police officer had appeared as witness, who recorded confessional statements of the accused after fulfilling codal and legal formalities, and his statement could not be shattered by defence in his cross-examination---Medico legal report of the deceased supported the prosecution version---Circumstances established that prosecution had succeeded to prove its case beyond any shadow of doubt against the accused and his co-accused, so far as the other co-accused was concerned, no overt act of effective firing was attributed to him by the prosecution witnesses in their statements and neither any weapon of offence nor any other incriminating material had been recovered from his possession nor on his pointation---Appeal against accused and co-accused was dismissed, in circumstances while other co-accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 427 & 34---Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism---Prosecution case was that some unknown terrorists murdered the deceased and his vehicle was found in damaged condition along with his dead body---Appreciation of evidence---Recovery of weapons of offence from accused and empty shells---Reliance---Scope---Record showed that one .30-bore pistol/weapon of offence was recovered by police on the pointation of the accused in presence of marginal witnesses---Another 30-bore pistol was recovered by police on the pointation of co-accused in presence of marginal witnesses---Police had recovered one empty shell and one pellet of .30-bore pistol from the damaged vehicle of the deceased in presence of witnesses---Police had also recovered one empty shell of .30-bore pistol from the place of occurrence---Record transpired that weapons of offence, empty shells and sika goli of .30-bore pistols were sent by the prosecution to National Forensic Science Arms for analysis and expert opinion---Report of expert being positive supported the prosecution version.

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

----Ss. 302, 427 & 34---Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism---Appreciation of evidence---Extra judicial confession of accused---Scope---Record showed that accused had confessed his guilt before a prosecution witness, which was narrated by the said witness in his statement recorded before the Trial Court---Said witness was an independent and reliable witness and had faithfully deposed what was told to him by accused.

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

----Ss. 164 & 364---Extra-judicial confession---Scope---Conviction could be based on extra-judicial confession of the accused if duly corroborated by medical evidence and Chemical Expert report.

Sheraz Tofail v. The State 2007 SCMR SD 483 rel.

(e) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence connecting the accused with the offence without any reasonable doubt, could form basis for awarding capital punishment.

1998 SCMR 2669 and 2007 SCMR 518 rel.

Jehanzeb Khan for Appellants.

Dy. Advocate General for the State.

Shaukat Ali for the Complainant.

2019 Y L R 1967

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

NASIR AKHTAR---Appellant

Versus

SHER ALAM---Respondent

C.S.A. No. 1 of 2018, decided on 31st October, 2018.

(a) Gilgit Baltistan Rented Premises Act (VI of 2010)---

----S. 13---Ejectment petition---Personal bona fide need of landlord---Availability of alternate land---Scope---Landlord filed ejectment petition claiming that rented premises was required for use and occupation of his son as he was jobless---Rent Controller dismissed the ejectment petition---Appellate Court allowed the appeal and directed the tenant to vacate the rented premises--- Validity--- Landlord was required to produce either oral or documentary evidence to substantiate his claim--- Landlord failed to prove his claim/plea taken in the ejectment petition and had simply recorded his own statement before Rent Controller, hence his case was without evidence---Onus to prove his personal bona fide need was on the landlord--- Landlord had to prove his case on its own strength by producing cogent evidence and had no right to claim that his suit might be decreed on the weakness of opposite party in the suit---Landlord had, in addition to the disputed shop, two other shops adjacent to it and another shop had already been vacated by the tenant during pendency of litigation---Landlord could establish business of his son in the aforesaid vacated shop---Judgment and decree passed by Appellate Court was set aside and that of Rent Controller was restored---Appeal was allowed, in circumstances.

(b) Administration of justice---

----Party has to prove his case on its own strength/footing by producing cogent evidence and has no right to claim that his suit may be decreed on the weakness of opposite party/defendant in the suit.

2004 CLC 1847 fol.

Muhammad Jan for Appellant.

Raja Shakeel Ahmed for Respondent.

2019 Y L R 2141

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AMAN ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 36 of 2019, decided on 9th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 114---Qatl-i-amd, abetment, abettor present when offence committed---Bail, refusal of---Second bail petition was moved after dismissal of earlier one by the same court---Maintainability---Fresh ground to move second bail petition---Scope---Second bail petition would only be on the ground which was not available when the first bail application was filed---Contention that if a law point was not raised/decided by the Court the second bail application would be maintainable, was repelled---No fresh ground had been raised in the second petition---Earlier bail petition was declined on merits and all the grounds taken /argued were not considered in favour of the petitioner---Second petition being meritless, bail was refused to the petitioner, in circumstances.

PLD 1986 SC 173 and 2016 PCr.LJ 1906 ref.

Amjad Hussain for Petitioner.

Deputy Advocate General for the State.

2019 Y L R 2281

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and

Ali Baig, JJ

The STATE---Appellant

Versus

RAJ DAD and 2 others---Respondents

Criminal Appeal No.37 of 2018, decided on 1st April, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Accused were charged for committing murder of son of the complainant by strangulating and causing injures with sharp-edged weapons and stones---Record transpired that respondents/ accused were not nominated in the FIR and FIR was lodged against some unknown persons---Names of last seen evidence/witnesses had also not been disclosed in the FIR and admittedly it was an unseen occurrence---Even dead body of the deceased was also not recovered on the pointation of the respondents/accused---Motive behind the occurrence was also not mentioned in the FIR---Witnesses had stated in their statements recorded before the trial court that on 15-8-2016 they along with deceased had gone to attend a marriage ceremony; at about 12/01 a.m deceased left/departed along with the respondents/ accused---On inquiry, the accused/ respondents replied that they were going to Government School for a musical party---Next morning, the accused/ respondents returned to home but the deceased did not return---On 17-8-2016, the dead body of deceased was found near a mosque---Allegedly, accused was interested to marry the wife of the deceased---Accused first made attempts to compel the deceased to divorce his wife but when the deceased declined to do so, he committed his murder---Motive surfaced in belated statements of the witnesses, recorded under S. 161, Cr.P.C.---Statements of witnesses showed that the deceased was lastly seen alive in the company of the respondents/ accused while leaving the marriage ceremony and many other people might be present there---Neither any impartial person had seen the deceased nor heard about him---Except recovery of some stones from the place of occurrence on the pointation of accused/respondents, there was no other independent piece of evidence which provided corroboration to the case of the prosecution---Circumstances established that complainant had failed to point out any illegality or irregularity in the impugned judgment of trial court and misreading and non-reading of evidence of prosecution---Appeal against acquittal being devoid of any merit was dismissed accordingly.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, common intention---Appreciation of evidence---Delay in recording the statement of witnesses under S. 161, Cr.P.C.---Effect---Witnesses, in the present case, who had allegedly seen the deceased in the company of the respondents prior to the occurrence, were closely related to the deceased---Record showed that statements of witnesses under S. 161, Cr.P.C. were recorded by police after lapse of ten days of the occurrence---Prosecution had also failed to explain the inordinate delay in recording the statements of said last seen witnesses/evidence---Delay in recording of statement of said witnesses created serious doubt regarding the genuineness of their statements which was fatal to prosecution's case.

(c) Criminal trial---

----Last seen evidence---Scope---Evidence of last seen was always regarded as a weak type of evidence---Such evidence was not sufficient to award conviction in a capital charge---In order to award conviction of a person on the basis of last seen evidence, the prosecution was required to produce some other independent piece of evidence which might have provided sufficient corroboration---In the absence of such corroboration, it was not considered safe to award conviction solely on the basis of last seen evidence.

2008 SCMR 1103 and 2018 PCr.LJ 310 rel.

Dy. Advocate General for the State.

Sher Alam for Respondents.

Muzaffar-ud-Din for the Complainant.

Date of hearing: 18th March, 2019.

2019 Y L R 2354

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SECRETARY, FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD and another---Petitioners

Versus

SURIYA BANO---Respondent

Civil Revision No. 76 of 2018, decided on 23rd February, 2019.

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

----S. 42---Suit for declaration---Correction of date of birth---Scope---Plaintiff filed suit for correction of her date of birth in her matriculation certificate---Trial Court and appellate court concurrently decreed the suit---Validity---Plaintiff had produced her school leaving certificate, salary slip/service record, copy of Computerized National Identity Card, copy of Family Registration Certificate and copy of Birth Registration certificate---Said documents were corroborated by four reliable witnesses in their statements recorded by Trial Court, whereas defendants failed to produce a single oral or documentary evidence in the Trial Court to rebut/ controvert the averments of plaint except the statement of their representative---Concurrent findings rendered by appellate court and Trial Court, being unexceptional, were not interfered by Chief Court through its revisional jurisdiction---Revision petition was dismissed.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Period of limitation for filing of suit for declaration is regulated by Art. 120, Limitation Act, 1908, which prescribes six years period commencing from the time when the right to sue accrues.

PLD 1988 Lah. 658 ref.

Manzoor Hussain for Petitioners.

Faqir Shakir for Respondent.

Date of hearing: 20th February, 2019.

2019 Y L R 2413

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

HADI HUSSAIN and 7 others---Petitioners

Versus

OFFICER COMMANDING 703 PAK WORKS SECTION and 3 others---Respondents

Civil Revision No.15 of 2018, decided on 23rd April, 2019.

Civil Procedure Code (V of 1908)--

----O. XX, R. 16---Suit for rendition of accounts---Contractual relationship---Scope---Suit for rendition of accounts can only be filed against defendant where there exists any fiduciary relationship between the parties like partners of firm, guardian and ward, principal and agent, trustee and beneficiary of the trust---Where the relationship between the parties is contractual, the defendant cannot be obligated to render the accounts to the plaintiff.

Messrs Friend Engineer Corporation Lahore v. Government of Punjab and 4 others 1991 SCMR 2324 and Town Committee Joharabad v. Falak Sher 2003 CLC 71 ref.

Ghulam Nabi for Petitioners.

Sharif Ahmed for Respondents.

Date of hearing: 19th April, 2019.

2019 Y L R 2445

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD ISMAIL---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Revision No. 28 of 2018, decided on 4th March, 2019.

Penal Code (XLV of 1860)---

----S.302---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, terrorism Diyat, payment of, to the victims of terrorism--- Petitioner sought implementation of order passed by Trial Court, upheld by Supreme Appellate Court, whereby it had directed the State to pay diyat amount to the legal heirs of victims---Trial Court dismissed the petition on the ground that as a uniform policy Provincial Government had paid Rs. 3,00,000 as compensation to the legal heirs of all the families who were victims of violence and terrorism and lost their lives---Validity---Case was not untraced one---One accused had stood trial and was acquitted--- Provincial Government having paid a sum of Rs. 3,00,000 each to the legal heirs of all the families, whose nears and dears had lost their lives in the violence of terrorism---Petition was dismissed.

Ali Nawab for Petitioner.

Dy. Advocate General for the State.

Date of hearing: 25th February, 2019.

2019 Y L R 2467

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

IQBAL AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.13 of 2019, decided on 4th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code ( XLV of 1860 ), Ss. 420 & 489-F---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque---Pre-arrest bail, refusal of---Huge amount was involved---Effect---Petitioner had not denied the issuance of the cheque which after presentation was bounced by the Bank due to insufficient balance---Petitioner instead of compensating the complainant, extended threats to the complainant which act could not be seen in good taste---Ad-interim pre-arrest bail already granted to the petitioner was recalled, in circumstances.

Wajid Ullah Baig v. The State 2017 PCr.LJ 1189 ref.

Hamid Ali for Petitioner.

Dy. Advocate General for the State.

Date of hearing: 4th February, 2019.

2019 Y L R 2507

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NAVEDD-UL-LAIL----Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 92 of 2019, decided on 25th April, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 561-A, 249-A & 265-K---Ex-officio Justice of Peace---Alternate remedy---Opportunity of hearing to earmarked accused---Inherent powers of Chief Court---Scope---Petitioner sought quashing of FIR lodged on the order of Ex-officio Justice of Peace---Plea of petitioner was that Ex-officio Justice of Peace had ordered for registration of FIR without providing him an opportunity of hearing---Validity---Held; hearing of an earmarked accused was not mandatory, while passing a judgment/order under S.22-A, Cr.P.C.---Petitioner had an alternate remedy of filing an application under S. 249-A or 265-K, Cr.P.C.---Powers conferred on Chief Court under S. 561-A, Cr.P.C. were neither additional nor alternate---Said power was sparingly exercised in very rare and exceptional circumstances---Petitioner having failed to make out a case for exercise of inherent powers in his favour, petition was dismissed.

Imran Hussain for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 2694

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ISRAR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 73 of 2019, decided on 22nd March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 420 & 489-F---Cheating, dishonouring of cheque due to lack of funds---Inherent powers of Chief Court under S.561-A, Cr.P.C.---Quashing of FIR---Scope--- Malicious attempt on the part of complainant---Effect---Allegation against the petitioner was that he issued a cheque which, on presentation, was dishonored due to insufficient balance---Validity---Record revealed that complainant had already lodged FIR against another person/accused on the same allegation---Said FIR was quashed by the Chief Court ---Same complainant had lodged the present FIR against present petitioner, with a little variation in the contents of previous FIR, which seemed to be a malicious attempt on the part of the complainant---Complainant made a second attempt to tease the petitioner, when earlier FIR almost on the same allegation was already quashed by the Chief Court---Chief Court ordered quashing of impugned FIR---Application was allowed accordingly.

MLD 2019 287 ref.

Muzafar-ud-Din for Petitioner.

Dy. Advocate General for the State.

2019 Y L R 2814

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHAH KHAN---Petitioner

Versus

JAVED IQBAL and 2 others---Respondents

Criminal Miscellaneous No. 101 of 2019, decided on 7th May, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Exercise of jurisdiction by Ex-Officio Justice of Peace to order registration of case---Requirements---Duty of SHO---Scope---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace who dismissed his application for registration of case on the ground that the occurrence took place in a thickly populated area but no eye witness had been cited in the application submitted to the SHO---Validity---Section 154, Cr.P.C. suggested that the discretion for lodging of FIR did not lie with the SHO---Station House Officer had to see tentatively whether a cognizable offence was made out or not---Section 154, Cr.P.C. made it obligatory for a police officer of a police station that every information relating to commission of cognizable offence, if given orally or in writing, he would reduce the same into FIR---Refusal of police to register a case was a violation of S.154, Cr.P.C.---Impugned order of Ex-Officio Justice of Peace fell out of the purview his jurisdiction which was only to see whether from the plain reading of the application of the complainant a cognizable offence was made out or not---Ex-Officio Justice of Peace was bound under the law to order registration of FIR when a cognizable offence was made out---Chief Court directed the police to register case on the basis of complaint filed by petitioner---Application of petitioner was allowed accordingly.

Muhammad Akram Baig for Petitioner.

Dy. Advocate General for the State.

Arif Nazir for Respondents.

2019 Y L R 2888

[Gilgit-Baltistan Chief Court]

Before Wazir Sakeel Ahmad, C.J. and Ali Baig, J

ABDUR REHMAN alias WAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 36 of 2017, decided on 14th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 412 & 265K---Power of Trial Court to acquit accused at any stage of trial--- Appeal--- Conviction on the admission of accused--- Estoppel---Scope---Appellant assailed order of Anti-Terrorism Court whereby he was convicted---Record transpired that by taking lenient view lesser punishment of imprisonment, which the appellant had already undergone, was awarded by the Trial Court---Trial Court had already allowed the application of appellant but after taking relief from Trial Court appellant had filed appeal by concealing the fact that lesser punishment was awarded at his own request---Appellant was estopped by his conduct and admission to file the appeal---Criminal appeal, being not maintainable, was dismissed.

Tanveer Akhtar for Appellant.

Deputy Advocate General for Respondent.

2019 Y L R 233

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J

MUHAMMAD ANSAR and another---Appellants

versus

GENERAL MANAGER, MIAN MUHAMMAD SUGAR MILL LIMITED and 19 others---Respondents

Civil Appeal No.135 of 2017, decided on 19th September, 2018.

Civil Procedure Code (V of 1908)---

----O.VII, Rr. 2 & 11 (b) & (c) & S. 149---Money Suit---Plaint, rejection of---Memorandum of appeal---Failure to make-up deficiency of court-fee---Appellants were directed to make up deficiency of court-fee within ten days but needful was not done---Application for extension of time after passing of ten days fixed by the Court was moved by the appellants---Plea of appellants was that due to misunderstanding of order needful could not be done---Validity---Neither appellants supplied deficiency of court-fee within ten days nor moved any application for extension of time within said period---Section 149 of Civil Procedure Code, 1908 would apply to a case in which whole of the court-fee was unpaid apart from a case in which only a part of the fee was unpaid---Section 149, C.P.C. conferred discretionary powers which was exercisable at any stage---Plaint was not to be rejected unless at least one opportunity was provided to the defaulting party by fixing a time for compliance of the order---Section 149 & O.VII, R. 11, C.P.C. had to be read together and must be given effect to accordingly---Said two provisions could not be considered mutually destructive---Section 149, C.P.C. was a general provision which would apply to all categories of cases but clauses (b) & (c) of O.VII, R. 11, C.P.C. only dealt with two given situations: If case did not fall in any of the categories i.e. (b) or (c) of O. VII, R. 11, C.P.C. then power of the Court would be discretionary---Appellants had not complied with the order of the Court in the present case---No plausible reason had been extended in the application for non-supply of deficiency of court-fee---Appellants were guilty of contumacy and mala fide in putting deficient court-fee alongwith memorandum of appeal---Appellants had earlier filed suit of similar nature for the same relief which was withdrawn---Present suit had been filed after twelve years which was barred by limitation---Appellant had no case even on merits---Application for extension of time to supply deficiency of court-fee was rejected---Appeal was dismissed in circumstances.

Executive Engineer, Building Division, Mirpur and 4 others v. Raja Muhammad Nawaz Khan and Co. of Pran District Gujrat PLD 1994 SC (AJ&K) 32; Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42 and Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005 ref.

Gul Hasan and another v. Azad Government and 3 others 2003 SCR 221; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Khalifa Abdul Ghani v. Amir Hamza and 7 others 1998 CLC 1851 rel.

Khuram Saif Ali for Appellants.

Nemo for Respondents Nos.1 to 3, 5, 7, 10 and 12 to 20.

2019 Y L R 399

[High Court (AJ&K)]

Before Raza Ali Khan, J

ABDUL HAMEED and 3 others---Petitioners

Versus

ABDU QAYYUM BUTT and 2 others---Respondents

Writ Petition No.905 of 2018, decided on 7th September, 2018.

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

----S. 44---Writ petition---Competence---Alternate remedy---Principle---Scope---Writ petition was competent where no alternate remedy was provided by law---Where statutory forum was created by law for redressal of grievance, writ petition was not to be entertained---Non-entertainment of petition under the writ jurisdiction where efficacious or alternate remedy was available was not an absolute law but rule of policy---High Court had discretion to grant relief under Art. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 despite existence of an alternate remedy---High Court declined interference where an adequate, efficacious or alternate remedy was available to a party and he had approached the High Court by invoking writ jurisdiction without availing the same High Court, however, could interfere where petitioner had made out an exceptional case warranting such interference or there were sufficient grounds available to invoke constitutional jurisdiction---High Court could exercise the writ jurisdiction in presence of alternate remedy in eventualities: firstly, enforcement of Fundamental Rights; secondly, where an order is necessary for natural justice; thirdly, where proceedings/orders challenged through writ petition were wholly without jurisdiction and lastly, where an Act or its provisions were challenged.

Ms. Romana Shabbir Malik for Petitioners.

2019 Y L R 706

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

IQBAL HUSSAIN and 6 others---Appellants

Versus

MUHAMMAD AYAZ KHAN and 13 others---Respondents

Civil Appeal No.145 of 2009, decided on 22nd November, 2018.

Land Revenue Act (XVII of 1967)---

----S. 172--- Suit for declaration and possession---Revenue record, correction of---Jurisdiction of Civil Court---Scope---Suit was dismissed on the ground that Civil Court had no powers to entertain disputes with regard to correction of entries in the revenue record---Validity---Dispute with regard to correction of revenue record did fall within the exclusive competence of revenue department---Courts below had rightly held that a civil Court had no jurisdiction to adjudicate upon with regard to the matter of correction of revenue record---Findings recorded by the Courts below were in accordance with law---Appeal was dismissed in circumstances.

2014 SCR 349; 1987 SCMR 744; 2007 SCMR 231; PLD 2002 SC 615; 2013 SCR 29; PLD 2002 SC (AJ&K) 13; PLD 1978 SC (AJ&K) 75; PLD 1993

SC (AJ&K) 4; PLD 1982 Pesh. 42; 2005 SCR 222; PLD 1995 SC (AJ&K) 41 and Sardar Khan's case 2003 SCR 77rel.

Sardar Atta Ellahi Abbasi for Appellants.

2019 Y L R 725

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J

MUBASHAR AZIZ QADRI---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others---Respondents

Writ Petition No.1216 of 2018, decided on 24th November, 2018.

Tender---

----Bid, cancellation of---Audi alteram partem, principle of---Applicability---Petitioner was declared successful bidder but same was cancelled due to violation of terms and conditions---Contention of petitioner was that respondents without affording opportunity of hearing had cancelled the bid---Validity---Petitioner participated in the bidding process and he was declared lowest bidder---Bid was approved by the competent authority---Petitioner had furnished performance guarantee within time---Cancellation of bid through impugned order was bad in law---Petitioner was not at fault for re-appropriation of funds by the department as he had completed his obligation by submitting his performance guarantee within time---Acceptance of bid could not be recalled by the authorities, in circumstances--- Authorities, after issuance of acceptance letter, could not take plea with regard to higher bid's cost---Bidder, in circumstances, was entitled to equitable relief of writ jurisdiction---Impugned order had been passed against the principles of audi alteram partem, and valuable rights had been created in favour of petitioner---Impugned order passed by the authorities was set aside having no legal effect---High Court directed the authorities to issue formal work order and execute contract forthwith in favour of petitioner by accepting his bid---Writ petition was allowed, in circumstances.

Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board for Professional Colleges and 2 others PLD 1986 (AJ&K) 112; Sub. Faqirullah Khan v. Muhammad Arif and another PLD 1985 (AJ&K) 1; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Mst. Rasheedan Bibi and others v. Abdul Razzaq 2018 MLD 19 ref.

Paragon Construction (Pvt.) Ltd. through Attorney and 2 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others 2011 CLC 469 rel.

Barrister Humayun Nawaz Khan for Petitioner.

2019 Y L R 1043

[High Court (AJ&K)]

Before Khalid Yousaf Chaudhary and Raja Sajjad Ahmad Khan, JJ

AQEEL MAROOF---Appellant

Versus

The STATE through S.H.O. Police Station and another---Respondents

Criminal Appeal No.20 of 2018, decided on 24th December, 2018.

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

----S. 497---Bail---Principle---Tentative assessment of the record was to be taken into consideration at bail stage---Deeper scrutiny of the evidence was neither permissible nor desirable---Whether accused was prima facie connected with the commission of offence or not was to be seen only---Court while deciding bail application had to look into the FIR, statement of witnesses recorded under S. 161, Cr.P.C. and other incriminating material brought by the prosecution including the recoveries, etc.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b), 9(c) & 32---Possession of narcotic drug---Confiscation of articles connected with narcotics---Bail, grant of---Borderline case---Further inquiry---Non-availability of Chemical Examination Report---Effect---Accused was charged for possession of 1120 grams of charas---Fifty grams of charas was sent for chemical examination but report had not been brought on record---Quantity of charas marginally exceeded the limit between 900 grams to 1500 grams---Case being a borderline case between cls. (b) & (c) of S. 9, Control of Narcotic Substances Act, 1997, therefore, further inquiry was required to determine the guilt of accused---Challan had been submitted but independent evidence to connect the accused with the guilt had not been collected---Accused was ordered to be enlarged on bail.

Ayyaz v. State 2011 PCr.LJ 177 rel.

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

----S. 51---"No bail to be granted in respect of certain offences" occurring in S.51---Control of Narcotic Substances Act, 1997---Scope---Court could grant bail in cases where it considered that the case was fit for grant of bail after taking into consideration the overall facts and circumstances of the case despite the bar contained in S. 51, Control of Narcotic Substances Act, 1997.

Kh. Haq Nawaz Butt for Appellant.

Sardar Mazhar Iqbal, AAG for the State.

2019 Y L R 1310

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, J

MUMTAZ KHAN and 13 others---Appellants

Versus

MUHAMMAD ANWAR KHAN and 4 others---Respondents

Civil Appeal No.501 of 2009, decided on 30th January, 2019.

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

----Arts. 79 & 17---Registration Act (XVI of 1908), S. 17---"Will"---Proof of---Procedure---Unregistered document---Effect---Contention of plaintiffs was that will deed in favour of defendants was based on fraud---Suit was dismissed concurrently---Validity---"Will" in question could be proved only by producing two attesting witnesses of the same---No licence having been issued in favour of the Notary Public, he was not authorized for attestation of will-deed in question---Once it was found that will deed was doubtful, the entire edifice built thereon would fall to the ground---Will-deed in question was unregistered document---"Will" whereby interest in any immovable property valuing more than Rs. 100/- was sought to be created should be registered compulsorily and if it was unregistered, same was to be ignored---If such "Will" was held to be validly executed it would not operate to create any right or interest in favour of defendants being unregistered---If fraud was alleged against an instrument, beneficiary of the same had to prove its genuineness and in case he had proved the same then person so alleging had to refute the same---Authenticity of "Will" in question had not been proved by the defendants by producing satisfactory evidence---Admissibility of document was one thing and genuineness thereof was another---Admissibility of document would not mean that contents of the same had also been accepted by the Court as genuine---Author of will-deed had died and defendants were bound to prove the same by producing the witnesses in whose presence "will" was executed and signed by its author---Neither statements of author of disputed document nor its marginal witness had been recorded---Findings recorded by the Courts below were based on conjectures and surmises which were not sustainable---"Will" in favour of defendants was void ab initio, false and fabricated---Impugned judgments and decrees passed by the Courts below were recalled and suit was decreed---Second appeal was allowed, in circumstances.

PLD 1973 Pesh. 63; PLD 2003 SC 31; PLD 1984 SC(AJ&K) 138; 1987 CLC 798; PLD 1997 Lah. 267; Ghulam Nabi's case 1993 CLC 314; Abdul Waheed Butt v. Excise and Taxation Officer and 3 others 2003 SCR 298; AIR 2013 SC 3568; Habibullah v. Mahmood 1984 PSC 29 and PLD 1964 SC 97 rel.

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

----S. 12(2)---Decree obtained through fraud---Effect---Judgment or decree obtained by practicing fraud to the Court is a nullity in the eye of law and such a judgment/decree by first Court or highest Court has to be treated as nullity---Judgment or decree obtained by fraud cannot be said a judgment or order in law.

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

----S. 100---Second appeal---Concurrent findings--- Interference--- Scope---Concurrent findings of fact cannot be disturbed in second appeal, unless gorunds enumerated under S.100, C.P.C. are attracted.

PLD 1981 AJ&K 54 rel.

(d) Administration of justice---

----When foundation of a case was illegal, superstructure built over the same could not be declared to be legal.

1989 CLC 198 rel.

(e) Pleadings---

----Relief which was not part of pleadings could not be granted by the Court.

2003 YLR 1810 rel.

(f) Maxim---

----"Fraus et jus nun quam cohabitant"--Connotation---Fraud and justice never dwell together.

Muhammad Yaqoob Khan Mughal for Appellants.

2019 Y L R 1340

[High Court AJ&K)]

Before M. Tabassum Aftab Alvi, C.J., Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ

BABER SHAH and others---Appellant

Versus

The STATE through Advocate General Azad Jammu and Kashmir, Muzaffarabad---Respondent

Criminal Appeals Nos.24 and 28 of 2018, decided on 23rd January, 2019.

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

----Ss. 9(b), 9(c) & 51---Criminal Procedure Code (V of 1898), Ss. 496 & 497---Possessing and trafficking of narcotics---Prohibition on grant of bail---Phrase "fit case for grant of bail"---Bail, refusal of---Accused persons were charged for possessing and selling of 1140 and 1120 grams of 'charas' respectively---Plea of the accused persons was that their case fell within the borderline of subsection (b) & (c) of S. 9 of Control of Narcotic Substances Act, 1997---Validity---'Charas' recovered from accused persons exceeded one kilogram---Control of Narcotic Substances Act,1997 had enshrined the figure upto one kilogram, which could not be twisted by a court of law---According to S.51, Control of Narcotic Substances Act, 1997 no bail could be granted in respect of offences committed under Control of Narcotic Substances Act, 1997 and provisions of Ss. 496 & 497, Cr.P.C. had been excluded---Elbow room was, however, left at the discretion of the court under subsection (2) of S.51, Control of Narcotic Substances Act, 1997 where statute had laid down that bail should not normally be granted unless court was of the opinion that case was fit for grant of bail---Words "fit case for grant of bail" used in Control of Narcotic Substances Act, 1997 depended on facts of an individual case and required circumstances favourable to accused---Grant of bail was refused.

2016 PCr.LJ 1718; 2014 PCr.LJ 427; PLD 2015 SC (AJ&K) 31; 2013 MLD 1435; 2013 PCr.LJ 1782; 2012 MLD 1032; 2011 PCr.LJ 177; 2009 YLR 246; 2009 PCr.LJ 558 and 2007 SCR 73 distinguished.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 4 & 5---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Possessing and trafficking of narcotics---Bail, refusal of---Delay in dispatch of sample for test or analysis---Directory provision---Accused persons were charged for possession and selling of 'charas'---Plea of accused persons was that recovered contraband was not sent for chemical examination on the day it was recovered---Validity---Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 did not place any bar on investigating officer to send samples beyond seventy two hours of seizure of substance---Such rules were directory and not mandatory and could not control substantive provisions of Control of Narcotic Substances Act, 1997---Rules were to be applied in such a manner that their operation did not frustrate the purpose of Control of Narcotic Substances Act, 1997---Failure to follow said rules did not render seizure of the alleged substance as absolute nullity---Bail was declined.

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

----S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence was not permissible at bail stage, rather a tentative assessment of the same had to be taken into consideration.

Sharafat Hussain Naqvi, Syed Mumtaz Ali Naqvi and Kh. Arshad Mahmood for Appellants.

2019 Y L R 1575

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, CJ

Mst. SHABANA KAUSAR and another---Applicants

Versus

STATION HOUSE OFFICER, POLICE STATION CITY, MUZAFFARABAD and 2 others---Respondents

Application No. 203 of 2017, decided on 15th January, 2019.

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

----S.561-A---Quashing of proceedings---Scope---Ordinarily court did not interfere in the investigation of a criminal case---If the court came to a conclusion that accused was innocent and his/her conviction was not possible, the court was duty bound to quash the criminal proceedings.

Allah Ditta and 3 others v. The State and 3 others 1995 PCr.LJ 1668 rel.

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

----S. 561-A---Azad Jammu and Kashmir Offences of Zina (Enforcement of Hudood) Act (V of 1985), Ss. 10, 16 & 19---Zina liable to tazir---Petition for quashing of FIR---Scope---Accused persons/petitioners sought quashing of FIR claiming that one accused who was adult lady, had with her free-will contracted Nikah with the male accused---Validity---Record showed that female accused had personally appeared before the court and deposed at bar that she being sui-juris contracted marriage as per her free-will and nobody had abducted her; she affirmed ingredients of Nikahnama and categorically admitted her nikah as valid---Such circumstances suggested that allegation of her abduction was baseless---Statement of a woman, in such like cases, was of vital importance to decide the controversy between the parties---Accused persons being sui juris had lawfully married each other and the offences alleged in FIR were not made out---Continuation of proceedings against the spouses, who had a suckling child would be unnecessary harassment---Petition was accepted and FIR was quashed, in circumstance.

(c) Islamic law---

----Nikah---Validity---Consent of adult sane couple was sufficient to affirm Nikah.

(d) Administration of justice---

----Each and every case had its own peculiar facts and circumstances, and was to be judged in the light of its peculiar facts.

Anees-ul-Arfeen Abbasi for Applicants.

Raja Ayyaz Ahmad, Asstt. A.G. for Respondents Nos.1 and 3.

2019 Y L R 1770

[High Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

Mst. YASMEEN FAROOQI---Appellant

Versus

MUNEER AHMED FAROOQI and 21 others---Respondents

Civil Appeal No. 86 of 2018, decided on 30th January, 2019.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42 & 54---Pakistan Rehabilitation Act (XLII of 1956) [as adapted in Azad Jammu and Kashmir], Ss. 7 &18---Evacuee property---Suit for declaration, permanent injunction and possession---Bar on jurisdiction of Civil Court---Plaint, rejection of---Scope---Plaintiff assailed mutations and sale-deeds on the ground of being executed in excess of share of vendor-defendant---Trial Court rejected the plaint on the ground that Civil Court had no jurisdiction to try and decide the controversy with regard to evacuee property---Validity---Court while deciding the controversy with regard to cause of action had to consider the averments of the plaint and relief claimed by the plaintiff---If all the averments were presumed as correct and even then the relief could not be granted or the suit was barred by any law only then plaint could be rejected summarily under O. VII, R. 11, C.P.C.---If plaintiff had made a prayer for more than one reliefs and out of multiple claims even if only one claim could be granted by the Court then plaint could not be rejected---Plaintiff in the present suit, had sought declaration for setting aside the challenged sale-deeds and mutations with the averments that same had been executed with fraud and misrepresentation---Only Civil Court had jurisdiction to set aside an illegal or void transaction and no other authority had jurisdiction to annul such sale-deeds---Relief with regard to cancellation of sale-deeds and mutations on the ground of being in excess of the share of vendor and question of impersonation was not barred by law for a Civil Court---Such questions could not be decided without recording evidence being questions of facts---Impugned order of Trial Court to that extent was not maintainable, in circumstances---Question of jurisdiction of Civil Court had wrongly been decided to the extent of alleged sale-deeds and mutations---Jurisdiction of Civil Court was barred with regard to the matters pertaining to partition of the evacuee land or ejectment of any person from the same---Rehabilitation Authorities had jurisdiction to make any partition of evacuee land which was un-partitioned and shares could also to be determined by the said Authority---When Rehabilitation Authorities were competent to make any order with regard to a particular subject then the jurisdiction of Civil Court was barred under S.18 of Pakistan Rehabilitation Act, 1956---Question of ejectment from evacuee property could not be decided by the Civil Court---Relief claimed by the plaintiff to the extent of ejectment from the evacuee land was barred by law and plaint could be rejected under O. VII, R. 11, C.P.C. to that extent---Impugned order to said extent was correct and was maintained, in circumstances---High Court observed that issue with regard to validity of impugned sale-deeds and mutations should be decided by the Civil Court after recording evidence and suit to that extent be deemed as pending---Appeal was allowed accordingly.

2018 SCR 20; 2011 CLC 490; PLD 2007 Lah. 261; 2005 SCR 97; 1997 CLC 1852; 1997 MLD 874 and 2015 SCR 929 ref.

2017 SCR 944 rel.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Court while deciding the controversy with regard to cause of action had to consider the averments of the plaint and relief claimed by the plaintiff---If all the averments were presumed as correct and even then the relief could not be granted or the suit was barred by any law only then same could be rejected summarily under O. VII, R. 11, C.P.C.---If plaintiff had made a prayer for more than one reliefs and out of multiple claims only one claim could be granted by the Court then plaint could not be rejected.

Syed Atif Mushtaq Gillani for Petitioner.

2019 Y L R 2018

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

NADEEM AFZAL---Appellant

Versus

NAZIA YASMEEN and another---Respondents

Civil Appeal No.213 of 2017, decided on 14th February, 2019.

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

----Ss. 25 & 7---Custody of minor---Welfare of minor---Private settlement regulating custody of minor---Subsequent application for custody of minor---Scope---Guardian Judge handed over the custody of minor to the mother on the basis of an agreement between the parents--- Validity--- Private settlement between the parties for the welfare of minor was always considered a relevant factor for deciding the dispute of custody of minor---Nothing had been mentioned in the agreement that minor was handed over to mother for better care or that minor would remain with the mother till his better cherishing---Guardian Judge fell in error while issuing guardian certificate in favour of the mother as the agreement was void and not enforceable under law---Minor was continuously living with the mother, getting proper education, enjoying good health and father had not alleged that mother was not looking after minor properly---Father had filed application for guardianship only due to the apprehension that mother had intended to proceed abroad along with minor and that he would be deprived of his son---Held; custody of minor once given by Court could subsequently be changed and varied in a situation when complexion of the case was changed---Mother was directed not to take the minor out from the territorial jurisdiction of the court without permission---Appeal was disposed of accordingly.

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

----Ss. 25 & 7---Custody of minor---Welfare of minor---Right of hizanat---Scope---Father is entitled to the custody of male minor of 7 years of age simply for the reason that after attaining the said age, right of hizanat lies with the father, being natural guardian under Muslim Personal Law---Mere fact that minor has attained the age of 7 years cannot be a solitary ground for disturbing the custody of son by mother---Paramount consideration is welfare of minor.

Raja Munir Ahmed Thakar for Appellant.

2019 Y L R 2746

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J and Sadaqat Hussain Raja, J

YASIN BAIG and others---Petitioners

Versus

STATE through Advocate General, AJ&K and others---Respondents

Writ Petitions Nos. 945, 1074 of 2018, decided on 14th May, 2019.

(a) Commissions of Enquiry Act (VI of 1956)---

----Ss.3 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Quashing of FIR---Criminal proceedings--- Principles---Contentions of petitioners were that FIR was lodged after delay of one month and nineteen days, registered on the recommendation of Judicial Commission, with mala fide intention just to protect the civilians involved in firing and hurling stones if contents of FIR were deemed correct then report of Commission was not true, and if report was considered correct then FIR was not sustainable---Validity---Facts as narrated by the petitioners were that the Jammu Kashmir Liberation Front (JKLF) called a long march which violated their commitment and reached in front of Line of Control (LOC)---Owing to intensive situation existed at Control Line, petitioners, being District Administration, took measures to prevent protesters in order to save their lives as well as the lives of population living around the LOC---Meanwhile, protesters became enraged and starting firing as well as pelted stones and also set on fire the check post, hence, large number of police personnel and civilians amongst protesters sustained injuries---First Informatino Report was lodged against the said incident---One injured, died after five days of the occurrence, the people of vicinity made demonstration and demanded to constitute a Judicial Commission for inquiry into the matter---Judicial Commission was constituted by the government---Said Commission submitted reports for initiating proceedings against the petitioners---On the basis of inquiry report, impugned FIR was registered against petitioners and other police personnel---Later on, government also recommended criminal as well as disciplinary proceedings against nominated officers and police personnel---Admittedly, government was empowered under S. 3 of the Commissions of Inquiry Act, 1956 to appoint Commission---Inquiry report indicated role of petitioners as well as others during the incident---Matter, therefore, needed detailed investigation---Commission report and Notification could not be quashed, in circumstances---Even otherwise, protection had been provided under S. 9 of the Commissions of Inquiry Act, 1956, in respect of the publication of any report by Commission or orders made by the Authority, which would not be challenged through suits or other legal proceedings---High Court observed that in the impugned report of the Commission, there was no valid justification to exercise writ jurisdiction, thus, petition filed for setting aside the report of the Commission and Notification merited dismissal---High Court observed that in order to consider the question of quashing a criminal proceedings at the preliminary stage when the evidence was yet to come, the court had to take the allegations against the accused at their face value and accept the same in their entirety and then see if they did not constitute any offence for which prosecution was warranted---Court in its limited jurisdiction 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 an accused depended on the totality of the facts and circumstances revealed during the trial---Writ petition to quash the impugned FIR, in circumstances.

The Eastern Construction Company v. Azad Jammu and Kashmir Government and others 2013 YLR 1605 ref.

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

----S. 561-A---Quashing of FIR---Scope---First Information Report could not be quashed when facts enlisted in it needed detailed investigation.

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

----S. 561-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Quashing of FIR---Scope---High Court in exercise of writ jurisdiction was not competent to assume role of investigating agency or to give verdict as to whether an accused had committed an offence or not.

Khadim Hussain v. Abdul Basit and 6 others 2002 MLD 1250 rel.

Sardar M.R. Khan for Petitioners (in Writ Petition No.945 of 2018).

Ch. Shoukat Aziz for Petitioner (in Writ Petition No.1074 of 2018).

Raja Ayyaz Ahmed, Assistant Advocate General for Official Respondents Nos. 1 to 5 (in Writ Petition No.945 of 2018) and for Respondents (in Writ Petition No.1074 of 2018).

2019 Y L R 2792

High Court (AJ&K)

[Shariat Appellate Bench]

Before Raza Ali Khan, J

TASEEN KOUSAR and others---Appellants

Versus

SHAHZEB NAWAZ and others---Respondents

Family Appeals Nos. 33, 34, 38 and 39 of 2019, decided on 10th May, 2019.

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

----Ss. 25 & 17---Custody of minor---Welfare of minor---Prime consideration to decide custody of minor was his/her betterment not the wishes of contesting parties---Father of minors, in the present case, had contracted second marriage and his second wife had two daughters from her earlier husband---Mother of minors had not contracted second marriage---Minors were living with their father-petitioner since desertion of spouses but mother-respondent had made efforts for their custody---Mother had natural love and affection for her children and a daughter required her company and association for preparing her to shoulder responsibilities in future---Mother had preferential rights of custody of minor children over father till she remarried---Mother would not be entitled for custody of minor if she was not a lady of good character or atmosphere of her house was unfair for the welfare of minor---Mother could not be deprived of the custody of minors mere on the allegation of opposite party that the atmosphere of her house was not good---Respondent-mother was a lady of good character---Father was a natural guardian of his minor children but Court had to satisfy while appointing father as a guardian that welfare of minor was with him---Minors, in the present case, were living with aunt who could not be preferred over real mother while deciding their custody---Petitioner-father was a careless person and in his absence minors would be at the mercy of their step-mother---Good treatment towards minors could not be expected from a step-mother---Welfare of minors in the present case was with their mother, in circumstances---Father could be deprived of the custody of minor where he did not have means to maintain and provide the healthy bringing up to his children or he deliberately omitted to meet his obligation or his character was dubious and he was involved in unlawful activities and had remarried---Mother was appointed as guardian of minors by the High Court subject to furnishing surety bonds for each minor in the terms that she would be responsible to the welfare of minors and would produce them whenever they were summoned by any Court of competent jurisdiction---Appeal was accepted, in circumstances.

Irshad Begum's case 2003 YLR 3245; Sayings of Prophet Mohammad (PBUH) by Abu Dawood (2276) and Shabana Naz v. Muhammad Saleem 2014 SCMR 343 rel.

Sikandar Raftaz for Appellant.

2019 Y L R 2867

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

MOHAMMAD SHARIF KHAN---Appellant

Versus

Raja AFRASAYAB KHAN and 22 others---Respondents

Civil Appeals Nos. 75 and 107 of 2010, decided on 14th June, 2019.

(a) Co-sharer---

----Suit for possession against co-sharer---Maintainability---Parties were co-sharers in the suit land and had a right to file partition proceedings before competent revenue officer---Decree for specific possession could not be passed against a co-sharer---Title of plaintiffs on the suit land had been established---Appeal was dismissed, in circumstances.

2010 MLD 1980; 2004 SCR 510; 2006 SCR 19 and 2016 SCR 105 ref.

(b) Evidence---

----Documentary evidence had priority over oral evidence.

Raja Imtiaz Ahmed for Appellant (in Civil Appeal No. 107 of 2010).

2019 Y L R 2883

[High Court (AJ&K)]

Before Mohammad Sheraz Kiani, J

BASHARAT HUSSAIN---Petitioner

Versus

Mst. IRUM TAHIR and 7 others---Respondents

Revision Petition No. 23 of 2017, decided on 20th March, 2019.

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

----O. VII, R. 2 & O. VIII, Rr. 1 & 10 & S. 148---Money suit---Non-filing of written statement in stipulated period---Striking off defence---Enlargement of time---Defendants did not file written statement within thirty days---Plaintiff moved application for striking off defence but same was dismissed---Validity---Period of thirty days for filing written statement had been provided but Court had discretion to enlarge the time according to circumstances of each case---Provisions of O. VIII, R. 1, C.P.C. were directory in nature and not mandatory---Time provided for filing written statement was not absolute and Court had discretion to grant more time if it was satisfied that the explanation offered by the defendant was reasonable---If Court had directed the defendant to file written statement and same was not filed within the period fixed by the Court then defence could be struck off and judgment could be passed against the defendant---Trial Court, in the present case had exercised its discretion on sufficient cause by giving defendants permission to file the written statement---Penal consequences provided in O. VIII, R. 10, C.P.C. were only available when Court had directed the defendant to file written statement by a speaking order---Simple permission by the Court and adjournment to file written statement would not be a ground to strike off the defence of defendant---Court should pass a speaking order with a direction to the defendant to file written statement and if direction was not complied with then defence should be struck off---Power to announce judgment did not imply decreeing the suit ipse dexit without calling for proof---Said power was discretionary in nature and if suit was suffering from any legal infirmity then same could not be decreed---Court could direct the plaintiff to produce evidence in support of his claim though written statement had not been filed---Court in appropriate cases could pronounce judgment at once against the defendant by striking off his defence without recording any evidence in the light of material evidence on file---No more than two adjournments were to be granted for presenting written statement---Defendant had been granted adjournments in routine without realizing the consequences---Court had power to enlarge time to do the complete justice and pass an order for the ends of justice or to prevent the abuse of the process of law---No illegality or perversity had been committed by the Court below while passing the impugned order---Revision was dismissed, in circumstances.

1997 CLC 55; 2002 PLC (C.S.) 996; 2002 SCR 476 and 2005 YLR 1041 distinguished.

2000 SCMR 1954; Sardar Sakhawatuddin and 3 others v. Mohammad Iqbal and 4 others 1987 SCMR 1365; 1990 MLD 171; 1989 CLC 1883 and 1991 CLC 1476 rel.

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

----S. 148---Enlargement of time---Requirements---Court had power to enlarge time to do the complete justice and pass an order for the ends of justice or to prevent the abuse of the process of law.

(c) Administration of justice---

----Nobody could be knocked out of the Court merely on the basis of technicalities.

Sardar Mushtaq Hussain for Petitioner.

2019 Y L R 18

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

MOHAMMAD AWAIS---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.79, 99 and Murder Reference No.4 of 2016, decided on 21st May, 2018.

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

----Ss.302(b)/109---Qatl-i-amd, abetment---Appreciation of evidence---Sentence, reduction of---No mala fide was on the part of prosecution, especially the complainant to involve accused in the case---Accused was the person who was lastly seen with the deceased, while holding pistol in his hand; when prosecution witness, who was the house-maid of the deceased, reached after hearing the fire shot---Doctor, had stated in her examination-in-Chief that injuries on the person of the deceased, were caused from approximate distance of two feet or above; which had confirmed that it was not a case of suicide as alleged by accused---Deceased lady was doing routine cooking and house-keeping on the day of incident---Deceased was neither frustrated nor depressed in any manner to commit suicide---Prosecution witness, who was house-maid, before being declared as hostile witness, had stated that deceased had a pistol in her hand, which was taken by her, but said witness had stated that at that time the deceased told that accused would kill her and she needed the pistol; whereupon the maid returned the pistol to the deceased---Such kind of statement gave an impression that the deceased was under fear of her death and therefore, she kept the pistol for her safety and protection---Injuries on the person of the deceased, had explained the conduct of accused who tortured and assaulted the deceased prior to her death; which had been corroborated by the evidence of prosecution witness (maid) though she was declared hostile, but the status of hostile witness, was not to be outrightly discarded, unless based upon lies or the witness was not truthful---Medical evidence had corroborated the entire scenario that the death of the deceased was not suicide, rather it was homicidal---Plea of defence regarding the fact of suicide by the deceased, had not been proved---Deceased was murdered with the help of 9 mm Brotha although its recovery had no legal significance, especially when same was recovered by the Investigating Officer after 11 days of the arrest of accused---Empty was recovered vide recovery memo on the day of incident---Weapon of offence and the crime empty though had been matched in the test result but it had no evidentiary value in view of the delay in sending 9 mm fire empty prior to the recovery of 9 mm pistol to the National Forensic Science Agency---Said recovery had been disbelieved having no legal worth to place reliance upon---Entire background of the case proved the chain of evidence against the accused---Motive having not been justified on record in any manner, certain circumstances of mitigation appeared on record; as the recovery was not believed and motive had not been proved---While maintaining the conviction of accused under S.302(b), P.P.C., his death sentence was converted into life imprisonment by way of Tazir---Murder Reference was answered in negative.

Muhammad Rizwan v. The State and others 2018 MLD 410; Muhammad Tufail v. The State PLD 2002 SC 786; Haji Qasim Khan v. Kabir Khan and others 2018 YLR 282; Nooro alias Noor Muhammad Sehar v. The State 2018 PCr.LJ Note 52; Muhammad Riaz's case 1996 PCr.LJ 150; Mir Muhammad's case 1972 PCr.LJ 1108; Asad Khan v. The State PLD 2017 SC 681; Nazir Ahmad v. The State 2016 SCMR 1628; Dr. Javaid Akhtar v. The State PLD 2007 SC 249; Muhammad Suleman and others v. The State PLD 2007 SC 223; Muhammad Sarfraz v. The State PLD 2013 SC 386; Niaz Ahmad v. The State PLD 2003 SC 635; Rana Muhammad Akram v. The State and others 1995 SCMR 1144; Asad Khan v. The State PLD 2017 SC 681; Nazir Ahmad v. The State 2016 SCMR 1628; Saeed Ahmad v. The State 2015 SCMR 710; Abdul Majeed v. The State 2011 SCMR 941; Afzal Hussain Shah's case 1991 PCr.LJ 113 and Muhammad Zafar v. The State PLD 2013 Lah. 178 ref.

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

----Arts. 150 & 151---Evidence of hostile witness---Principle---Evidence of hostile witness, could be ignored ordinarily, however, the principle had to be observed in the light of Art.150 of the Qanun-e-Shahadat, 1984---For impeaching the credit of witness by cross-examination, Art.151 would apply at a situation where witness was guilty of prevarication or having an animosity towards the party who called him or giving an unfavourable evidence to such party or contrary to statement expected from him, which was to be discarded by the party calling him---Said witness had to be declared hostile witness with permission of the court---Under Art.151 of Qanun-e-Shahadat, 1984, credit of witness could be impeached if by way of knowledge of the witness, the witness had been bribed or by way of inducement to give evidence; if former statement was inconsistent with any part of his evidence which was liable to be contradicted; or if the witness had been prosecuted for rape or in attempt to ravish or generally was of an immoral character.

Muhammad Arshad Tabrez and Ansar Nawaz Mirza for Appellant (in Criminal Appeal No.79 of 2016).

Ch. Zafar Ali Warraich for the Complainant (in Criminal Appeal No.79 of 2016).

Sadaqat Ali Jahangir for the State (in Criminal Appeal No.79 of 2016).

Ch. Zafar Ali Warriach for Appellant (in Criminal Appeal No.99 of 2016).

Muhammad Arshad Tabrez and Ansar Nawaz Mirza for Respondents (in Criminal Appeal No.99 of 2016).

Sadaqat Ali Jahangir for the State (in Criminal Appeal No.99 of 2016).

Sadaqat Ali Jahangir for the State (in Murder Reference No.4 of 2016).

Muhammad Arshad Tabrez and Ansar Nawaz Mirza for Respondent (in Murder Reference No.4 of 2016).

2019 Y L R 98

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

Raja KHURRAM ALI KHAN and another---Appellants

Versus

TAYYABA BIBI and another---Respondents

Criminal Appeal No.154 of 2018 and Crl.P.S.L.A. No.2 of 2018, decided on 11th June, 2018.

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

----Ss. 328-A, 337-A(i), 337-F(i), 342, 506(ii)---Cruelty to a child, causing shajjah-i-khafifah, causing damiyah, wrongful confinement, criminal intimidation---Appreciation of evidence---Sentence, enhancement of---Allegation against the accused persons was that they had ill-treated/neglected a minor girl, who was working as a domestic servant at their house---Statements of prosecution witnesses showed that the minor was employed to look after the child of the accused persons and to work in the kitchen---Minor was, thus, exposed to the hazards of the kitchen such as fire, hot surface, sharp knives, toxic chemicals---Minor was not admitted in school and thus, her right to education was also denied---Admittedly, neither was the consent of minor girl sought nor was her engagement as a domestic worker governed under a contractual arrangement agreed at arm's length---No working hours were fixed nor was she paid the minimum wage determined by the State---Girl was engaged in domestic work and her responsibilities were of a nature which had exposed her to physical and psychological harm---Girl had no freedom of action and her life and liberty were completely in the control of accused persons as long as she worked as a domestic worker---Accused persons had paid a meagre amount of Rs. 18000/- to her father---Status of minor was not different from a child who was a victim of trafficking and had to endure degrading treatment of being a virtual modern day slave---Circumstances suggested that witnesses produced by prosecution were all independent and they had no reason to depose falsely---Despite being cross-examined, the veracity and truthfulness of depositions of witnesses could not be shaken---Investigating Officer had unambiguously deposed that when he picked up the girl from the house of the accused, she was in injured condition; she was taken to hospital and, pursuant to her medical examination, the injuries were confirmed in the Medico Legal Report---Medical Officer had confirmed that the injuries or the burn marks were not because of any fall but were caused by deliberate act---Accused persons in their statement recorded under S. 342, Cr.P.C. had vaguely stated that wounds over hand and face were accidental, the contact burn over back were inflicted in the crisis management centre because the wounds were not even complained of in the complaint---No explanation was given regarding the accident which had caused the injuries on the face and hands of minor---Nonetheless said statement acknowledged that the injuries were caused while girl was in their house---Testimony of girl that her injuries were not caused accidentally was corroborated by medical evidence, her photographs, the depositions of witnesses and the narration of facts in the FIR---Recovery of items used for causing the injury and burns was pursuant to having been led by minor herself---Record showed that accused persons had hidden the minor to ensure disappearance of evidence of the commission of offence against the girl, who had suffered injuries and burns, thus the offence under S.201, P.P.C. stood proved---Circumstances established that accused persons had left the minor alone in the house and exposed to the cold weather in the evening stand proved beyond any doubt---Hiding the minor while in injured condition and causing a false report to be recorded in the concerned police station that she was missing also stand proved from the evidence---Despite being injured and seen in such condition by witnesses and yet not giving her medical assistance was wilful neglect and ill treatment at the hands of the accused persons---Depriving the girl of the right of education and keeping her in virtual servitude could obviously not be justified by someone who held position of a judge---Deliberate attempt to hide the injured minor till she was picked up by Police Officer and failure to give her medical assistance alone satisfied not only the actus reus contemplated under S. 328-A, P.P.C. but also satisfied the required mens rea---Offence under S.328-A, P.P.C. stood proved against the accused persons in circumstances---Facts and circumstances of the present case suggested that there was no mitigating factors which would call for handing down the lesser sentence---Accused persons were not worthy of any sympathy because the ill treatment and neglect was wilful and could not be justified on any ground whatsoever---Accused persons were aware and they deliberately and consciously made the innocent and helpless girl to suffer tremendously---Petition filed by the State seeking leave was converted into appeal and was allowed by enhancing the sentence of each accused to simple imprisonment of three years.

Jalwanti Lodhin v. The State AIR 1953 Patna 246; Muhammad Ali Jan v. The State and another PLD 2015 Pesh. 134; Abbas Ali Shah v. Emperor AIR 1933 Lah. 667; Muhammad Feroze v. The State 2003 YLR 2234; Muhammad Feroze v. The State PLD 2003 Kar. 355; The State v. Syed Aamir Shabbir 2016 PCr.LJ 286; Muhammad Irfan v. The State 2018 PCrl.LJ Note 68; The State v. Syed Aamir Shabbir 2016 PCr.LJ 286; Muhammad Irfan v. The State 2018 PCrl.LJ Note 68; Rahmatullah v. The State 2018 PCr.LJ Note 31; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946; Mukhtar Ahmad v. The State 2003 SCMR 1734; Muhammad Akram v. The State 2009 SCMR 230; Saleem Muhammad and another v. The State and another 2017 PCr.LJ 1391; State v. Ali Asghar 2017 PCr.LJ 349; Sarfraz alias Safu and others v. The State 2017 YLR Note 220 and The State v. Muhammad Asif Saigol and others PLD 2016 SC 620 ref.

Saeed Ahmed v. The State 2015 SCMR 710 rel.

(b) Administration of justice---

----Judge must wear all the laws of the country on the sleeves of his robe.

Iffat Jabeen v. District Education Officer (M.E.E.) Lahore and another 2011 SCMR 437; Section Officer, Government of Punjab, Finance Department and others v. Ghulam Shabbir 2010 SCMR 1425 and Land Acquisition Collector and 6 others v. Muhammad Nawaz and 6 others PLD 2010 SC 745 rel.

(c) Criminal trial---

----Cross-examination--- Principles--- If a witness was not cross-examined regarding a material part of his evidence, then the inference would be that the truth of the same was accepted by the other side, particularly when the statement was material to the controversy of the case---If not challenged in cross-examination then such unchallenged statement was required to be given full credit and usually accepted as true unless discarded by reliable and cogent evidence.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Dr. Javaid Akhtar v. The State PLD 2007 SC 249 rel.

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

----S. 154---Registration of FIR---Scope---First Information Report under S. 154, Cr.P.C. could be registered by the incharge of the Police Station regardless of how and in what manner the information had been received---First Information Report was neither substantive evidence nor exhaustive document but merely a first information report regarding the commission of a cognizable offence.

(e) Criminal trial---

----Actus reus and mens rea---Scope---Two factors were mandatory required for commission of offence---Actus reus was the physical element, the actual act---Mens rea was the mental factor which related to the awareness or intention of person that the conduct constituted a crime.

Raja Rizwan Abbasi, Sohail Akhtar, Naila Naureen and Raza Ali Shah for Appellants.

Tariq Mahmood Jahangiri, Advocate General Islamabad for Respondents

Awais Haider Malik, State Counsel.

2019 Y L R 209

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syed MUNIR SYED---Petitioner

Versus

Sardar MUHAMMAD KAMAL KHAN and 2 others---Respondents

Civil Revision No.193 of 2017, decided on 26th September, 2018.

(a) Arbitration Act (X of 1940)---

----Ss. 20, 31, 33, 5 & 11---Civil Procedure Code (V of 1908), O. IX, Rr. 8 & 9---Partnership Act (IX of 1932), S.69---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Arbitration agreement---Suit for declaration, specific performance and permanent injunction dismissed for non-prosecution---Initiation of arbitration proceedings after dismissal of said suit---Res judicata, principle of---Applicability---Allegation of bias in the Arbitrator---Stay of arbitration proceedings---Scope---Plaintiff filed suit for declaration, specific performance and permanent injunction which was dismissed for non-prosecution and application for restoration of the said suit was moved---Application for initiation of arbitration proceedings was also moved before Arbitrator by the plaintiff---Defendant moved application before civil Court for stay of arbitration proceedings on the ground that Arbitrator had been impleaded as defendant in the civil suit and he was also witness of arbitration agreement---Trial Court stayed proceedings before the Arbitrator on the basis of allegation of bias---Validity---Order IX, R. 9, C.P.C. barred the institution of a fresh suit on the same cause of action which was subject matter of the earlier suit dismissed for non-prosecution---Invocation of arbitration clause of the agreement by the petitioner could not be termed as institution of a fresh suit---Arbitration with or without the intervention of the Court was not a suit---Application under S.20 of Arbitration Act, 1940 was not a suit stricto sensu---Section 69 of Partnership Act, 1932 did bar a partner in an unregistered partnership from instituting a suit to enforce a right arising from a contract---Application under S.20 of Arbitration Act, 1940 did not fall within the ambit of S.69 of Partnership Act, 1932---Suit instituted by the petitioner did not culminate in a judgment or a decree---Disputes between the parties were not adjudicated by the Civil Court on merits---Principle of res judicata was not applicable with regard to institution of arbitration proceedings by the petitioner---Petitioner had been deprived of seeking adjudication of his claim before any forum---When defendant in a suit had taken a step in the proceedings or filed a written statement then he would be disentitled from seeking a stay of suit on the basis of an arbitration agreement executed with the plaintiff---Defendant in the present case had objected to the maintainability of suit on the basis of arbitration agreement executed between the parties---Institution of suit or its dismissal for non-prosecution would not operate to place a disability on the petitioner from instituting arbitration proceedings in circumstances---Petitioner could not have been denied his right to institute arbitration proceedings against the respondent on the ground that he had earlier instituted a civil suit against the respondent---Arbitrator was named in the impugned arbitration agreement---Had the parties to the arbitration agreement no consensus ad idem with regard to its execution then respondent would not have objected to the maintainability of petitioner's suit on the basis of said agreement--- Impugned arbitration agreement was voluntary entered into therefore parties could not be allowed to resile from the same---Vague or unsubstantiated apprehensions could not be made standard for the removal of an arbitrator---Respondent had not pleaded specifically the basis on which he had alleged that the arbitrator was bent upon to decide the matter against him---Arbitrator had been impleaded as a defendant in the suit instituted by the petitioner but no relief had been sought against him---Mere fact that arbitrator had been impleaded as a defendant in the suit would not disqualify him from sitting in an adjudicating capacity over the dispute between the parties---Arbitrators should not attend Court and participate in the proceedings before Civil Court in which their removal or revocation of their authority had been sought whether or not they were impleaded as parties to such proceedings---Application to challenge the existence or validity of an arbitration agreement could be filed but no such application had been moved by the respondent---Authority of an appointed arbitrator or umpire should not be revoked except with the leave of the Court unless a contrary intention was expressed in the arbitration agreement---Impugned orders passed by the Courts below were set aside---Application for stay of arbitration proceedings was dismissed---Revision was allowed, in circumstances.

2006 YLR 807 ref.

2002 SCMR 1964 distinguished.

Messrs James Construction Company (Pvt.) Limited through Executive Director v. Province of Punjab through Secretary to the Government of Punjab PLD 2002 SC 310; Mohamed Abdul Latif Faruqi v. Nisar Ahmad PLD 1959 Kar. 465; Bismal Kumar Ghosh and another v. Saikat Sarkar AIR 1987 Cal. 208; Inderpal Singh Hassan Walia v. Messrs Bir Tibetan Wollen Mills and others AIR 1974 Delhi 95; S.P Consolidated Engineering Company (Pvt.) Limited v. Union of India and another AIR 1966 Calcutta 259; Messrs United Cotton Factory, Hyderabad v. Ahmad Khan PLD 1960 Kar. 774; Director Housing A.G'S Branch, Rawalpindi v. Messrs Makhdum Consultants Engineer and Architects 1997 SCMR 988; Islamic Republic of Pakistan v. Abdul Waleed Khan PLD 1976 SC 57; M.H. Khondkar v. The State PLD 1976 SC 40; Pak. U.K. Association (Pvt.) Ltd. v. The Hashemite Kingdom of Jordan 2017 CLC 599; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Azhar Ali v. Punjab Public Service Commission PLD 2004 SC 4; Sain Rakhio v. Abdul Ghaffar 2011 CLC 1160; International Airport Authority of India v. K.D. Bali AIR 1988 SC 1099; Bristol Corporation v. John Aird & Co. 1913 AC 241 and Eckersley v. Mersey Dock and Harbour Board 1894 (2) QB 667 rel.

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

----O. IX, Rr. 8 & 9---Suit dismissed for non-prosecution---Fresh suit, institution of---Scope---Where a suit was wholly or partly dismissed under O. IX, R. 8, C.P.C. then plaintiff would be precluded from filing a fresh suit with regard to same cause of action.

(c) Arbitration Act (X of 1940)---

----S. 2(a)---'Arbitration agreement'---Scope and requirements.

Section 2(a) of the Arbitration Act, 1940 defines an arbitration agreement as a written agreement to submit present or future differences to arbitration, whether an Arbitrator is named therein or not. An arbitration agreement is not required to be in any particular form. To constitute an arbitration agreement in writing, it is not necessary that it should be signed by the parties, and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established. All that is necessary is that the parties should accept the terms of the arbitration agreement. The acceptance may be in writing or by conduct. The arbitration agreement need not be incorporated in a formal deed or be under seal. It may well be entered into through correspondence or by a less formal document. What is required to be ascertained is whether the parties had agreed that if disputes arose between them in respect of the subject matter of the contract, such disputes would be referred to arbitra-tion, then such an agreement would spell out an arbitration agreement.

Muhammad Shahzad Siddiq for Petitioner.

Hassan Rashid Qamar and Ch. Aziz ur Rehman Zia for Respondents.

2019 Y L R 255

[Islamabad]

Before Athar Minallah and Mohsin Akhtar Kayani, JJ

IFTIKHAR ALI HAIDERI---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Chairman and another---Respondents

Criminal Appeal No. 9 of 2017 and Writ Petition No. 157 of 2017, decided on 15th January, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i)(ii)(iii) & 24(a)---Criminal Procedure Code (V of 1898), S. 103---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), S.161---Illegal gratification--- Trap/raid---Necessary ingredients.

Following principles are laid down with regard to trap/raid case;

i. Conversation between complainant and accused is relevant to be heard by the raiding party.

ii. Bribe money has to been seen while passing to the accused.

iii. Independent witnesses available at the time of recovery and arrest have to be associated as witnesses.

iv. If complainant being biased against the accused, his evidence needs independent corroboration.

v. It is not necessary in raid (trap cases) to look for a direct evidence of criminal conversation between the accused and complainant provided that Magistrate who supervise the raid was satisfied that he had not been cheated neither by the complainant/decoy witness nor the accused.

vi. The purpose of giving bribe money/ illegal gratification has to be proved independently against which the accused was receiving the bribe.

vii. Recovery has to be proved through direct evidence and confirmed by the raiding Magistrate.

viii. Overhearing of the conversation of complainant and accused by the Magistrate is immaterial, neither the same is conditioned precedent to prove a raid case nor the same is the requirement of the law.

ix. Requirements of Section 103, Cr.P.C. in recovery proceedings are mandatory other than by police witnesses if independent witnesses were available.

x. Raiding Magistrate has to record the statement of the accused at the time of recovery in order to understand the issue as to whether the recovered/ tainted notes or articles are required for any official purpose or job.

xi. Mere recovery of currency notes in such cases by itself would not be taken as proof of demand/payment of bribe unless all precautionary measures were taken by the raiding party to exclude the possibility of any defence version and to exclude all possibilities of false implications.

xii. Currency notes which were passed on to complainant, their serial numbers were noted, but without putting any initial or mark thereon; such notes could not be strictly termed to be tainted currency notes.

xiii. Law required that immediately after the raid, statement of complainant and accused was to be recorded by the raiding Magistrate.

xiv. Raiding Magistrate has to see that complainant or decoy witness has delivered the bribe money to the accused.

xv. Site plan has to be prepared regarding the raid wherein each and every witness, Magistrate, accused, complainant/ decoy witness has to be identified.

xvi. Numbers of currency notes have to be mentioned in Mashirnama/recovery memo.

xvii. Tainted money has to be shown to the recovery witnesses on spot after getting it recovered from the accused at the time of raid.

xviii. Magistrate as well as police officials had to witness the transaction of delivery of illegal gratification which was accepted by the accused in trap proceedings.

xix. Court was required to consider explanation offered by accused on the touchstone of preponderance of probability and not on the touchstone of proof beyond reasonable doubt, however before an accused was called upon to explain as to how the amount in question was found in his possession, foundational facts must be established by the prosecution in Trial.

xx. Recovered tainted currency notes could have been at the most corroboratory in nature subject to condition that complainant has supported the prosecution case.

xxi. Investigation Officer, if admitted the presence of private witnesses at the time of raid and arrest as well as recovery of the alleged tainted money, he has to comply with provisions of Section 103, Cr.P.C.

xxii. Tainted money has to be marked and sealed after its alleged recovery by the raiding Magistrate

xxiii. The accused person must have a capacity to fulfill the demand of complainant or in position to deliver the nature of work assigned to him and evidence should have been given to that effect that accused has completed the job against which he is receiving the illegal gratification. [p. 280] A

Muhammad Ashraf v. The State 1996 SCMR 181; Muhammad Aslam v. The State PLD 1992 SC 254; Malik Umar Hayat v. The State 1998 SCMR 586; Shahjahan v. The State PLD 2004 SC 35; Malik KB Awan v. Rana Muhammad Irshad 2008 YLR 1094; Muhammad Saleem Khan v. The State 2005 PCr.LJ 325; Abdul Majeed v. The State 2012 YLR 2792; Sher Afzal v. The State 1989 P.Cr.LJ 1382; Javed Ali Memon v. The State 2001 PCr.LJ 2062; Rana Muhammad Tariq v. The State 2016 YLR Note 191; The State v. Khalid Rashid Kamboh 2017 PCr.LJ 459 and Anwar Ali v. The State 2013 MLD 907 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(i)(ii)(iii)---Qanun-e-Shahadat (10 of 1984), Arts. 117, 120 & 129(g)---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), S. 161---Illegal gratification---Trap/raid---Sign, taint or mark---Proof---Prosecution is bound under, Qanun-e-Shahadat, 1984 to establish that a particular sign, taint or mark has been made on recovered currency notes/bonds prior to raid---If such factum is not disclosed or proved in such manner it is considered that prosecution has withheld evidence under Art. 129(g) of Qanun-e-Shahadat, 1984 as onus is upon the prosecution to prove such particular fact.

Muhammad Saleem Khan v. The State 2005 PCr.LJ 325 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(i)(ii)(iii)--- Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), S. 161---Illegal gratification--- Trap/raid--- Recovery of amount---Proof---Recovery of Prize Bonds is a corroborative piece of evidence; in order to corroborate recovered bonds with any prior prepared list by Magistrate, it has to be given an effect only through a manner by placing numbers of prize bonds in recovery memo as it is mandatory requirement to refer numbers of currency or bonds in recovery memo.

Sher Afzal v. The State 1989 PCr.LJ 1382 and The State v. Khalid Rashid Kamboh 2017 PCr.LJ 459 rel.

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

----Arts. 72, 73, 75 & 76---Documentary evidence---Proof---Prosecution was bound to prove documentary evidence in a manner required under Arts. 72, 73, 75 & 76 of Qanun-e-Shahadat, 1984 where contents of documents have to be proved independently.

Syed Hamid Saeed Kazmi and others v. The State 2017 PCr.LJ 854 rel.

(e) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i)(ii)(iii) & 24(a)---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), S. 161---Illegal gratification---Trap/raid---Version of accused, recording of---Raiding Magistrate is bound to record version of accused on the spot after recovery---When no such exercise is made then it cannot be assumed that alleged prize bonds were given to accused as illegal gratification.

2004 MLD 168 and Muhammad Tariq v. The State 2016 YLR Note 191 rel.

(f) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i)(ii)(iii) & 24(a)---Criminal Procedure Code (V of 1898), S. 103---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), S. 161---Illegal gratification---Trap/raid---Search proceedings---Procedure---Prosecution is duty bound to prove that recovery has been made in accordance with provisions of S.103, Cr.P.C.---Officer who wants to make search of a person was obliged to call upon two or more inhabitants of the locality where the person was to be searched.

Muhammad Ashraf v. The State 1996 SCMR 181; Javed Ali Memon v. The State 2001 PCr.LJ 2062 and Muhammad Tariq v. The State 2016 YLR Note 191 rel.

(g) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i)(ii)(iii) & 24(a)---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), S. 161---Illegal gratification--- Trap/raid--- Hearing of conversation---Object, purpose and scope---Conversation is mandatory part to linkup chain with other corroborative pieces of evidence and such factors necessitate hearing of conversation.

Muhammad Ashraf v. The State 1996 SCMR 181; Bashir Ahmad v. The State 2001 SCMR 634; Rashid Ahmad v. The State 2001 SCMR 41; Ghulam Mustafa v. The State 1990 MLD 1575; Shabir Ahmad v. The State PLD 1996 Kar. 537 and Sajid Naveed v. The State 1999 MLD 156 rel.

(h) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & Preamble---Constitution of Pakistan, Art. 25---Corruption and corrupt practices, investigation of---Principle of reasonable classification---Applicability---Mandate of National Accountability Ordinance, 1999 is to eradicate corruption of large scale---Cases should not be picked by choice of National Accountability Bureau authorities when same already falls within jurisdiction of Federal Investigation Agency authorities---All laws must be applied equally upon every person subject to reasonable classification.

Asfandyar Wali v. FOP PLD 2001 SC 660 and Attiyya Bibi Khan v. FOP 2001 SCMR 1161 rel.

(i) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i), 24 & 32---National Accountability Bureau Standing Operating Procedure, Operational Methodology Volume-I, Operations Division and Prosecution Division, Edition 2015---Illegal gratification---Appreciation of evidence---Trap/raid case---Jurisdiction of National Accountability Bureau---Scope---Accused was Deputy Director in Capital Development Authority who was arrested in a trap/raid case for receiving illegal gratification for a sum of Rs. 4,000,000/- in shape of prize bonds---Trial Court convicted accused and sentenced him for imprisonment of 1½ years---Validity---National Accountability Bureau officials were not authorized with power to conduct raid in cases relating to receiving of illegal gratification by public servants---Such authority exclusively fell within domain of Federal Investigation Agency/ Anti-Corruption authorities---Prosecution witnesses failed to prove recovery of prize bonds and even recovery memo did not contain prize bond numbers---Taint and mark on each prize bond was not proved in accordance with law---Even witnesses were not shown bonds at the time of recovery neither any statement of accused as well as witnesses was recorded by Magistrate or Investigating officer at the spot and prosecution witnesses did not see delivery of prize bonds to accused---National Accountability Bureau authorities exercised their jurisdiction while initiating inquiry/investigation which was not warranted under law---Entire edifice constructed by National Accountability Bureau authorities as well as by prosecution witnesses crumbled down and charge was not proved against accused in any manner---Benefit of doubt emerged on scene which had to be extended to accused---High Court set aside conviction and sentence awarded to accused and acquitted him of charge---Appeal was allowed in circumstances.

Muhammad Akhtar v. The State 1989 SCMR 1814; (Suo Motu case No.15 of 2009) Corruption in Pakistan Steel Mills Corporation PLD 2012 SC 610 and Asfandyar Wali v. FOP PLD 2001 SC 660 ref.

Safdar v. Government of Sindh 2001 SCMR 1231; Rauf Bakhsh Kadri v. The State 2003 MLD 777; Amjad Hussain v. NAB 2017 YLR 1 and Rizwan Ahmed v. NAB PLD 2008 Lah. 381 rel.

Muhammad Arshad Tabrez for Appellant.

Muhammad Adnan Tahir (Special Prosecutor, NAB) for Respondents.

2019 Y L R 361

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Homoeopathic Dr. FAISAL SALEEM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.1132 of 2012, decided on 16th May, 2012.

Unani, Ayurvedic and Homeopathic Practitioners Act (II of 1965)---

----Ss. 3, 5 & 13(2)---Unani, Ayurvedic and Homeopathic System of Medicines Rules, 1980, Rr. 29 & 30---Member for National Council for Homeopathy---Election dispute---Petitioner was returned candidate and was aggrieved of recounting of votes to elect Member for National Council for Homeopathy---Notification of petitioner was set aside on ground that petitioner did not take oath---Validity---Procedure adopted to oust petitioner was alien to law and same was nothing but rarity and sham---Once notification of success of candidate was issued, Returning Officer ceased to hold any authority to alter results---Will of electorate could not be frustrated in such manner and difference of 158 votes could not have been covered except manipulations with ballot papers in custody of authorities, therefore, emphasis on recounting was ridiculous---Jurisdiction exercised by authorities in disqualifying petitioner and declaring unsuccessful candidate as returned candidate was arbitrary, illegal, unprecedented, perverse, alien to law, against principles of natural justice, mala fide and coram non judice---High Court set aside notification issued in favour of respondent and that in favour of petitioner was restored---Constitutional petition was allowed in circumstances.

PLD 2008 SC 663; 1999 SCMR 299; Mehdi Abbass Khan's case 2007 CLC 1330; Chauhdary Pervaiz Akhtar's case PLD 2006 Lah. 29 and Ghani-ur-Rehman's case 1997 CLC 1092 rel.

Amir Abdullah Abbasi for Petitioner.

Ch. Mushtaq Hussain for Respondent No.2.

2019 Y L R 427

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs EXCEED PRIVATE LIMITED---Appellant

Versus

PAKISTAN HOUSING AUTHORITY FOUNDATION and others---Respondents

F.A.O. No. 42 of 2018, decided on 7th December, 2018.

(a) Arbitration Act (X of 1940)---

----S. 34---Stay of legal proceedings---Principle---Readiness and willingness of a party filing application under S. 34 of Arbitration Act, 1940 is sine qua non for applicability of the section---Defendant applying for suits/proceedings to be stayed has to satisfy court that he is and was at the commencement of suit/proceedings ready and willing to do everything necessary for proper conducting of arbitration.

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

----Ss. 42 & 54---Arbitration Act (X of 1940), S. 34---Suit for declaration, permanent injunction and recovery of money---Stay of proceedings---Parties entered into contract for construction of multi-storeyed apartments and plaintiff had furnished performance bond equal to 10% of contract price in favour of defendant---Plaintiff filed suit as dispute between parties had arisen due to delay in completion of contract---Trial Court accepted application filed by defendant and stayed proceedings till determination of matter by arbitrator---Validity---No document was available on record to show that defendant took no steps for referring matter and dispute with plaintiff to arbitration---Defendant was ready and willing to go to arbitration prior to institution of suit by plaintiff---Mere inaction or lack of response on part of defendant to claim of plaintiff for payment of money could not be construed as unwillingness on part of defendant to cooperate in commencement of arbitration proceedings---High Court declined to interfere in orders passed by Trial Court---Appeal was dismissed in circumstances.

Atinbose v. Heavy Engineering Corporation AIR 1983 Calcutta 376 rel.

Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498; Gabole Brothers v. Government of Pakistan PLD 1972 Kar. 515; Dr. Muhammad Shafi v. Maj. (Retd.) M. Iqbal Hussain PLD 1996 Lah. 667 and Food Corporation of India v. Messrs Thakur Shipping Co. Ltd. AIR 1975 SC 469 ref.

Ali Nawaz Kharal for Appellant.

Imran Ali Kayani for Respondents Nos.1 and 2.

2019 Y L R 634

[Islamabad]

Before Aamer Farooq, J

Mst. RIFFAT SHAMIM---Petitioner

Versus

MEHMOOD HUSSAIN and 3 others---Respondents

Civil Revision No.309 of 2015, decided on 15th November, 2018.

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

----Ss. 96 & 105---Appeal by stranger---Locus standi---Principle---When a party to suit is adversely affected from judgment and decree passed in any civil suit, therefore, an appeal can be preferred by that party---Stranger to suit, in circumstances, can also prefer an appeal.

H. M. Saya and Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Muhammad Rafique v. Khalid Masood and 22 others 2001 CLC 781 and Sahib Dad v. Province of Punjab and others 2009 SCMR 385 ref.

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

----Ss. 105, & O. I, R. 10---Suit for declaration---Appeal---Divorce certificate was issued in favour of plaintiff by Arbitration Council---After death of her husband, plaintiff filed suit seeking cancellation of divorce certificate---Legal heirs of deceased moved application to be impleaded as party in suit but application was dismissed and suit was decreed in favour of plaintiff---Legal heirs of deceased filed appeal against judgment and decree which was allowed by Lower Appellate Court and case was remanded to Trial Court for decision afresh---Validity---Not every order could be assailed in appeal against judgment and decree however, appellant had to show in light of S. 105, C.P.C. that error, defect or irregularity in order had effected decision of case but Lower Appellate Court failed to take such fact into account---Respondents in appeal had to show that dismissal of their application under O. I, R.10, C.P.C. was erroneous and that error, defect or irregularity had effected decision of case---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Petitioner in person.

Ms. Rakhshanda Yunus for Respondents.

2019 Y L R 781

[Islamabad]

Before Athar Minhallah, C.J. and Miangul Hassan Aurangzeb, J

GOHAR ULLAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and others---Respondents

W.P. No.1452 of 2018, decided on 15th January, 2019.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 3---Exit from Pakistan (Control) Rules, 2010, R. 2 (1)-- National Accountability Ordinance (XVIII of 1999) Ss. 16 & 5(g)---Exit Control List (ECL)---Petitioner impugned order of Ministry of Interior whereby his representation to have his name removed from the Exit Control List (ECL) was rejected inter alia on the ground of pending proceedings against petitioner in Accountability Court constituted under the National Accountability Ordinance, 1999---Validity---Accountability Court, where reference against petitioner was pending, was in the best position to decide as to whether the petitioner's name should be removed from the ECL in view of gravity of the allegation against the petitioner---High Court observed that no impediment existed for petitioner to apply to the Accountability Court for dispensing with the petitioner's presence in the proceedings so as to enable him to travel abroad for a fixed period, and the said Court may, in the exercise of its discretion, allow or decline such an application---High Court further observed that only after an order in favour of petitioner's application was passed by the Accountability Court, he could apply to the Ministry of Interior for permission to travel abroad.---Constitutional petition was disposed of, accordingly.

Dr. Joseph Wilson v. Federation of Pakistan 2017 PCr.LJ 1569 distinguished.

Asif Kamal v. Government of Pakistan 2016 YLR 177 and S. Akbar Ali Shah v. Federation of Islamic Republic of Pakistan 2011 MLD 1536 rel.

Barrister Umer Aslam Khan for Petitioner.

Barrister Rizwan Ahmed, Deputy Prosecutor-General, NAB.

2019 Y L R 825

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Ch. MUHAMMAD JAMIL---Petitioner

Versus

Chaudhary MUHAMMAD RAMZAN and others---Respondents

F.A.O. No.115 of 2018, decided on 14th November, 2018.

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

----O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S. 52---Suit for declaration---Temporary injunction, grant of---Family settlement---Allegation of fraud---Effect---Question of fraud was not purely a question of law---Party alleging fraud was bound to prove the commission of fraud---Findings with regard to commission of fraud were to be based on cogent, unimpeachable and confidence inspiring evidence---Mere allegations of fraud could not partake proof required under the law---Fraud could not be presumed rather same must be proved as a positive act---Fraud alleged by the plaintiff to have been committed by the defendants was simple allegations and nothing more which had to be determined during course of the trial---Agreement entered into by fraud was voidable and not void---Person seeking to avoid an agreement on the ground of fraud had to be prompt in seeking redress---Agreement alleged to have been entered into by fraud did remain operative as long as it was not set aside, rescinded or recalled by a competent authority---Family settlement alleged by the plaintiff to have been based on fraud would remain operative until civil court after trial declared that said agreement was void on account of having been executed on the basis of fraud committed by the defendants---Plaintiff at this stage did not have a prima facie case for grant of an interim injunction---Trial Court had rightly exercised its discretion while dismissing application for interim injunction---Principle of lis pendens would apply to the pendente lite sale of the properties which were subject matter of the suit---Appeal was dismissed, in circumstances.

Punjab National Bank Ltd. v. Dr. A.B. Arora and others AIR 1933 Lah. 1024; Begum Shmas-un-Nisa v. Said Akbar Abbasi PLD 1982 SC 413; Ms. Alia Khalid v. Nazeer Ahmed 2005 SCMR 1273; Allah Dad v. Dhuman Khan 2005 SCMR 564; Irshad alias Abdul Rahim v. Ashiq Hussain PLD 2007 Kar. 421 and Muhammad Munawar Bajwa v. Mst. Zubera Shaheen 2004 CLC 441 rel.

(b) Fraud---

----Fraud vitiated all solemn acts and unravel everything.

Punjab National Bank Ltd. v. Dr. A.B. Arora and others AIR 1933 Lah. 1024 rel.

(c) Words and phrases---

---'Family settlement'---Defined.

Family settlement/arrangement is a transaction between members of the same family which is for the benefit of the family generally, as, for example, one which tends to the preservation of the family property, to the peace and security of the family and the avoiding of family disputes and litigation or to the saving of the honour of the family. Halsbury's Laws of England 2nd Edition, Volume XV rel.

Muhammad Akram Sheikh and Natalya Kamal for Appellant.

Khurram Mehmood Qureshi for Respondent No.1.

Sheikh Muhammad Khizar-ur-Rasheed for Respondent No.4.

Muhammad Ilyas Sheikh for Respondent No.5.

Abdur Rasheed Awan for Respondent No.6.

Haseeb Zahid for Respondents Nos.2, 7 and 8.

Javed Iqbal Wains for Respondent No.9.

2019 Y L R 902

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ASAD AMIN---Petitioner

Versus

NOOR HUSSAIN---Respondent

W.P. No.345 of 2016, decided on 29th February, 2016.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 15 & 17---Eviction petition---Default in payment of rent---Failure of landlord to make necessary repairs---Unilateral deduction of rent in lieu of repairs carried out by tenant---Effect---Landlord filed eviction petition on the ground of default in payment of rent and expiry of lease agreement---Rent Controller directed the tenant to deposit outstanding rent---Tenant deposited partial amount of outstanding rent and adjusted the rest towards the amount he expended on the maintenance of rented premises---Rent Controller and Appellate Court concurrently ordered tenant's eviction---Validity---Tenant had not pleaded the factum of any amount expended on the maintenance of demised premises and had taken the ground for the first time in his memo. of appeal---Any amount which the tenant might have spent unilaterally on the maintenance of demised premises or carrying out any repairs without the express permission of landlord could not be adjusted against the rent---In case demised premises was in need of repair or maintenance and the landlord refused to carry out the same, S. 15, Islamabad Rent Restriction Ordinance, 2001 provided a mechanism for repairs to be carried out by a tenant and the amount expended to be deducted from the rent payable to the landlord---Tenant, before carrying out the repairs or maintenance, had neither requested the landlord nor filed application before Rent Controller for permission to carry out repairs and deduct the costs from the rent payable---Constitutional petition was dismissed, accordingly.

Mushtaq Ahmad Kiani v. Bilal Umair 2009 SCMR 1008; Bilal Abid v. District Judge (West) Islamabad 2015 YLR 2405; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52; Hassan Ali Khan v. Additional District Judge, Islamabad 2003 CLC 1819; Major (R) Shakil-ud-Din Ahmad v. Addl. District Judge, Islamabad 2007 CLC 601; Sath Girdhari Lal v. Marzia Bang PLD 1963 Quetta 25; Naim uddin Siddiqui v. S.M. Ahmed Habibur Rehman 1983 CLC 1378; Saleem J. Mufti v. Ghulam Sarwar Dawoodi 1985 MLD 992; Shahjahan Begum v. Iqbal Jahan Begum 1985 CLC 2450; Abdul Jabbar v. Syed Mohsin Abbas 1986 CLC 2007; Abdul Razaq v. Abdul Sattar Khan 1991 MLD 326; Bagh Ali v. Habib Bank Ltd. 1998 CLC 1205; Mujtaba Ali Naqvi v. Noor Jahan Begum 1991 MLD 1849; Shah Nawaz Faridi v. Sirajul Masjid 1991 MLD 2568 and Abdul Rehman v. Abdul Ghaffar 2009 YLR 63 rel.

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

----O. VI, R. 4---Pleadings---Particulars to be given where necessary---Scope---Point of facts not taken in the pleadings before the original court, could not be taken for the first time in appeal.

Safdar Ali v. Muhammad Malik 1995 CLC 1751; Shamsher Ali Khan v. Sher Ali Khan 1989 SCMR 828; Roshan Akhtar v. Muhammad Boota 2000 SCMR 1845; Punjab Road Transport Board v. Abdul Wahid PLD 1980 Lah. 584 and Muhammad Boota v. Basharat Ali 2014 CLD 63 ref.

(c) Administration of justice---

----A thing required by law to be done in a particular manner must be done in that manner or not at all.

Noorul Hassan and others v. Federation of Pakistan PLD 1956 SC 331 and Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 ref.

Shahzad Siddique Alvi for Petitioner.

Habib Ullah Khan for Respondent.

Date of hearing: 22nd February, 2016.

2019 Y L R 1188

[Islamabad]

Before Athar Minallah C.J. and Miangul Hassan Aurangzeb, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Appellant

Versus

Mrs. AMEER FATIMA and another---Respondents

I.C.A. No.367 of 2015, decided on 24th December, 2018.

Islamabad Displaced Persons Rehabilitation Policy, 1984---

----Para. 4 (c)(1)---Allotment of agro-farms---Respondents were landowners and their lands were acquired by authorities which were included in the city of Islamabad---Respondents invoked Constitutional jurisdiction of High Court to get allotment of plots in their favour---Single Judge of High Court allowed the petition and directed the authorities to allot agro-farms to the respondents---Validity---Where an affectee was issued eligibility certificate by Capital Development Authority for allotment of district colony land and such affectee was unable to utilize that certificate, such affectee under para.4(c)(1) of Islamabad Displaced Persons Rehabilitation Policy, 1984, was to be given an option for allotment of agricultural and a residential plot in an agroville provided that he had lost 40 Kanal or more cultivable land in acquisition---Land acquired from each of the respondents was more than 40 Kanal and they had applied for allotment of agro-farm to be allotted to each of them---Plot allotted to petitioners in Orchard Scheme was withdrawn and Allotment Scrutiny Committee was reconstituted with the mandate to scrutinize all cases of agro-farming plots to be allotted to affectees---Division Bench of High Court remanded the matter and directed the Allotment Scrutiny Committee of Capital Development Authority to pass speaking order on applications for restoration of plot to respondents---Intra-court appeal was allowed accordingly.

Kashif Ali Malik for Appellant.

Zaheer Bashir Ansari for Respondents.

2019 Y L R 1282

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

SAJID ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.141 of 2017, decided on 31st January, 2019.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Possession of narcotic substance---Delay in sending sample of narcotic substance to Government Analyst---Appreciation of evidence---Benefit of doubt---Accused was charged for possession of 1020 grams of charas---Plea of accused was that narcotic substance was allegedly recovered from him on 1-12-2014, same was submitted in malkhana on 8-12-2014 and was sent for chemical examination on 17-12-2014---Delay in sending the sample of recovered narcotic substance was stated to be due to non-submission of the required fee in the Bank caused by non-operation of the online system in the Bank---Validity---Admitted lapse on the part of the police/prosecution to have sent the recovered contraband substance for chemical analysis within the period stipulated under the law made the case against the accused as a doubtful one---Delay in sending the recovered narcotic substance for chemical examination was of more than two weeks---Substantial delay had not been adequately explained in the prosecution evidence---Appeal against conviction was allowed, in circumstances accused was acquitted of the charge.

2017 PCr.LJ 501 ref.

The State v. Imam Bakhsh 2018 SCMR 2039 rel.

Raja Arshad Hayat for Appellant.

2019 Y L R 1321

[Islamabad]

Before Aamer Farooq, J

Dr. SAIF UD DIN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.187 of 2017, decided on 8th January, 2019.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-L, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to qatl-i-Amd, causing hurt and rioting armed with deadly weapons---Appreciation of evidence--- Benefit of doubt---Identification parade---Accused persons were arrested and on basis of identification parade they were sent to face trial---Neither the accused were their nominated in FIR nor their description was mentioned therein---Trial Court convicted accused persons and sentenced them to imprisonment for life---Validity---Features of assailant were not mentioned in statement under S 161, Cr.P.C. nor even in FIR---During course of identification proceedings all witnesses identified one accused and attributed him role of firing with Kalashnikov---Accused to whom role was attributed was not nominated in FIR but was implicated subsequently---Source of knowledge by complainant and reason for implicating accused was not elaborated during evidence---High Court set aside findings of Trial Court convicting accused persons as there was ample doubt regarding their involvement in commission of offence---Prosecution failed to prove its case beyond reasonable doubt against accused persons and there were discrepancies and shortcomings in case of prosecution---High Court extended benefit of doubt to accused persons and acquitted them of the charge---Appeal was allowed in circumstances.

Hakim and others v. State 2017 SCMR 1546; Javed Khan v. State 2017 SCMR 524; Ghulfam v. State 2017 SCMR 1189; Azhar Mehmood v. State 2017 SCMR 135 Kamal Din v. State 2018 SCMR 577; 2008 MLD 1663; Javed v. State 2017 SCMR 524; Lalpasand v. State PLD 1981 SC 142 and Imran Ashraf v. State 2001 SCMR 424 ref.

Mst. Shamim Akhtar v. Fayyaz Akhtar PLD 1992 SC 211; Muhammad Saddique v. State 2013 PCr.LJ 539 and Muhammad Khalid v. State 2007 YLR 1423 rel.

Raja Rizwan Abbasi, Sohail Akhktar and Anwar ul Haq for Appellants.

Kashif Mustafa Satti for Respondents.

Awais Haider Malik, State Counsel.

2019 Y L R 1617

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No.46-B of 2019, decided on 19th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd ---Bail, grant of---Further inquiry---Two versions---Scope---Petitioner had been nominated on the basis of the statement subsequently recorded by the widow of the deceased , whereas complainant (father of the deceased) had nominated different set of accused in the FIR---Petitioner contended that only role of raising lalkara was attributed to him---Widow of the deceased contended that the complainant had misled the Police and the petitioner had been nominated in different criminal cases of similar nature---Two versions, while placing in juxtaposition, seemed entirely different from each other---Investigating Officer, in view of two versions, had taken into custody subsequently nominated accused persons including the petitioner ---Investigating Officer even got recovered the weapons of offence (Kalashnikov) , however, the same had not matched with crime empties recovered from the scene of occurrence during the examination conducted by Forensic Science Agency---Petitioner had been assigned the role of raising lalkara as such his role was considered to be on different footing from other accused who had actually committed the offence of murder---Two versions had been put in the present case, one forwarded by the complainant and the other came through supplementary statement of widow of deceased, however, correct version would be determined during trial after recording of evidence and in such like situation benefit of doubt could be extended to accused even at bail stage---Mere pendency of different criminal cases was not a ground to disentitle the accused for grant of bail if otherwise he was entitled to bail---Court was bound to make the assessment of evidence in tentative manner and there was no clog and embargo on the courts' power to asses evidentiary value of material placed before it, however, court had to refrain, directly or indirectly, from giving any conclusive findings on question of guilt or innocence of accused---Case of the petitioner called for further inquiry as envisaged under S.497, Cr.P.C---Petitioner was admitted to bail, in circumstances.

Muhammad Aleem v. The State 2008 PCr.LJ 982; Sher Ahmad v. The State and another 2003 YLR 1881; Zaigham Ashraf v. The State and others 2016 SCMR 18; Mohsin Ali v. The State and another 2018 MLD 934; Ehsan Ullah v. The State 2012 SCMR 1137; Tarique and 3 others v. The State 2018 MLD 745 and Khalid Javed Gillani v. The State PLD 1978 SC 256 ref.

Naseer Anjum Awan for Petitioner.

Ms. Saima Naqvi, State Counsel.

Raja Rizwan Abbasi, Sohail Akhtar and Ms. Naila Noreen for Respondents Nos. 2 and 3.

2019 Y L R 1625

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

SAFDAR ZAMAN and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.As Nos.206, 208 of 2015, Writ Petitions Nos. 3721 of 2012, 2047 of 2014, 1192, 1791 of 2015, Criminal Original Nos. 20, 182 of 2016 and I.C.A. No.305 of 2016, decided on 17th January, 2019.

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

----Ss. 11, 12, 13 & 19---Islamabad Capital Territory Zoning Regulations, 1992, Chapter-III---Constitution of Pakistan, Art. 9--- Amendment of schemes---Master plan, effect on---Development and control of zones---Principle of past and closed transaction---Applicability---Dispute between plot owners and Capital Development Authority regarding carving out of plots on green area/incidental open space---Single Judge of High Court, in exercise of Constitutional jurisdiction, declined to interfere in acts of Capital Development Authority---Validity--- Capital Development Authority, in preparing their schemes in terms of Ss. 12 & 13 of Capital Development Authority Ordinance, 1960, had detailed discussion/planning and research while considering land use, public buildings, utilization of water and power, natural resources, sewerage disposal and preservation of historical buildings prepared and then finalized schemes within master plan and master program referred to in S.11 of Capital Development Authority Ordinance, 1960---When master plan was finalized, schemes were properly prepared and implemented without any specification of future incentives or creation of plots---Capital Development Authority was not permitted to create a new interest in such a manner to deprive and damage benefits and rights accrued to individuals who were enjoying landscape, green belts and parks in their sectors, even trees, streams and as such their affiliation to nature and topography and scheme in which every street, galli and houses were planned and erected---Capital Development Authority failed to substantiate any of their justified reasons to amend layout plan and there was no provision of law to justify such actions of Capital Development Authority---All such decisions of Board of Directors of Capital Development Authority did not qualify test of reasonableness rather same amounted to violate Fundamental Rights of individuals in terms of Art. 9 of the Constitution---High Court declared that newly created plots which had already been allotted to different individuals by way of auction or through direct allotment under any other eligibility whether construction thereupon was done or otherwise, rights of third-party had been created, same were given protection under principle of past and closed transaction---High Court restrained Capital Development Authority from carving out any new plot in name of re-planning, rectification of layout plan or under circumstance in any sector of Islamabad Capital Territory saved in accordance with law---High Court declared green areas situated in sectors pertaining to petitioners which were vacant or not allotted by them but plots were created and were not part of original layout plan as illegal---Capital Development Authority could suggest amendment in regulations before competent forum for rectification, amendment or any relevant change in layout plan subject to inviting objections from general public---Intra court appeals were allowed accordingly.

Mst. Bashiran v. Government of Punjab 2010 YLR 1866; Residents' Welfare Society, Sector G-13 Islamabad v. FGEHF and others 2010 CLC 1663; Syed Waqar Hussain Gillani v. CDA 2013 CLC 1095; Province of Punjab and others v. Muhammad Akhtar 2007 SCMR 953; Pervaiz Oliver v. St. Gabril School PLD 1999 SC 26; 2010 SCMR 361 Suo Motu Case No.10 of 2005; Moulvi Iqbal Haider v. CDA PLD 2006 SC 394; Ardeshir Cowasjee v. Karachi Building Control Authority, Karachi 1999 SCMR 2883; Shehla Zia v. WAPDA PLD 1994 SC 693; Manzoor Bhatti v. Executive Officer, Cantonment Board, Multan PLD 2002 Lah. 412; Muhammad Ikhlaq Memon v. CDA 2015 SCMR 294; In re: Islamization of laws PLD 1985 FST 221; CDA v. Muhammad Hanif Khan 2003 CLC 1684; Suo Motu case No. 13 of 2009; PLD 2011 SC 619; Mustafa Impex's case PLD 2016 SC 808; Muhammad Moizuddin v. Mansoor Khalil 2017 SCMR 1787; Al-Samrez Enterprise v. FOP 1986 SCMR 1917; Molasses Trading and Exports (Pvt.) Ltd. v. FOP 1993 SCMR 1905; Mehram Ali v. FOP PLD 1998 SC 1449; Muhammad Mubeen v. Salam v. FOP PLD 2006 SC 602; Al-Tech Engineers and Manufacturers v. FOP 2017 SCMR 673 and Sahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206 ref.

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

----Ss. 11, 12, 13 & 19---Islamabad Capital Territory Zoning Regulations, 1992, Chapter-III---Master plan---Development and control of zones---Use of waste/underdeveloped land---Powers of Capital Development Authority---Scope---Capital Development Authority though can use waste land or underdeveloped land as they require being master regulator but after complete development of a sector, when inhabitants are enjoying facilities, they have been settled while considering location and nature of area, their easement rights come into existence then Capital Development Authority cannot take a somersault and claim that any leftover area of open space or a park can be converted.

Ali Nawaz Kharral for Appellants (in I. C. As. Nos. 206 and 208 of 2015).

Hadiya Aziz for Appellants (in C.M. No.4759 of 2017).

Muhammad Ali for Appellants (in C. Ms. Nos.2191 and 2192 of 2018).

Hafiz Ali Asghar for Appellants (in C.M. No.4168 of 2018).

Shahid Kamal Khan for Appellants (in C. M. No. 3125 of 2018).

Jan Muhammad for Appellants (in Diary No.12859 of 2018).

Mrs. Misbah Gulnar Sharif, Muhammad Nazir Jawad and Kashif Ali Malik, for CDA/Respondents (in I.C.As. Nos.206 and 208 of 2015).

Naeem Bukhari for Petitioner (in W.P. No.3721 of 2012).

Mrs. Misbah Gulnar Sharif for Respondent (in W.P. No.3721 of 2012).

Nemo for Petitioners (in W.P. No. 2047 of 2014).

Muhammad Nazir Jawad and Kashif Ali Malik for CDA and Muhammad Ilyas Sheikh for Respondent No.3. (in W.P. No. 2047 of 2014).

Muhammad Wajid Hussain Mughal for Petitioners (in W.Ps. Nos.1192 and 1791 of 2015).

Muhammad Nazir Jawad and Kashif Ali Malik for CDA and Shamshad Ullah Cheema, D.A.G. for Respondents (in W. Ps. Nos. 1192 and 1791 of 2015).

Ali Nawaz Kharral for Applicant (in Crl. Org. No.20 of 2016).

Mrs. Misbah Gulnar Sharif, Muhammad Nazir Jawad and Kashif Ali Malik, for CDA/Respondents (in Crl. Org. No. 20 of 2016).

Talha Ilyas Sheikh for Applicant (in Crl. Org. No.182 of 2016).

Nemo for Respondents (in Crl. Org. No.182 of 2016).

Muhammad Nazir Jawad and Kashir Ali Malik along with Ejaz-ul-Hassan, Deputy Director (UP), CDA for Appellants (in I.C.A. No.305 of 2016).

Tajammal Hussain Latti and Asad Iqbal Siddique for Respondent No.3 (in I.C.A. No.305 of 2016).

2019 Y L R 1738

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

MUHAMMAD IRFAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 68 and Murder Reference No.3 of 2016, decided on 29th November, 2018.

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

----S.164---Penal Code (XLV of 1860), Ss. 302(b), 324, 336 & 337-F(ii)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, causing itlaf-i-salahiyyat-i-udw, causing badiah---Appreciation of evidence---Benefit of doubt---Withholding of best evidence---Effect---Prosecution case was that the accused caught hold the complainant from her arm and poured the bottle of acid on her head, as a result whereof, the entire body and clothes of complainant caught fire and was burnt---First Information Report was lodged on the verbal statement of complainant---Magistrate, on the request of Investigating Officer, recorded statement of complainant---Complainant however, succumbed to injuries---Record showed that the Investigating Officer as well as the Magistrate wilfully neglected their lawful duties as both of them failed to take written permission from the doctors regarding fitness of deceased as to whether she was able to record her statement under S.164 Cr.P.C.---Magistrate had been declared as absconder by the Trial Court and the prosecution did not tender any valid reason or justification for his non-appearance---Official witness, however, had confirmed the photocopy of the statement of deceased to the extent of signature and handwriting of the Magistrate---Statement of deceased had referred a lady as eye-witness, who was not produced in the court despite the fact that she was the best witness in the case--- Adverse inference, in circumstances, could be drawn in terms of Art. 129(g) of Qanun-e-Shahadat, 1984---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Art. 74---Photocopies of original record---Effect---Prosecution was bound to justify the reasons for non-production of the original record.

The State v. Nisar Ahmad Khoro and others PLD 1998 Kar. 86 and Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237 rel.

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

----Art. 75---Documentary evidence---Proof---If primary evidence of any document was not produced in terms of Art. 75 of Qanun-e-Shahadat, 1984, the photocopy could not be considered as a valid proof of such document.

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

----Ss. 302(b), 324, 336 & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing itlaf-i-salahiyyat-i-udw, causing badiah---Appreciation of evidence---Last scene evidence---Last scene evidence had been produced by the brother-in-law of the deceased, who had claimed to be the eye-witness and had taken the deceased to the house of her employer and then to the hospital---Said employer of the deceased had not confirmed his presence at the relevant time---Brother-in-law of the deceased had not accompanied the employer of deceased to the hospital, which was unnatural act on his part---Said witness had stated during the course of cross-examination that when he reached in the street, where incident occurred, nobody was present there---Said version of witness had otherwise confirmed that he did not see the incident nor accused was present at the place of occurrence, therefore his evidence was of no effect.

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

----S. 161---Delay in recording the statement of witnesses---Effect---Statement recorded under section 161 Cr.P.C. with delay had no value in the eyes of law---Such statement could not be believed unless the delay was validly explained.

Muhammad Asif v. The State 2017 SCMR 486 and Shaukat Ali and 2 others v. The State 2017 YLR 724 rel.

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

----Ss. 302(b), 324, 336 & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing itlaf-i-salahiyyat-i-udw, causing badiah---Appreciation of evidence---Prosecution case was that the accused caught hold the complainant from her arm and poured the bottle of acid on her head, as a result whereof, the entire body and clothes of complainant caught fire and was burnt---Recovery of can/drum of acid from accused--- Reliance--- Scope--- Record showed that a can/drum on the pointation of accused had been recovered from the open place, which had no significance as the Investigating Officer had not transmitted the same for chemical examination---Investigating Officer had neither taken the burnt/last worn clothes of deceased nor the same were got examined by any test---Cumulative effect of non-performance of said acts affected the very foundation of the case.

(g) Criminal trial---

----Benefit of doubt--- Principle---Single doubt emerged on record the same would entitle accused to acquittal.

Hashim Qasim and others v. State and others 2017 SCMR 986 rel.

Syed Khawar Ameer Bukhari for Appellant.

Sadaqat Ali Jahangir for the State.

G.M. Naqvi, S.I., P.S. Shahzad Town, Islamabad.

2019 Y L R 2006

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

The STATE---Appellant

Versus

ZAFAR ALI---Respondent

Murder Reference No.2 of 2015 and Jail Appeal No.29 of 2015, decided on 13th May, 2019.

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

----S. 302(a)---Criminal Procedure Code (V of 1898), Ss. 265-D & 265-E---Qatl-i-amd---Appreciation of evidence---Conviction at the time of framing of charge---Scope---Accused was charged for committing murder of employee of the complainant--- Accused-appellant pleaded guilty in response to the charge framed by the Trial Court---Accused filed application wherein he admitted the murder of deceased---Trial Court recorded the statement of accused on the day when charge was framed---Trial Court certified that the confession made by the accused was voluntary---On the same date, Trial Court convicted the accused and handed down the sentence of capital punishment---Admittedly, no evidence was recorded, in the present case, and the Trial Court had convicted and sentenced the accused solely because he had pleaded guilty in response to the charge---Reading of Ss.265-D & 265-E, Cr.P.C. together showed that the satisfaction of the Trial Court that the plea of guilt had been made voluntarily was implicit therein---Trial Court had shown haste in handing down the conviction and had not observed due care and caution required to ensure a fair trial and meeting of requirements of safe administration of justice---Trial Court did not exercise its discretion under subsection (2) of S.265-E, Cr.P.C. in accordance with the principles of safe administration of justice---Appeal was allowed by setting aside the impugned judgment and matter was remanded to the Trial Court for de novo trial.

Imran Ali v. The State 2018 SCMR 1372 rel.

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

----Ss. 265-D & 265-E---Plea of accused at the time of framing of charge---Scope---High Court observed that great care and caution were required in handing down a conviction leading to the sentence of death in cases where an accused pleaded guilty to a charge---Trial Court was to observe all the possible precautionary measures and provide sufficient opportunity to the accused taking the plea of guilty in order to be certain that it was voluntary and free from any influence whatsoever.

Muhammad Ismail v. The State 2017 SCMR 713 rel.

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

----S. 164---Confessional statement---Principles---Accused was to be in full senses and understanding the consequences of making a confession---Confession was not to be a result of any duress, coercion or any promise by the prosecution to be made an approver---High Court observed that during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure should be applied by the escorting police guard or incharge thereof---Actual facts were to be considered, which induced the accused to confess after facing trial, during which he pleaded innocence all the way---Court recording the confession had to ensure that the mental capacity of the accused was not diminished due to any illness and if some indication of abnormality was suspected by the court, it would be better to refer the accused to the Standing Medical Board to ascertain the true cause thereof---At the time of recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the Court---If needed, the counsel who represented the accused, might be given an opportunity to be present inside the court during the whole process, if the accused person, on asking by the Trial Court, so demanded---Handcuffs of the accused be removed and he be provided a chair on the dais---Sometime be given to accused to think over the making of the confession and in that regard particular questions be put to him as to why he was making the confession when he had already pleaded innocence and claimed trial at the time the formal charge was framed---Trial Court would explain to the accused that, in case of making confession, he had to face a capital sentence in a murder case or any offence punishable with death---Entire record of all the questions and answers recorded, was to be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Court that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that---If the Trial Court failed to observe such procedure and requirements then a statement made by an accused could not be treated as confession and, at best, it could only be treated as an admission---Such an admission could only be treated as a relevant fact and not a proof by itself.

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

----S. 164---Confessional statement---Scope---Voluntary and proved confession alone could be treated as proof of guilt against the maker thereof.

Barrister Mirza Shahzad Akbar for Appellant.

Niaz Barohi for the Complainant.

Malik Awais Haider, State Counsel.

2019 Y L R 2082

[Islamabad]

Before Aamir Farooq and Mohsin Akhtar Kayani, JJ

Mst. MARIAM alias MARIA alias SHAKEEBA---Appellant

Versus

The STATE and another---Respondents

Jail Appeal No.65 and Criminal Appeal No. 70 of 2013, decided on 22nd November, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused, who was holding a black colour bag, was apprehended being suspicious and on search of the said bag, total 12.5 kilograms charas packed in 10 packets wrapped in black chaddar was recovered---Sample parcels of 10 grams were prepared from the 10 packets for chemical examination, which later on proved to be charas garda---Record showed that neither the black color bag nor the black colour chaddar had been produced during the trial, which were parts of the recovery memo---One of the witnesses of recovery/Constable in his statement had confirmed that a black colour bag as well as black colour cloth was used, whereas the alleged packets of charas were wrapped in yellow scotch tape which was entirely different---Prosecution was bound to produce the case property allegedly being used in a criminal activity---Non-production of such incriminating piece of evidence, created a serious doubt, benefit of which was to be extended to the accused not as a matter of grace but as a matter of right---Circumstances established that prosecution had failed to prove the recovery of contraband from the accused and as such, accused was entitled for acquittal, especially when the incriminating articles had neither been exhibited by the prosecution nor even produced during the trial---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Amjad Ali v. The State 2012 SCMR 577; Abrar Hussain v. The State 2017 PCr.LJ 14; Agha Qais v. The State 2009 PCr.LJ 1334 and Mst. Nargis v. The State 1997 PCr.LJ 1093 rel.

Ms. Qurat-ul-Ain Ayesha for Appellant.

Sadaqat Ali Jahangir, State Counsel.

2019 Y L R 2171

[Islamabad]

Before Athar Minallah, C J and Miangul Hassan Aurangzeb, J

The STATE---Petitioner

Versus

AAMIR HUSSAIN SHAH---Respondent

Murder Reference No. 07 of 2015, decided on 13th May, 2019.

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

----S. 376--- Rape--- Appreciation of evidence---Accused was charged for committing rape with the victim---Victim was about ten years old at the time of the commission of offence---Accused and the victim were first cousins and victim was living with mother of accused who was her paternal aunt---Accused did not mention in his statement recorded under S.342, Cr.P.C regarding any ill will or acrimony towards him by the victim or her sister---Victim had entered the witness box and was subjected to extensive cross-examination, yet she remained consistent, credible and trustworthy---Complainant, who had no relationship with the victim or her family, was an independent witness, his statement corroborated the deposition of the victim---Un-scaled site plan of the crime scene also supported the testimony of the victim---Recoveries and depositions of other witnesses had also been found to lend support to the deposition of the victim---Medical evidence, recoveries and above all, testimonies of other uninterested witnesses lent support to and corroborated the plea of the victim---Nothing was on record to even remotely indicate that the victim or the other witnesses had any reason for falsely implicating the accused---Prosecution had succeeded in proving its case beyond a reasonable doubt, in circumstances---High Court observed that accused had indeed committed a most heinous offence and there could be no redemption or compensation for the victim because she would have to live with the worst scars that one could imagine---No mitigating circumstances were available in order to consider handing down a lesser sentence---Appeal was dismissed accordingly.

Mujeeb ur Rehman v. The State 2018 YLR 389; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Malik Sher Muhammad and another v. Malik Khair Muhammad and 4 others 2018 YLR 110; Tariq Pervez v. The State 1995 SCMR 1345; Gulfam and another v. The State 2017 SCMR 1189; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Zafar Iqbal and another v. The State 2016 YLR 1891 ref.

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

----S. 376---Qanun-e-Shahadat (10 of 1984), Art. 3---Child witness---Rape---Appreciation of evidence---Statement of victim, a minor---Scope---Defence had objected that victim was a child witness and she could have been tutored or influenced by elders, hence it would not be safe to rely on her testimony as child witness---Validity---Article 3 of the Qanun-e-Shahadat, 1984 contemplated that all persons were competent to testify unless the court considered that they were prevented from understanding the questions put to them or from giving rational answers to those questions by tender or extreme old age, disease, whether of body or mind, or any other cause of the same nature---Child witness, in circumstances, was not barred from entering the witness box---Satisfaction of the trial court was of crucial importance in such cases---Child who also happened to be a victim of an offence was competent to testify as a witness and such deposition would be worthy of reliance provided the court was satisfied that he or she, as the case may be, was intelligent and understanding the significance of entering the witness box.

Muhammad Afzal v. The State PLD 1957 (WP.) Lah. 788; Sultan and another v. The State PLD 1965 Kar. 615; Abdullah Shah v. The State 1968 SCMR 852; Ameer Umar v. The State 1976 SCMR 338; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Muhammad Jamal and others v. The State 1997 SCMR 1595; Mst. Razia alias Jia v. The State 2009 SCMR 1428; Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042; Mushtaq Ahmed and another v. The State 2007 SCMR 473 and Ulfat Hussain v. The State 2010 SCMR 247 rel.

(c) Criminal trial---

----Witness---Child witness---Statement of a minor---Reliance---Scope---Conviction could be handed down placing reliance on the sole testimony of a child witness but as a rule of prudence it was generally preferred that it should be corroborated by some other evidence so as to ensure the safe administration of justice.

Barrister Ahsan Jamal Pirzada for Appellant (in Jail Appeal No.76 of 2015).

Imtiaz Ahmad Somro for the Complainant/Respondent.

Malik Awais Haider, State Counsel.

2019 Y L R 2219

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

MOAZ WAQAR and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 115, 126, Jail Appeal 114 and Murder Reference No.6 of 2016, decided on 26th February, 2018.

(a) Criminal trial---

----Last seen evidence--- Scope---Requirements of last seen evidence is to prove that witness has seen the deceased in company of the accused and identifies accused in court or during identification parade or the witness claims to know accused otherwise from his credentials or his personal information.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Recovery of dead body and other material---Proof---Both accused persons faced trial and were convicted by Trial Court with one sentenced to death while the other for imprisonment for life---Prosecution did not produce maker of recording preserved in USB Storage before Trial Court nor investigating officer recorded statement of any person who had recorded video or prepared that USB Storage---Such was necessary evidence to be corroborated therefore, USB Storage had no evidentiary value for purpose of capital punishment---Such evidence could not be used even as incriminating material against other accused person---Evidence of Hotel Manager was also not in accordance with law to be considered as valid piece of evidence to be relied upon---Motive of occurrence was shrouded in mystery---SMS, CDR were not justified---Allegation of abduction was just an opinion of complainant---Even car allegedly used in incident was not linked in entire case---Recovery of dead body was disbelieved and complainant never disclosed details of jewelry at time of registration of FIR---Complainant tried to improve her case through supplementary statement in order to link the appellant with crime but no concrete evidence was brought on record---Place of recovery was already in knowledge of prosecution witness who had already reached at dead body prior to identification and pointing of dead body by one of the accused---House of one of accused remained open and inhabited and same house was used for four different occasions for purpose of recovery and same was not admissible in evidence---High Court set aside conviction and sentence awarded by Trial Court as prosecution failed to discharge onus regarding murder, resultantly accused were acquitted of the charge---Appeal was allowed in circumstances.

Asfandyar and another v. Kamran and another 2016 SCMR 2084; Muhammad Safeer and another v. The State and others 2017 PCr.LJ 1435; Kabir Shah v. The State through Advocate General and another 2016 YLR 1291; Khalid Javed and another v. The State 2003 SCMR 1419; Amin Ali and another v. The State 2011 SCMR 323; Kabir Shah v. The State through Advocate General, Khyber Pakhtunkhwa and another 2016 YLR 1291; Muhammad Safeer and another v. The State and another 2017 PCr.LJ 1435; Aurangzeb alias Guddu v. The State 2017 PCr.LJ 699 and Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 ref.

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

----Art. 40---Recovery on disclosure---Scope---Any recovery cannot be a discovery in terms of Art. 40 of Qanun-e-Shahadat, 1984 if place is already known to investigating officer and other recoveries were also taken into possession from that place.

Shajjar Abbas Hamdani for Appellant (in Criminal Appeal No. 115 of 2016).

Syed Mohammad Tayyab and Ch. Wajahat Elahi for the Complainant (in Criminal Appeal No. 115 of 2016).

Haider Mehmood Mirza for Appellant (in Criminal Appeal No. 126 of 2016).

Syed Mohammad Tayyab and Ch. Wajahat Elahi for the Complainant (in Criminal Appeal No. 126 of 2016).

Haider Mehmood Mirza for Appellant (in Jail Appeal No. 114 of 2016).

Sadaqat Ali Jahangir, State Counsel (in all cases).

Shajjar Abbas Hamdani for Respondent (in Murder Reference No. 6 of 2016).

Date of hearing: 29th January, 2018.

2019 Y L R 2569

[Islamabad]

Before Miangul Hassan Aurangzeb, J

FARRUKH NISAR---Appellant

Versus

ISRAR AHMED---Respondent

R.F.A. No.142 of 2016, decided on 12th September, 2017.

Civil Procedure Code (V of 1908)--

----O. XXXVII, Rr. 2, 3 & Appendix B, Form No. 4---Limitation Act (IX of 1908), Art. 159---Summary suit on the basis of cheque---Application for leave to appear and defend---Limitation--- Commencement of--- Proceedings conducted during stay order---Effect---Application for leave to defend the suit was dismissed being time barred and suit was decreed---Validity---Summonses in summary suit were required to be in Form No. 4 of Appendix B, C.P.C.---Where a copy of the plaint was not served on the defendant at the time of affecting service of summons then it could not be held that defendant was properly served---Period of limitation under Art. 159 of Limitation Act, 1908 for filing an application for leave to appear and defend the suit could not be computed from the date of service of summons without a copy of the plaint---Limitation of ten days for filing application for leave to appear and defend a summary suit would commence when summonses were served on the defendant---Defendant, in the present suit, was not served with summons---Purpose of issuing summons to the defendant was that he should gain knowledge of pendency of a suit against him, tender his appearance and defend the proceedings---Once defendant had gained knowledge of the suit then he should take steps to obtain copy of the plaint---Stay order would operate from the day it was issued---If proceedings before a Court or Tribunal had been stayed by a higher forum then order passed by such a Court or Tribunal during the subsistence of the stay order was coram-non-judice, without jurisdiction and void---Impugned judgment and decree having been passed after stay of proceedings by the High Court, were set aside, in circumstance---Matter was remanded to the Trial Court for decision afresh---Appeal was allowed, accordingly.

Binyameen Khalil v. Riaz Ahmed Rahi 2014 CLC 105; Khushi Muhammad v. Muzammal Khatoon 2014 YLR 1779; Ameer Ali v. Khuda Bux 2016 MLD 206; Shafaqat Mehmood v. Muhammad Nazir 2014 CLC 1222; Junaid Iqbal Butt v. Muhammad Babar Shahzad 2012 YLR 1694; Muhammad Anwar v. Muhammad Akbar PLD 2000 SC 52; Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR 127; Aamir Khurshid Mirza v. The State 2006 CLD 568 = 2005 YLR 3059; Nand Kishore v. Shadi Ram AIR 1926 Allahabad 457; Karam Ali v. Raja PLD 1949 Lah. 100; Syed Nazir Ahmad v. Syed Muhammad Saeed PLD 1955 Lah. 34; Mst. Ramzan Bibi v. Mst. Amina Bibi PLD 1970 Lah. 371; Abdur Rashid Khan v. Nasim Akhtar 1974 SCMR 509; Haji Abdul Jalil v. Javed Ahmad 1983 SCMR 869; Popalzai v. District and Sessions Judge, Karachi 1984 CLC 630; The State v. Sajjad Hussain 1993 SCMR 1523 and Mst. Iqbal Begum v. Additional Commissioner (General) 2002 MLD 975 rel.

Sheikh Muhammad Sulaman, for Appellant.

Waqar Hanif Abbasi for Respondent.

2019 Y L R 2596

[Islamabad]

Before Miangul Hassan Aurangzeb, J

HAYAT ULLAH BARKI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, WEST, ISLAMABAD and others---Respondents

Writ Petition No. 980 of 2016, decided on 17th March, 2016.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 17(8) & 17(9)---Ejectment of tenant---Arrears of rent, non-payment of---Effect---Rent Controller passed order for deposit of arrears of rent but same were not deposited and eviction petition was accepted---Validity---Tenant had not deposited arrears of rent and Rent Controller was left with no discretion but to pass an order under S. 17(9) of Islamabad Rent Restriction Ordinance, 2001---Order passed by the Rent Controller for deposit of arrears of rent was in accordance with law---Tenant could not continue to occupy the demised premises---Tenant had failed to comply with the order of Rent Controller passed under S. 17(8) of Islamabad Rent Restriction Ordinance, 2001---Constitu-tional petition was dismissed in limine.

Mushtaq Ahmad Kiani v. Bilal Umair 2009 SCMR 1008; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Bilal Abid v. District Judge (West) Islamabad 2015 YLR 2405; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52 and Major (R) Shakil-ud-Din Ahmad v. Addl. District Judge, Islamabad 2007 CLC 601 rel.

2019 Y L R 2759

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syed NAVEED RAZA HUSSAIN---Petitioner

Versus

CHIEF COMMISSIONER, ISLAMABAD and others---Respondents

Writ Petition No. 2665 of 2019, heard on 29th July, 2019.

Cooperative Societies Act (VII of 1925)---

----Ss. 43 & 64-A--- Islamabad Capital Territory Cooperative Societies (Managing Committees Election) Rules, 2014, Rr. 3 & 16--- Islamabad Cooperative Societies Rules, 2018, R.53---Cooperative societies elections--- Rejection of nomination papers--- Inquiry, conducting of--- Effect--- Petitioner was a contestant for elections and was aggrieved of rejection of his nomination papers by Chief Commissioner on ground of inquiries being conducted against petitioner for corrupt practices and embezzlement--- Validity--- Grounds on which petitioner was disqualified from contesting election were that there were two inquiry reports under S. 43 of Cooperative Societies Act, 1925 against him--- Findings against petitioner in inquiry reports could not be equated with a sentence of imprisonment by a criminal court against petitioner so as to disqualify him from contesting elections--- High Court set aside order to extent of holding that petitioner was disallowed to contest elections---Constitutional petition was allowed accordingly.

Ghazanfar Ali v. Appellate Authority/Additional District Judge, Sahiwal PLD 2016 SC 151; Muhammad Mujtaba Abdullah v. Appellate Authority/Additional Sessions Judge, Tehsil Liaquatpur, District Rahim Yar Khan 2016 SCMR 893; Muhammad Nasir Cheema v. Election Commission of Pakistan PLD 2018 Lah. 784; Haji Ghulam Hussain v. Returning Officer Zilla Council, Bahawalpur and others 1998 MLD 1948 and Rehmatullah alias Pappu v. The State 2015 PCr.LJ 1148 rel.

Asif Mumtaz Malik for Petitioner.

Naseem Ahmed Shah for Respondents Nos.1 and 2.

Najam uz Zaman for Respondent No.5.

2019 Y L R 2816

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Hafiz MUHAMMAD SAEED---Petitioner

Versus

Mst. GULZAR BEGUM and another---Respondents

C. R. No. 455/D of 2010, decided on 9th May, 2019.

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

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for declaration and possession---Fraud---Proof of---Requirements---Transaction between family members---Scope---Plaintiff-wife filed suit for declaration whereas defendant-husband instituted suit for possession of suit property---Contention of plaintiff was that transfer of suit property in favour of defendant was based on fraud---Suit filed by the plaintiff-wife was dismissed whereas that of defendant-husband was decreed by the Trial Court but Appellate Court decreed the suit of wife and dismissed that of defendant---Validity---Burden of proving fraud was on the party who had alleged the same---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence-inspiring evidence---Mere allegations in the pleadings could not partake proof required under the law---Transactions for transfer of properties in the record of Capital Development Authority in accordance with procedure for such transfer between family members should be given due sanctity---Any family member who was a party to such transfer assailing such transaction on the ground of fraud or forgery must come with cogent and unimpeachable evidence to be successful in his endeavor---Plaintiff in her evidence had not given any particulars of fraud allegedly played on her by her husband for transfer of suit property from her name---Nothing was on record that signatures for transfer of suit property in favour of defendant were forgeries---Plaintiff did not make effort to have her signatures on the documents in question forensically examined in order to prove that same were forged---Plaintiff had failed to impeach the transaction as to transfer of suit house from her name to that of defendant on ground of fraud---Defendant-husband was owner of suit property---Impugned judgment and decree passed by the Appellate Court were not sustainable, in circumstances---Suit for declaration was dismissed whereas that of possession was decreed, in circumstances---Revision was allowed accordingly.

Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209; Muhammad Bakhsh and 4 others v. Province of Punjab through District Collector, Multan (now Lodhran) and 2 others 1994 SCMR 1836; Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and 6 others 2010 SCMR 786; Mst. Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal Heirs 1999 SCMR 1171; Yaqoob and others v. Nazir Ahmed Khan and others PLD 2008 Lah. 233; Sarbaland and others v. Ghulam Fatima and others 1996 MLD 948; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Khushi Muhammad v. Mst. Zainab Bibi 1981 SCMR 814; Mst. Fazal Begum v. Municipal Corporation Lahore 1983 CLC 1643; Umar Din v. Muhammad Anwar 2003 YLR 67; Muhammad Nawaz Minhas v. Mst. Surriya Sabir Minhas 2009 SCMR 124; Ch. Ghulam Rasool v. Mst. Nusrat Rasool PLD 2008 SC 146; Muhammad Arif v. Haji Waheed ul Haq 2017 YLR 224; Muhammad Afzal v. Muhammad Zaman PLD 2012 Lah. 125; Shehnaz Bibi v. Muhammad Ikhlaq Khan 1996 MLD 1060; Abdur Rehman v. Mst. Majeedan Bibi 2017 SCMR 1110; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Ghulam Farid v. Sher Rehman 2016 SCMR 862; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941 and Khanas Khan v. Sabir Hussain Shah 2004 SCMR 1259 ref.

Ghulam Murtaza v. Mst. Asia Bibi PLD 2010 SC 569; Mst. Sadia Andaleeb v. Mst. Farzana Zia and others PLD 2019 Isl. 280; Irshad Hussain v. Ijaz Hussain PLD 1994 SC 326; Muhammad Tufail v. Muhammad Aslam Khan 1999 YLR 934; National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Aisha Bai v. Usman Muhammad PLD 1967 Kar. 733; Ahsan Ali v. District Judge PLD 1969 SC 167; Shamir v. Faiz Elahi 1993 SCMR 145; Nasira Khatoon v. Mst. Aisha Bai 2003 SCMR 1050; Noor Jahan v. Bostan 1976 SCMR 486; Punjab National Bank Limited v. Dr. A.B. Arora AIR 1933 Lahore 1024; Mst. Kausar Haseen v. Mst. Anees Begum 1988 MLD 522 and Bashir Ahmad v. Muhammad Bakhsh PLD 2016 Lah. 130 rel.

(b) Pleadings---

----Significance.

Pleadings of the parties are not evidence, and facts alleged in the pleadings must be proved through evidence adduced by or on behalf of the party who had claimed the existence of such facts. Mere averments and pleadings are of no value and cannot be relied upon unless proved through cogent evidence.

Syed Asghar Hussain Sabzwari and Sheikh Khizar-ur-Rasheed for Petitioner.

Ch. Imran Hassan Ali for Respondents.

2019 Y L R 2894

[Islamabad]

Before Miangul Hassan Aurangzeb, J

YASIN KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE NO.VII, DISTRICT JUDGE WEST, ISLAMABAD and 2 others---Respondents

Writ Petition No. 2742 of 2018, decided on 2nd August, 2019.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Eviction of tenant---Denial of relationship of landlord and tenant by the tenant---Landlord having Iqrarnama of demised premises---Dispute of title---Rent Controller, jurisdiction of---Eviction petition was dismissed on the ground that relationship of landlord and tenant did not exist between the parties---Validity---Rent Controller could exercise jurisdiction if there was pre-existing relationship of landlord and tenant between the parties---Eviction order passed by the Rent Controller against the person in possession of the premises who was not a tenant would be without jurisdiction---If a person in possession of premises was not a tenant then the owner of said premises would be entitled to institute a suit for ejectment in the Civil Court---Provisions of Islamabad Rent Restriction Ordinance, 2001 were attracted only where a person in possession of the premises was a tenant---If tenant had denied the relationship of landlord and tenant then Rent Controller should determine such question through enquiry or recording of evidence as he might deem appropriate---Simple denial of relationship of landlord and tenant could not oust the jurisdiction of Rent Controller---If Rent Controller had decided that there was no relationship of landlord and tenant then proceedings should be terminated without deciding the main question of eviction---No lease agreement executed between the parties was on record---Nothing was on record that petitioner was owner of rented premises---Rent Controller could not determine the disputed question of title---Such questions had to be determined by Courts of plenary jurisdiction---Payment of rent was a sine qua non for the relationship of landlord and tenant---Petitioner had failed to prove that respondent had paid rent to him at any stage---Petitioner was bound to prove the existence of relationship of landlord and tenant between the parties---Impugned orders passed by the Courts below did not suffer from jurisdictional errors---Constitutional petition was dismissed, in circumstances.

Shaukat Ali v. Muhammad Bashir 2017 CLC 158 and Ahmed Yar v. Additional District Judge 2015 YLR 2476 distinguished.

Fareed ud Din Masood v. Additional District Judge, Bahawalpur 2019 SCMR 842 and Nasira Afridi v. Muhammad Akbar 2015 MLD 171 rel.

Sardar Anzar Iqbal Khan for Petitioner.

Muhammad Ayyaz Gondal for Respondent No.3.

2019 Y L R 3

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

MOHSIN RAZA and others---Appellants

Versus

The STATE---Respondent

Spl. Crl. A.T.A. Nos.4, 5 of 2010 and Confirmation Case No.2 of 2010, decided on 25th April, 2018.

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

----Ss. 302, 367-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Qatl-i-amd, kidnapping for ransom, common intention---Appreciation of evidence---Benefit of doubt---Prosecution witness, who posed to be eye-witness, was an interested witness---Said witness allegedly paid ransom amount to accused, but did not communicate such fact either to area Police or brother of the deceased---Said witness, nowhere in his statement recorded under S.161, Cr.P.C. provided "hulia", (height and description) of accused, who alleged to have received ransom amount---Testimony of said witness was not trustworthy, not inspiring confidence---Said witness also failed to produce any Daily Diary entry of Police Station regarding missing of deceased---All said aspects of the case, cast reasonable doubt, while applying judicious mind in the testimony of said witness---Unexplained delay of eight hours was in lodging of FIR---Evidence of said witness was also hearsay---Confessional statement of accused was recorded eight days after the arrest---Crime weapon i.e. 30 bore pistol together with live bullets, allegedly recovered from accused persons, were sent to Forensic Science Laboratory after delay of twenty days, which cast serious doubts in the judicious mind---Forensic Science Laboratory's report with regard to blood-stained clothes of the deceased reflected that same was stained with human blood, but question would arise that whether it was of the same blood group which was available on the clothes of victim and the blood-stained earth---No mashirnama of recovery of car, from the Diggi of which dead body of the deceased was allegedly recovered had been prepared by the Investigating Officer, nor it was producted before the Trial Court to ascertain the veracity of said car---No explanation had been offered by the Investigating Officer for non-preparation and non-production of such Mashirnama---Place of arrest of accused persons was situated in a thickly populated area, but Investigating Officer failed to associate an independent source to strengthen prosecution case by collecting an independent evidence---Star eye-witness, Forensic Science Laboratory's report and medical evidence having not been believed, there was no need to reappraise the evidence of remaining witnesses who were police officials---Series of contradictions were depicted from the statements recorded under S.161, Cr.P.C. and the evidences recorded before court below---Prosecution story was not free of reasonable doubt---Occurrence being unseen, accused persons were convicted only on the basis of statement of complainant and prosecution witnesses, who were interested, related inter se, was not justified---Prosecution having failed to prove its case against accused persons, beyond any reasonable doubt, conviction and sentence awarded to accused persons under impugned judgment, were set aside---Accused were acquitted of the charge and were released forthwith.

2007 SCMR 670; 2015 SCMR 423; 2017 SCMR 898; 2010 SCMR 1009; 2011 SCMR 629; 1971 (3) SC Cases 208; 2011 SCMR 769; 2010 SCMR 1706; 2008 SCMR 1572; 1969 SCMR 390; 2000 SCMR 1038; 2004 SCMR 1185; PLD 1996 SC 1; 1995 PCr.LJ 159; 2013 PCr.LJ 1300; 2000 PCr.LJ 264; 2002 PCr.LJ 34; 2003 MLD 685; 2011 SCMR 1127; 2013 PCr.LJ 1847; 2011 SCMR 323; 2013 MLD 1573; 2013 MLD 1675; 1991 MLD 752; 1999 MLD 1460; 1999 MLD 1513; 1999 SCMR 2841; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Iqbal v. The State PLD 1996 Lah. 402; Muhammad Ibrahim v. The State PLD 2000 Kar. 128; Mst. Roshan Bibi and another v. The State 2007 PCr.LJ 1792; Akhtar Muhammad v. The State 1985 PCr.LJ 1118; Ali Sher and others v. The State 2008 SCMR 707; Muhammad Asif v. The State 2017 SCMR 486; Tayyab Hussain Shah v. The State 2000 SCMR 683 and Ghulam Murtaza v. The State 2010 PCr.LJ 461 ref.

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

----S. 302---Medical evidence---Scope---Medical evidence, could furnish corroboration but would not establish the identity of the assailant or to connect accused with crime.

Mehmood Ahmad and 3 others v. The State 1995 SCMR 127 ref.

(c) Criminal trial---

----Benefit of doubt---If a single doubt would create reasonable doubt in prudent mind, its benefit would go in favour of accused.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Abdul Razzak and Anwar Ali Shah for Appellants (in Spl. Crl. A.T.A. No.4 of 2010).

Muntazir Mehdi Memon, Deputy Prosecutor General for the State (in Spl. Crl. A.T.A. No.4 of 2010).

Mehmood-ul-Hassan and Mrs. Mumtaz Chandio for Appellant (in Spl. Crl. A.T.A. No.5 of 2010).

Muntazir Mehdi Memon, Deputy Prosecutor General for the State (in Spl. Crl. A.T.A. No.5 of 2010)

Abdul Razzak and Anwar Ali Shah for Appellant (in Confirmation Case No.2 of 2010).

2019 Y L R 51

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUNIR HUSSIAN alias MUNAWAR alias MUNO---Appellant

Versus

The STATE---Respondent

Cr.J.A. No. D-215 of 2017, decided on 1st August, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that two slabs of charas weighing two kilograms and Rs. 200 were recovered from the possession of the accused, out of each slab 100 grams were separated for chemical examination---Place of recovery was a shrine but the complainant and mashirs had stated that during the process of proceedings of arrest and preparation of mashirnama, none attracted at the place of recovery---Investigating officer went to the place of incident at about 3.15 p.m., but did not associate any private person to act as mashir and cited police officials as mashirs---Said facts showed that Investigating Officer either deliberately had not cited any private person as mashir or had completed all the formalities at police station, which created serious doubt---Complainant had deposed that some words were written over the packet of charas but mashirnama was silent on description---Complainant had admitted that he had not mentioned that fact in the mashirnama---First Information Report or the mashirnama had not mentioned the denomination of currency notes, which made the case of the prosecution as doubtful---Mashir was declared hostile by the Prosecutor and with the permission of the court, witness was cross-examined and during cross-examination by the Prosecutor, he had deviated from his first version and admitted all the suggestions made by the prosecutor---Many contradictions existed in the evidence of the prosecution witnesses---Complainant had deposed that they consumed 35/40 minutes in respect of arrest of accused and recovery and preparation of mashirnama on the spot, whereas the witness deposed that they consumed about 15/20 minutes in the whole proceedings---Prosecution, in circumstances, had failed to prove its case on the point of safe custody---Neither any entry of Malkhana register had been produced by the witnesses in their evidence nor prosecution had examined incharge of the Malkhana---Prosecution had not examined Head Constable through whom case property was sent to the Chemical Examiner---Circumstances established that prosecution had failed to discharge its liability of proving the guilt of the accused beyond shadow of doubt, benefit of which would be extended to the accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

(b) Administration of justice---

----No one could be construed into a crime unless his guilt was proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence.

Ayub Masih's case PLD 2002 SC 1048 rel.

(c) Criminal trial---

----Witness---Police Official as witness---Reliance---Scope---Police witnesses were as good and equal as other independent witnesses---Conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy---If such qualities were missing in their evidence, no conviction could be passed on the evidence of police witnesses and accused could be entitled to the benefit of doubt.

(d) Criminal trial---

----Benefit of doubt---Principle---If there was a circumstance, which created reasonable doubt in a prudent mind about the guilt of accused then accused would be entitled 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 rel.

Bakhshan Khan Mahar for Appellant.

Zulfiqar Ali Jatoi Addl P.G. for Respondent.

2019 Y L R 76

[Sindh]

Before Muhammad Ali Mazhar, J

KARACHI CUSTOMS AGENTS ASSOCIATION through General Secretary---Plaintiff

Versus

PROVINCIAL ASSISTANT REGISTRAR and 4 others---Defendants

Suit No.2132 of 2017, decided on 22nd May, 2018.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance, declaration and injunction---Interim injunction---Re-counting of votes---Plaintiff, a non-profit Association registered under Companies Ordinance, 1984 assailed election results of the Association and sought recounting of votes---Validity---Defendants neither raised any allegation of rigging, fraudulent means or corrupt practices nor any allegation against election commission for any rigging or unfair means---Mere allegation of manipulation in final results without any evidence could not be accepted---On the basis of unreliable oral evidence which was unsubstantiated by any credible independent evidence and in absence of cogent evidence it would be unjust and unfair to unseat a returned candidate and disenfranchise all Association members---High Court directed the authorities to recount all votes under the supervision of official of the High Court , so as to meet ends of justice, fair play and to satisfy conscience, misgivings and reservations of defendants---High Court declined to form interim set up and then hold fresh elections for which concerned authority was engaged in communication and also conveyed his wishes to plaintiff Association in a slipshod manner without holding any inquiry to election process---Application was allowed accordingly.

Syed Khaliq Shah v. Abdul Raheem Ziaratwal PLD 2017 SC 684; Jam Madad Ali v. Asghar Ali Junejo 2016 SCMR 251; Lucky Cement Ltd. v. Commissioner Income Tax 2015 CLD 1482; Messrs Kingsway Capital LLP v. Murree Brewery Co. Ltd. 2017 CLD 587 and Marriage Hall Association v. Chairman Central Board of Revenue, Islamabad 1998 CLC 33 ref.

Ghulam Hyder Shaikh for Plaintiff.

Muhammad Amir, General Secretary of Plaintiff.

Taimur Ali Mirza for Defendants Nos.4 and 5.

Zia-ul-Haq Makhdoom and Mueen Qamar for Defendant No.2.

Usman Tufail Shaikh for Defendant No.3

Ms. Rakshanda Waheed, State Counsel.

Syed Ibad and Saad-ur-Rasheed Abbasi, Law Officers of SECP.

Junaid Ahmed, Provincial Assistant Registrar (Defendant No. 1).

Muhammad Asif Mehmood, Chief Election Commissioner (Defendant No.3).

2019 Y L R 89

[Sindh]

Before Syed Hasan Azhar Rizvi and Khadim Hussain Tunio, JJ

IQBAL AHMED---Appellant

Versus

Col. (R) ABDUL KABIR through duly constituted lawful attorney---Respondent

H.C.A. No.249 of 2017, decided on 8th August, 2018.

Specific Relief Act (I of 1877)---

----Ss. 10, 12 & 54---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell, possession and permanent injunction---Time, essence of contract---Breach of contract---Proof---Plaintiff entered into an agreement to purchase a residential apartment owned by defendant for which earnest money was given at the time of agreement and remaining amount was to be paid on date specified in the agreement---Defendant could not provide documents of suit property till date agreed by parties---Plaintiff filed suit for specific performance of agreement against defendant but same was dismissed by Single Judge of High Court---Validity---Both parties had attempted to shift blame on to the other and had maintained that they were ready to fulfil their respective part of agreement---No notice whatsoever was given by defendant to plaintiff, calling upon him to complete execution and registration of sale deed in his favour by expressing his readiness to perform his part of contract---No provision existed in agreement for its cancellation by either of the parties---By ignoring admission of defendant in respect of agreement to sell, terms and conditions thereof, and in disregard of the fact that defense set up by defendant was never in relation to willingness of plaintiff, rather it was related to plea that time was essence of contract---Division Bench of High Court set aside judgment and decree passed by the Single Judge of High Court and suit was decreed in favour of plaintiff---High Court Appeal was allowed accordingly.

[Case-law referred].

Mushtaq A. Memon and Qazi Shunail Ahmed for Appellant.

Murtaza Wahab Siddiqui for Respondent.

2019 Y L R 121

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Mir NASRULLAH KHAN and another--Applicants

Versus

Mst. KHAIRUNNISA and 7 others---Respondents

Civil Revision No.06 of 2014, decided on 18th April, 2018.

Gift---

----Limitation---Sale of suit land to third party---Scope---Plaintiff had contended that his grandfather had gifted the property to him and his grandmother; gift was made when he was minor; he and his grandmother had no knowledge about the gift made in their favour and he came to know about the gift 16 years after attaining of majority---Plea of defendants was that grandmother of plaintiff had sold the property through her attorney and the suit was barred by limitation---Trial Court rejected the plaint being barred by limitation and laches---Appellate Court dismissed the appeal---Validity---Held, suit property was gifted to grandmother of plaintiff, who herself had appeared before the authorities and accepted the gift, whereafter, she appointed attorney in respect of suit property, who while operating under the said power of attorney sold out the property to defendants---Plaintiff had filed the suit after sixteen years of attaining majority his claim to the suit property was rightly rejected in circumstances.

2019 Y L R 129

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Mohammed Karim Khan Agha, J

Syed ALI RAZA and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Islamabad and others---Respondents

C.Ps. Nos. D-6761, D-6502, D-6705 and 6956 of 2017, decided on 28th December, 2017.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Corruption and corrupt practices---White collar crime---Bail---Principles---Cases of white collar crime are generally of an intricate and complex nature and whole transaction and each component part of scam needs to be viewed in a holistic manner and not in isolation---In most cases offence cannot be committed without active involvement of all accused in chain of events which leads to commission of offence---In cases of bail each of accused needs in some way to be connected with alleged offence.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Medical grounds---Scope---Cardiac and mental ailment---Treatment in jail---Availability---Effect---Accused was Bank official who was arrested by NAB for misusing his authority and causing loss to the Bank---Accused sought his release on bail on plea of his cardiac ailment---Validity---Cardiac reports were self-explanatory and did not qualify accused for grant of bail on medical grounds as they clearly opined that accused could be treated in jail hospital or no hospitalization was required---Bail on medical grounds was not available to petitioner in respect of his cardiac problems---Bail on medical grounds could only be granted in cases relating to mental health issues in exceptional cases and under exceptional circumstances---Medical reports and particular ailments suffered by accused were common to most of prisoners as he had no previous history of mental illness---Illness of accused could be managed and treated in jail hospital with necessary medication as opined in psychiatric medical report---Bail petition was dismissed in circumstances.

Haji Mir Aftab v. The State 1979 SCMR 320; Malik Muhammad Yousufullah Khan v. The State and another PLD 1995 SC 58; Maqsood v. Ali Muhammad and another 1971 SCMR 657; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Mawasi Khan v. The State 1969 SCMR 289; Mian Manzoor Ahmed Watto v. State 2000 SCMR 107; The State v. Haji Kabeer Khan PLD 2005 SC 364; Khalid Humayun v. NAB PLD 2017 SC 194; Rai Mohammed Khan v. NAB 2017 SCMR 1152 and Kifayatullah v. Federation of Pakistan 2017 PCr.LJ 192 ref.

(c) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi), 9(b) & 31-D---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---New ground---Scope---Petitioners were Bank officials who were arrested by NAB for misusing their authority and causing loss to the Bank---Pre-arrest bails of all petitioners were dismissed and on the same grounds they sought bails after arrest---Validity---When High Court recalled pre-arrest bail of petitioners, case of each petitioner was dealt on merits and found that there was sufficient material on record to connect petitioners to offence for which they were charged---Petitioners should have shown some new ground for their bail application or a ground which was not available at the time when their pre-arrest bail was argued---Prima facie there was sufficient material to link the petitioners to commission of offense for which they were charged---Bail was refused in circumstances.

The State v. Zubair PLD 1986 SC 173 rel.

(d) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi), 9(b) & 31-D---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Imprudent Bank loan---Scope---Petitioner was President of a Bank who was arrested by NAB for misusing his authority and causing loss to the Bank---Plea raised by petitioner was that Governor State Bank of Pakistan did not file any reference under S.31-D of National Accountability Ordinance, 1999---Validity---Held, it was not a case under S. 31-D of National Accountability Ordinance, 1999 in respect of imprudent Bank loans but was a case on part of accused of misuse of authority and/or case of failure to exercise authority which led to a loss of millions of US dollars to the Bank---Prosecution witness had fully implicated petitioner in his illegal acts and prima facie there was sufficient material to link him to commission of offence for which he was charged---Bail application was dismissed in circumstances.

Haider Waheed for Petitioner No.1 (in C.P. No.D-6761 of 2017).

Muhammad Azam Chughtai for Petitioner No.2 (in C.P. No.D-6502 of 2017).

Shah Khawer for Petitioner No.3 (in C.P. No.D-6705 of 2017).

Sahibzada Muzaffer Ali for Petitioner No.4 (in C.P. No.D-6956 of 2017).

Yassir Siddiqui, Special Prosecutor, NAB for Respondents.

2019 Y L R 157

[Sindh]

Before Muhammad Saleem Jessar, J

Mir SHAKIL UR RAHMAN and another---Applicants

Versus

Rai MUHAMMAD ASAD KHAN and another---Respondents

Criminal Revision Application No.S-26 of 2018, decided on 26th April, 2018.

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

----S.200---Private complaint---Duty of court---Scope---While dealing with a private complaint, at the initial stage, court had only to see as to whether a prima facie case had been made out by the complainant for issuing further process in the matter or not---No detailed inquiry was warranted at such stage.

Noor Muhammad v. The State and others PLD 2007 SC 9 and Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 rel.

(b) Administration of justice---

----Every case was to be decided on its own peculiar circumstances and facts.

(c) 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---Inherent powers and jurisdiction of High Court---Scope---Prosecution case was that the applicants got published a news with mala fide intention to defame and disrepute the respondent---Respondent filed private complaint against the applicants, which was admitted by the Trial Court for regular hearing and notices were issued in the name of petitioners for appearance---Applicants challenged the order for summoning them---Validity---Record showed that Trial Court after completion of codal formalities, had brought the complaint on record---Trial Court, after registering the case, took cognizance of the same and issued bailable warrants against the applicants---Applicants without approaching the Trial Court or availing remedy available under the law, had directly approached the High Court which was not permissible---In the present case, only process had been issued to the applicants for their appearance in the court and at the trial stage, they would be afforded sufficient opportunity of hearing to disprove the allegations levelled by respondent in the direct complaint---Besides, other remedies admissible under the law would also be available to them for initiating appropriate proceedings against the complainant and also for awarding compensation to them, if it was found and concluded that the complaint was frivolous and vexatious and had been filed with ulterior motive to victimize the applicants---Applicants had, prima facie, by-passed the ordinary legal course available to them provided under the Cr.P.C.---No exceptional circumstances having been placed to justify departure from normal course, inherent jurisdiction vested under S.561-A, Cr.P.C. could not be exercised which otherwise would amount to interrupt and divert the ordinary criminal procedure---Circumstances established that no jurisdictional error or material illegality and irregularity in the impugned order was found, which warranted interference---Revisional application was dismissed accordingly.

Ghaus Khan v. The State 1993 PCr.LJ 764; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904; Waqar Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others PLD 2011 SC 181; Noor Muhammad v. The State and others PLD 2007 SC 9; Mst. Jameela and another v. Muhammad Arshad and another 1993 PCr.LJ 993; Director General, Anti-corruption Establishment, Lahore, and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Muhammad Ayoub Sorathia and 2 others v. The State 2017 YLR Note 262; M. Anwar, Bar-at-Law Advocate-General West Pakistan v. Saadat Khayali, Chief Editor, Printer and Publisher of the Daily Hallat and others PLD 1963 (W.P.) Lah. 323; K.M. Mathew v. K.I.A. Abraham and others AIR 2002 SC 2989; Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 and The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 ref.

Director General, Anti-corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 and Noor Muhammad v. The State and others PLD 2007 SC 9 rel.

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

----S. 439---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction could not be used for interrupting or subverting the normal criminal proceedings unless order was found tainted with miscarriage of justice.

Muhammad Saleem Mangrio for Applicants.

Hayat Muhammad Junejo for Respondent No.1.

Muhammad Iqbal Awan, D.P.G. for the State.

2019 Y L R 171

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

FAZAL WAHID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-977 of 2016, decided on 2nd January, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Foreigners Act (XXXI of 1946), S. 14---Concealing and refusing to furnish information which a person ought to disclose or furnish etc, contravention of provision of law or any order made thereunder---Bail, grant of---Further inquiry---Violation of the provisions of S.103, Cr.P.C---Prosecution alleged that Petitioner/accused was foreigner who was unlawfully staying in rented premises---Petitioner contended that he was resident of Pakistan, though not possessing Computerized National Identification Card in his name, however, CNIC of his brother and Death Certificates of their parents showed them Pakistan nationals---Record revealed that a cousin of the petitioner had also got issued Death Certificates of the parents of petitioner and his (cousin's) CNIC number also appeared on said Death Certificates---Petitioner got issued his Birth Certificate from the Secretary of concerned Union Council, which itself showed that the petitioner was resident of Pakistan---All the Prosecution witnesses were Police Officials and none from the public had been joined as private witness at the time of arrest of the petitioner---Case of the petitioner called for further inquiry as envisaged under S.497(2), Cr.P.C---Petitioner was admitted to bail, in circumstances.

Mrs. Razia Ali Zaman Khan Patoli for Applicant.

Shahzado Saleem Nahiyoon, Assistant P.G. Sindh for the State.

2019 Y L R 178

[Sindh (Sukkur Bench)]

Before Shamsuddin Abbasi, J

ALI BAIG alias ALI and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-567, S-610, S-787 of 2017 and S-46 of 2018, decided on 16th July, 2018.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) / 498---Penal Code (XLV of 1860), Ss. 395, 324, 506(2), 337-A(i), 337-F(i), 148 & 149---Robbery, attempt to commit qatl-i-amd, hurt, rioting, unlawful assembly---Ad-interim bail, confirmation of---Injured avoided to appear before Medical Board---Effect---First Information Report was lodged, with the delay of 16 days, against six accused allegedly armed with weapons on two motorcycles, who intercepted the complainant on link road, nearby village; one accused robbed Rs. 25,000/- from complainant and all the accused allegedly made firing causing injuries to the complainant and prosecution witness---Accused-petitioners contended that the provisional medical certificates issued to the injured were challenged by them but the injured deliberately did not appear before the Medical Board despite repeated calls---Complainant contended that he and other injured kept on appearing but Medical Board had not examined them---Validity---Complainant though attributed the delay in lodging FIR to the effect that he had to get directions from Justice of Peace but consultation and deliberation could not be ruled out particularly when the complainant had shown that the present incident was result of robbery, allegedly committed away from the very village both the parties belonged---Mashirnama of place of incident had shown that neither any empty nor blood-stained earth had been recovered from the place of incident---Police had neither recovered crime weapon nor robbed property used by the accused in the commission of alleged offence---Inconsistency existed between the medical evidence and ocular version as according to FIR jaw of one injured was dislocated but provisional medical certificate of said injured did not show such dislocation---Investigation revealed that case was false one, and concerned Magistrate did not agree with the police opinion---Owing to delay in lodging of FIR, the injured were referred for expert's opinion which opinion was not available on record---Complainant deliberately avoided to appear before the special Medical Board---Complainant had concealed the recorded enmity between the parties also---Case of the petitioners called for further inquiry as envisaged under S.497(2), Cr.P.C.---Ad-interim bail already granted to petitioners (five in number) were confirmed while the (sixth) petitioner, who was behind the bar, was granted post-arrest bail---All the accused were admitted to bail, in circumstances.

Abdul Bari Panhwar along with Applicants Ali Baig alias Ali, Asad Baig alias Asad, Mujeeb-ur-Rehman (in Criminal Bail Application No. S-567 of 2017), applicant Ahmed alias Ahmed Khan (in Criminal Bail Application No. S-610 of 2017).

Najeebullah Jalbani along with Applicant Rajabuddin (in Criminal Bail Application No. S-787 of 2017).

Muhammad Ayaz Mari for Applicant (in Criminal Bail Application No.46 of 2018).

Fakir Faiz Muhammad Laghari for the Complainant.

Abdul Rehman Kolachi, Deputy Prosecutor General for the State.

2019 Y L R 204

[Sindh]

Before Fahim Ahmed Siddiqui, J

Capt. Syed MUHAMMAD ASLAM---Appellant

Versus

The STATE and another---Respondents

Criminal Acquittal Appeal No.106 of 2017, decided on 6th November, 2017.

Penal Code (XLV of 1860)---

----Ss. 420, 447, 448 & 506-B---Criminal Procedure Code (V of 1898), S. 417---Cheating, trespassing/house trespassing and criminal intimidation---Appeal against acquittal---Benefit of doubt---Appellant was allowed by the Housing Society to occupy plot in question in the Society and he had a right and was entitled to enter into the plot and raise construction---Any interference or transgression of such right could be 'trespass' but the same could not be termed as 'criminal trespass'---Property in question was open plot therefore, it did not attract definition of 'house trespass'---Nothing could be brought on record during trial which could attract "house trespass" or even "criminal trespass"---No material was available with the prosecution to bring guilt of accused at home---High Court declined to interfere in the judgment passed by Trial Court as acquittal of accused was justified---Appeal was dismissed in circumstances.

Appellant in person.

Zafar Ahmed Khan, Addl. Prosecutor General, Sindh for Respondent No.1.

Raja Basantani for Respondent No.2.

2019 Y L R 223

[Sindh]

Before Aqeel Ahmed Abbasi and Mrs. Ashraf Jahan, JJ

GHULAM NABI SHAIKH---Appellant

Versus

FIRDOUS MATRI and 4 others---Respondents

High Court Appeal No.54 of 2018, decided on 20th March, 2018.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for specific performance of contract---Onus to prove---Principle---Burden lies upon plaintiff to prove existence of contract and his willingness to comply its obligations.

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

----Ss. 12, 39, 42 & 54---Law Reforms Ordinance (XII of 1972), S. 3---Suit for specific performance of contract, declaration, cancellation, injunction and recovery of damages---Intra-court appeal---Balance sale consideration, non-depositing of---Effect---Plaintiff was directed by Single Judge of High Court to file balance sale consideration amount with court official but he failed to deposit the same, resultantly suit was dismissed---Validity---Single Judge of High Court had directed the plaintiff to deposit remaining sale consideration before court official but plaintiff failed to deposit the same in court even though suit remained pending for about 13 years---Suit was dismissed for non-prosecution and during that period suit property was sold out by way of a registered document---Such further transfer of suit property made the plaintiff disentitled for grant of discretionary relief of specific performance in his favour---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court and the suit was rightly dismissed---Intra-court appeal was dismissed in circumstances.

Adnan H. Ishaque Sanghaar for Appellant.

2019 Y L R 228

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

ASLAM PERVAIZ and another---Applicants

Versus

TAMEER ALI and 7 others---Respondents

Criminal Miscellaneous Application No.S-131 of 2018, decided on 27th July, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A(6)(iii), 154, 173 & Sched.-II---Penal Code (XLV of 1860), S. 166---Public servant disobeying a direction of law with intent to cause injury---Submission of challan of the case to the Court having jurisdiction---Powers and responsibilities of the Police and District Prosecution--- Scope--- Non-cognizable offences---Scope---Respondent in his application under S.22-A(6)(iii), Cr.P.C, sought direction against the applicants (SHO and another Police Official), inter alia, to submit the challan before the Court having jurisdiction----Sessions Court , while disposing of the application of respondent, passed order directing the Senior Superintendent of Police for taking action, by way of lodging of FIR, against the applicants for their failure to submit the challan in prescribed period ---Applicants contended that non-submission of the challan in the Court was not their fault/omission as they had furnished the interim report of the case before District Public Prosecutor within prescribed period---Validity----Proviso (1) to S.173, Cr.P.C., provided that if investigation of the case was not completed within fourteen days from the date of recording of FIR under S.154, Cr.P.C., then within three days of the expiration of such period, the Officer-in-Charge of the Police Station would forward an interim report, stating therein the result of investigation made until then to the Magistrate through Public Prosecutor---Applicants claimed, in the present case, that the interim report was furnished by them before District Public Prosecutor which he failed to forward to the Magistrate having jurisdiction within prescribed time---High Court observed that if it was believed to be so, then omission, if any, in forwarding the interim report before the Magistrate having jurisdiction was on the part of District Public Prosecutor, and for his omission the applicants could not be held responsible; and if, for the sake of arguments, it was believed that applicants had failed to submit interim report before the Magistrate having jurisdiction within prescribed time, even then FIR could not be lodged against them for such omission, simply for the reason that such omission on their part, if any, apparently constituted offence punishable under S.166 and/or S.166(2), P.P.C.---Said provisions of law were non-cognizable offence as per column No. 3 to Chapter-IX of Schedule-II to Cr.P.C.---First Information Report under S.154, Cr.P.C. could only be recorded for cognizable offence and not otherwise---High Court set aside the impugned order passed by the Sessions Court----Criminal miscellaneous application was allowed, in circumstances.

Rafique Ahmed Abro for Applicants.

Abid Abdul Qadir Abro for Respondent No.1.

Muhammad Qasim Solangi for Respondents Nos.6 and 7.

2019 Y L R 238

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

GHULAM RAHEEM---Petitioner

Versus

UNIVERSITY OF SINDH through Vice-Chancellor and 2 others---Respondents

Constitutional Petitions Nos.D-2248 of 2013, D-214, D-652 and D-857 of 2017, decided on 25th September, 2017.

Constitution of Pakistan---

----Art. 204---Petition for contempt of court---Direction of High Court to the effect that Zakat fund was to be distributed to the educational institutions---Zakat Council had filed reply that order of the Court would be followed in its letter and spirit and only Universities and Degree Colleges of public sector would be awarded Zakat fund in whole Province without any discrimination---Zakat Council had formed committee to ensure transparency in distribution of Zakat to the deserving educational institutions---Zakat fund was to be provided to Universities and Degree Colleges of public sector directly for proper utilization on deserved and entitled students only without any involvement of District Zakat Council---If any deviation to commitment/undertaking as well as directions of High Court were found legal action would be taken on information/ complaint from any quarter---Petition for contempt was disposed of in circumstances.

Roshan Ali Azeem Mallah for Petitioners.

Allah Bachayo Soomro, Additional A.G Sindh along with Zahid Khemtio Deputy Secretary Representing Secretary Health Department, Naseer Muhammad Shaikh Consultant Jinnah Medical University Karachi Sindh, Riaz Hussain Soomro, Secretary Zakat and Ushr Council along with Muhammad Kashif Siddiqui DAZSK, Khalid Latif Member Zakat Council. Mufti Muhammad Najeeb Khan Member Zakat Council, Syed Jial Shah Member Zakat Council, Khair Muhammad Shaikh Member Sindh Zakat Council for Respondents.

Kamaluddin for Respondents/Sindh University and PUMHS Nawabshah.

Muhammad Arshad S. Pathan for Respondents/Mehran University Jamshoro and Sindh Agriculture University Tando Jam.

2018 Y L R 247

[Sindh]

Before Adnan Iqbal Chaudhry, J

ALLAH-DINO and 7 others---Plaintiffs

Versus

H. H. SHAIKH ZAID BIN SULTAN AL-NAHYAN through Successor H.E. Sheikh Khalifa Saif Bin Zayed Al-Nahyan and others---Defendants

Suit No. (Nil) of 2016, decided on 9th July, 2018.

Civil Procedure Code (V of 1908)---

----O.XLIX, R.3, Ss. 16, 120 & O. VII, R. 10---Suit for possession pertaining to the land outside the territorial limits of the districts of Karachi---Territorial jurisdiction of Karachi Bench of Sindh High Court on the original side---Plaint, return of---Scope---High Court of Sindh at Karachi when dealing with civil suits on its original side had powers to return plaint if it did not have territorial jurisdiction---Suit property was not situated within the territorial jurisdiction of High Court of Sindh at Karachi---Suit should have been filed before the concerned Civil Court where suit land was situated---Plaint was returned, in circumstances.

Muhammad Naveed Aslam v. Aisha Siddiqui PLD 2010 Kar. 261; Muhammad Naveed Aslam v. Aisha Siddiqui 2011 CLC 1176; Muhammad Bachal v. Province of Sindh 2011 CLC 1450; Land Mark Associates v. Sindh Industrial Trading Estate Suit No.247/2008); Deluxe Interiors v. The Sindh Industrial Trading Estates SBLR 2018 Sindh 1310; Mirza Abdur Rahim Baig v. Abdul Haq Lashari PLD 1994 Kar. 388; Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha 2005 MLD 1506 and Muhammad Ramzan (deceased) v. Nasreen Firdous PLD 2016 SC 174 rel.

Muhammad Ayub Chaniho for Plaintiffs.

Shaikh F.M. Javed for Defendants Nos.1(a) to 1(c) and 2.

Pervaiz Ahmed Mastoi, Assistant Advocate General Sindh for Defendants Nos.3 and 4.

2019 Y L R 297

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

ASHFAQUE HUSSAIN LAHORI---Applicant

Versus

LAL BUX and 7 others---Respondents

Civil Revision Application No.S-09 of 2016, decided on 21st May, 2018.

Sindh Waqf Properties Ordinance (IX of 1979)---

----Ss.2(e), 6, 7 & 11---Civil Procedure Code (V of 1908), S. 92--- Application for appointment as Mutawali---Maintainability---Applicant had applied for appointment as Mutawali of the properties in question, on the basis of being real son of the previous Mutawali---Rejection of application--- Validity--- Properties in question were not registered under Sindh Waqf Properties Ordinance, 1979---Status of the properties in question though was that of 'Waqf Property' but no notification under S.7 of the Sindh Waqf Properties Ordinance, 1979 had been issued nor control and management of the same had been takenover by the Chief Administrator of Auqaf---Application under S.11 of Sindh Waqf Properties Ordinance, 1979 was not maintainable, particularly when the relief sought therein was in respect of appoint-ment of applicant as Mutawali according to Islamic Law---Remedy in respect of dispute about such Waqf Property, would be available before Civil Court under S.92, C.P.C.---Applicant would have the remedy of instituting a suit before Civil Court and application under Sindh Waqf Properties Ordinance, 1979, would be misconceived---Trial Court, in circumstances, had rightly dismissed the application by recording cogent reasons, which did not call for any interference by High Court.

Muhammad Ramzan v. The State 2013 SCMR 737 and Zahid Farooq and others v. Anjuman Jamia Masjid and 4 others 1995 SCMR 1584 ref.

Abdul Rehman Bhutto for Applicant.

Naushad Ali Taggar for Respondents Nos.1 to 4.

Abdul Hamid Bhurgri, Addl. Advocate General for Respondents Nos. 5 to 8.

2019 Y L R 313

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

ASLAM PERVEZ---Petitioner

Versus

MADARSA ANWARUL ISLAM GHOUSIA FARIDIA (REGD.) NOOR MASJID GHOTKI through Mohtamim Qari and 3 others---Respondents

C.P. No.S-716 of 2017, decided on 27th April, 2018.

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

----Ss. 15, 16 & 21---Eviction petition---Denial of relationship of landlord and tenant---Rent Controller passed tentative rent order directing the tenant to deposit arrears and future rent---Appeal against interim order---Scope---Petitioner/tenant contended that, in absence of remedy of appeal against interim order, he could challenge the same by invoking constitutional jurisdiction as he had denied relationship of landlord and tenant---Validity---Section 21 of Sindh Rented Premises Ordinance, 1979 provided remedy of appeal against order passed by Rent Controller but the same did not include interim order normally passed on interlocutory application(s)--- Interim order was always of limited duration which legally did not control the final adjudication rather stood merged into final order thereby it became of no value---Law did not require to challenge an interim order even by way of constitutional jurisdiction so that the intention of legislature might not be frustrated---Impugned order being interim one by itself neither had determined the relationship between the parties nor could be referred as final determination of the lis, so no appeal was available---Things which the law itself had not provided, would not be available even by attempting other procedure including constitutional jurisdiction---Impugned order could not be permitted to be challenged by the tenant before High Court by invoking its extraordinary constitutional jurisdiction---Constitutional petition was dismissed accordingly.

Abdul Rasheed v. Haji Mir Ahmed Khan and others PLD 1993 SC 21; Muhammad Saeed Shah v. Mst. Philpana and another 2012 MLD 783 and Iqbal Ahmed v. Muhammad Nasir and another 2016 MLD 624 ref.

Hukum Khan v. Pakistan Steel and others 1989 MLD 4436 and Hassan Ali v. Muhammad Farhan Ahmed and others PLD 2009 Kar. 237 distinguished.

Jamshed Ahmed Faiz for Petitioner.

Abdul Salam Arain for Respondent No.1.

2019 Y L R 324

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

BUX ALI alias DODO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-258 and Confirmation Case No.D-13 of 2012, decided on 22nd May, 2018.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case was that accused caught hold the complainant from his neck and used filthy language by laying him on the ground and gave him kicks and fists blows, complainant told the incident to his son and others---Accused came on motorcycle being armed with gun and gave a call to the complainant from the street---Complainant party came out and proceeded towards the accused---Complainant was behind the others and in the meanwhile accused made straight firing with his gun on the son of complainant, which hit on his chest and he succumbed to the injuries at the spot---Prosecution furnished ocular account by producing three eye-witnesses including complainant---Record showed that the place of incident was situated in front of the houses of complainant party therefore, presence of complainant and other eye-witnesses was natural---Incident had occurred at 7.30 p.m. and in the month of March, it was sunset time therefore, question of misidentity did not arise---Both the parties were well-known to each and the accused resided at the distance of two kilometres from the village of complainant---Fact remained that at first episode of the incident, quarrel took place between the complainant and accused---Complainant had implicated only the accused---Ocular version of complainant was corroborated by medical evidence, which clearly showed that deceased died unnatural death due to firearm injuries---Record transpired that accused did not join investigation and his abscondence for pretty long time was unexplained and was additional piece of evidence against him---No empty was recovered from the scene of offence, which was not possible if accused had not reloaded his gun at the place of incident---Ocular testimony of all the three eye-witnesses, gone un-shattered---Evidence of prosecution witnesses was reliable, trustworthy and confidence inspiring---Circumstances suggested that accused had committed murder of deceased---Eye-witnesses were related to each other and their evidence could not be discarded merely on such ground particularly when there was no motive to falsely involve the accused---Nothing had been brought on record to show that complainant had motive for falsely implicating the accused---Circumstances established that prosecution had proved its case against the accused, however, the motive had not been proved by the prosecution, even complainant had taken different version regarding motive---Accused was suffering from mental disorder, due to mental health of accused, it could be a reason that in first episode of the incident, when quarrel between complainant and accused had taken place and accused had spared the complainant and thereafter again he came back to the village of complainant and while seeing all the four witnesses coming towards him, he made fires on the deceased, who was leading them---Deceased was young boy aged about twenty years and when he heard that the accused had quarrelled with his father and gave him kicks and fists blows, he straight away went to accused and accused made firing at him and thereafter fled away from the scene of offence on motorcycle---Accused had not repeated the fires on deceased or other witness---Prime target of accused was complainant not his deceased son, which constituted mitigating circumstance---Sentence awarded to the accused was altered from death to imprisonment for life in circumstances.

Murad Ali and another v. The State 2011 PCr.LJ 1133; Shahbaz v. The State 2015 MLD 1061; Ulfat Husain v. The State 2018 SCMR 313; Inayatullah and another v. The State and 2 others 2016 YLR 2020; Ashiq Hussain v. The State and others 2014 YLR 2554; Akmal v. The State and others 2017 YLR 1138; Zafar v. The State and others 2018 SCMR 326; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Sajjad Ahmed v. The State and 3 others 2015 PCr.LJ 585; Muhammad Arif v. The State 2013 MLD 1743; Rehmatullah v. Muhammad Iqbal and others 2006 SCMR 1517; Muhammad Saleem and another v. The State 2012 YLR 812; Arshad Hussain alias Arshi v. The State 2015 MLD 431; Abdul Hadi v. Wali Muhammad and 3 others 2000 YLR 509; Ali Muhammad v. The State 1995 MLD 1407; Chakar Jaffari and 2 others v. The State 2011 MLD 524; Mudassar Hanif v. The State 2016 MLD 502 and Nawaz and 4 others v. The State 2002 PCr.LJ 915 ref.

Nazir v. State PLD 1962 SC 269 rel.

(b) Criminal trial---

----Abscondence--- Evidentiary value---Abscondence was treated as a piece of evidence against the accused, who deliberately and intentionally avoided and failed to surrender.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Effect---Prosecution witnesses had not clearly disclosed the motive---Complainant stated that quarrel had taken place with the accused and on the way when he was coming towards his village and after about twenty minutes, accused again came to their village and without disclosing any motive had fired at the deceased---Said fact was not proved on the ground that when accused had grievance against complainant then why accused had killed his son though he was present at the scene of offence---Complainant disclosed in FIR that motive was a quarrel between them but during recording of evidence, he had deviated from that version and disclosed that accused had demanded extortion money of Rs. 10,000/- from him and on that ground he had committed murder of his son---Prosecution had failed to prove the motive against the accused in circumstances.

Muhammad Yousuf Laghari and Muhammad Hashim Laghari for Appellant.

Muzafar Ali Laghari for the Complainant.

Shahzado Salim Nahyoon, D.P.G. for Respondent.

2019 Y L R 345

[Sindh]

Before Muhammad Junaid Ghaffar, J

KASB CORPORATION LIMITED through Chief Executive Officer and another---Plaintiffs

Versus

BANK ISLAMI PAKISTAN LIMITED through President---Defendant

Civil Suit No.1102 of 2015, decided on 18th April, 2018.

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

----O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Application for grant of interim injunction---Plaintiff company had claimed that defendant Bank be restrained from declaring the advance made by plaintiff as doubtful liability in its accounts and prayed that amount be directed to be deposited by the Bank in the Court---Validity---Bank was under certain directions of the State Bank of Pakistan to meet minimum capital requirements as well as capital adequacy ratio and for that could not have shown such advance of plaintiff as financial liability as capital requirement which at the time of amalgamation had completely wiped out and was in fact in negative---No justification, in circumstances, existed on behalf of plaintiff to grant relief being sought through application, which otherwise was a very harsh order to be made against the Bank for deposit of entire amount being claimed in suit with Court---No prima facie case was made out on behalf of plaintiff nor balance of convenience was in its favour and no irreparable loss would be caused if the order as solicited was refused---Application was dismissed in circumstances.

Messrs Sports World and others v. Latees Fabrics and others 1995 MLD 1707; Nazar Muhammad v. Ali Akbar PLD 1989 Kar. 635; Baslagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Kar. 1; Muhammad Ather Hafeez Khan v. Messrs SsangYong and Usmani JV PLD 2011 Kar. 605; Mohiuddin Molla v. The Province of East Pakistan (2) Abdus Sobhan and (3) Ketab Ali PLD 1962 SC 119; Ms. Afshan v. Syed Kamran Ali Shah and 6 others 2013 CLC 1220 and Pakistan Railways Employees Cooperative Housing Society Ltd. v. Karachi Building Control Authority and 9 others 2015 CLC 1223 ref.

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

----O. XXXVIII, Rr. 1 & 5---Attachment before judgment---Object, purpose and scope---Such power is not to guarantee the plaintiff availability of an asset to satisfy decree which ultimately may be passed; it is to ensure non-abusing of process of court by defendant.

Basil Nabi Malik for Plaintiffs.

Arshad Tayyebaly for Defendant.

2019 Y L R 380

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Mrs. UZMA MOINUDDIN---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI---Defendant

Suit No. 1007 of 2000, decided on 3rd July, 2018.

(a) Discretion---

----Discretionary power, exercise of---Scope---When a Government functionary or statutory body was vested with discretionary powers then same were to be exercised in a structured manner---Discretion was to be exercised in a fair, just and reasonable manner.

(b) Natural justice, principles of---

----Applicability--- Scope--- Principles of natural justice were to be read as part of every statute unless expressly excluded.

Muhammad Raghib Baqi for Plaintiff.

Raja Sikandar Khan Yasir and Asif Rasheed for Defendant.

2019 Y L R 390

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar and Khadim Tunio, JJ

ALLAH DINO alias BABOO---Appellant

Versus

The STATE---Respondent

Spl. A.T.As. Nos. 26 of 2010 and 1 of 2011, decided on 7th May, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b), 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security, common object, act of terrorism---All the prosecution witnesses had fully implicated accused persons with the commission of offence, and their testimony appeared to be trustworthy, confidence inspiring and was in league to each other---Minor contradictions in the evidence, could not negate the whole scenario because abduction and death of the abductee, were not denied---Ransom amount had been paid to the culprits, which was not denied---Chain of circumstances in the case, ultimately linked to each other---Defence Counsel, could not help to point out with regard to the denial of aspect like abduction, murder and the ransom---All the prosecution witnesses had correctly identified accused persons before the court---No illegality seemed to have been committed in identification parade---Case of prosecution stood proved by all canons beyond shadow of any reasonable doubt---Defence Counsel, could not shake the testimony of witnesses with regard to identification of accused persons---Conviction and sentence awarded to accused persons by the Trial Court needed no interference by High Court in circumstances.

1995 SCMR 27; 2011 SCMR 762; NLR 1989 S.D. 334; 2007 SCMR 605, 1995 SCMR 1345; 1998 SCMR 25, 1998 SCMR 279; 1993 SCMR 417; NLR S. Decision Page 233 and 2017 YLR 1641 distinguished.

1998 MLD 514; Muhammad Afzal's case 1982 SCMR 129; Muhammad Riaz and others v. Bilqiaz Khan and others 2012 SCMR 721 and Javed Iqbal and another v. The State 2012 SCMR 140 ref.

Ms. Abida Parveen Channar for Appellants (in both Appeals).

Khalil-ur-Rehman for Appellant No.2 (in Spl. A.T.A. No.1 of 2011).

Mohammad Iqbal Awan, D.P.G. for the State (in both Appeals).

2019 Y L R 404

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar, J

RAHMAT ALI---Appellant

Versus

MUHAMMAD ALI and 5 others---Respondents

Criminal Acquittal Appeal No.S-326 of 2011, decided on 22nd May, 2018.

Penal Code (XLV of 1860)---

----Ss. 504 & 34---Criminal Procedure Code (V of 1898), S.417---Insult with intent to provoke breach of peace, common intention---Appeal against acquittal---Reappraisal of evidence---Charge against accused persons was that they being armed with lathis, issued threats to the complainant and caused kick and fist blows to him---No material was available on record showing that complainant had sustained injuries---Incident was reported to Police after unexplained delay of eleven days of the incident---Eye-witnesses were close relatives of the complainant and no person from the locality had been cited or examined by the prosecution---Nothing was recovered from place of Wardat or from the possession of accused persons which could connect them with the commission of offence---Contradictions and discrepancies regarding date and time of incident and the manner in which the incident occurred had created serious doubt in prosecution case---Evidence of Investigating Officer was not helpful to the prosecution---Judgment passed by Magistrate/Trial Court, was based on proper appreciation of evidence and counsel for the complainant had failed to show that the impugned judgment was fanciful---Prosecution failed to point out that some incriminating evidence was not taken into consideration by the Magistrate, which had caused gross miscarriage of justice---When accused was acquitted by a court of competent jurisdiction then double presumption of innocence was attached to its judgment, with which the superior court would not interfere, unless the impugned judgment was vague, perverse and arbitrary or against the record---Impugned judgment passed by the Magistrate did not suffer from any infirmity---Acquittal appeal being devoid of merits, was dismissed.

Haji Amanullah v. Munir Ahmed and others 2010 SCMR 222 rel.

Nazir Ahmed Bhatti and Abdul Hameed Bajwa for Appellant.

Shahid Ahmed Shaikh, D.P.G. for the State.

2019 Y L R 422

[Sindh]

Before Abdul Maalik Gaddi, J

YAMEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.586 of 2017, decided on 1st January, 2018.

(a) Criminal trial---

----Heinousness of crime---Effect---Mere heinous nature of offence was not sufficient to convict accused because accused continued with presumption of innocence until found otherwise.

(b) Criminal trial---

----Burden of proof---Scope---Burden was upon prosecution to prove its case beyond doubt.

(c) Sindh Arms Act (V of 2013)---

----S. 23-A(i)---Criminal Procedure Code (V of 1898), S. 103---Possessing unlicensed arms---Search to be made in presence of witness---Appreciation of evidence---Benefit of doubt---Prosecution case was that one 30-bore T.T. pistol loaded with magazine containing one live round was recovered from the accused and one 30-bore T.T. pistol loaded with magazine containing two live rounds was recovered from his companion---Accused persons did not produce license of weapons, hence the FIRs---Prosecution had examined three witnesses including complainant in order to establish accusation against accused---Record showed that incident took place in evening time and place of incident was a thickly populated area, despite the said fact, police did not associate any independent/private person of the locality to witness the recovery proceedings---Provisions of S. 103, Cr.P.C. were mandatory in nature and could not be ignored without justification---Police was duty bound to prefer private witness if available at the spot to maintain transparency and fairness of the alleged recovery---Novalid reason or plausible explanation had been furnished by the prosecution for non-association of independent witnesses by the police---Record transpired that one 30-bore T.T. pistol without number with one live bullet was recovered from the possession of accused in presence of mashirs, whereas, Forensic Science Laboratory Report showed that the said pistol had rubbed number---First Information Report was registered on 12-11-2015 at 7.55 p.m., while Investigating Officer deposed in his cross-examination that he had received the case for investigation on 12-11-2015 at 8.00 a.m. it did not appeal to a prudent mind as to how the investigation papers were received by the Investigating Officer prior to the incident---False implication of the accused in the case could not be ruled out in circumstances---There were number of infirmities/lacunas which had created serious doubts in the prosecution case, 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.

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

----S. 103---Search to be made in presence of witness---Object---Prime object of said provision was to ensure transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

(e) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance had created reasonable doubt in a prudent mind about the guilt of accused, accused 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 1993 SCMR 1345 rel.

Abdul Ghaffar Khan Niazi for Appellants.

Zahoor Shah Deputy Prosecutor General, Sindh for Respondent.

2019 Y L R 441

[Sindh]

Before Muhammad Saleem Jessar, J

ASGHAR SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.32 of 2013 and Criminal Jail Appeal No.176 of 2013, decided on 10th February, 2018.

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

----Ss.302(b) & 376(2)---Qatl-i-amd, rape---Appreciation of evidence---Benefit of doubt---Accused was charged for committing rape and murder of the minor daughter of complainant---Record showed that accused was not named by the complainant in the FIR---Evidence of the prosecution witnesses including the complainant, showed that none of them had deposed that he had seen the accused with the deceased baby---Complainant had deposed that during the process of search of the deceased, he, his son and brother met the witness, who told them that he had seen the deceased baby along with co-accused, proceeding to the park---Later, they came to know that co-accused had brought the deceased baby at a Dawat in a village, therefore, they went to said village; from-where, they were informed that co-accused along with deceased baby had gone towards forests---Complainant party went towards forests and at about 1.00 p.m., they found the dead body of the deceased baby in a dirty water pond---Evidence showed that right from the beginning till the dead body of deceased was found by the complainant party, at no point of time, the complainant was informed by any person that accused accompanied co-accused and deceased baby---Complainant admitted during his cross-examination that accused was not referred in the FIR and his name was pointed out by co-accused (since dead) after his arrest before the police---Other prosecution witnesses had deposed in the same line and in their entire evidence there was no mention of the accused---Prosecution witnesses had not implicated present accused in the commission of the alleged offence---Medical evidence did not indicate in any manner that the sample of semen of accused matched with the semen found on the swab---Circumstances established that prosecution had failed to prove its case against the accused beyond any 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 sentences recorded by the Trial Court.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204 and Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161 rel.

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

----S. 161---Supplementary statement---Evidentiary value---Supplementary or further statement of the first informant recorded during investigation of the police was neither equivalent to the FIR nor to be read as part of the same.

Mohammad Irfan v. The State 2012 PCr.LJ 625 rel.

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

----S. 164---Confessional statement of deceased co-accused---Scope---Alleged confession of deceased co-accused wherein he had implicated the accused in the commission of the alleged offence had lost its legal sanctity in view of the fact that the said alleged confessional statement could not be proved at the trial stage, which was one of the mandatory requirements for placing reliance on a confessional statement.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

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

----S. 164---Confessional statement---Scope---Confessional statement was a corroboratory piece of evidence and it was to be read together with other pieces of evidence like ocular testimony, medical evidence and circumstantial evidence and not in isolation.

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

----S. 103---Search to be made in presence of witnesses--- Object--- Searches, recoveries and arrests, were reasonably required to associate private persons; more particularly in those cases in which presence of private persons was admitted so as to lend credence to such action and to restore public confidence.

The State v. Bashir and others PLD 1997 SC 408 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Accused was entitled to be extended benefit of doubt as a matter of right---Many circumstances which created doubts were not required to give its benefit to the accused---Even the accused could not be deprived of benefit of doubt, merely because there was only one circumstance, which created doubt in the prosecution case.

Tariq Pervaiz v. The State 1345 rel.

Mohammad Farooq for Appellant.

Muntazir Mehdi, D.P.G. for the State.

2019 Y L R 474

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar, J

Mst. ZAHIDA PERVEEN and another---Petitioners

Versus

IFTIKHAR HUSSAIN and 2 others---Respondents

Constitutional Petitions Nos. S-902 and S-903 of 2017, decided on 20th July, 2018.

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

----Ss. 15 & 16 (1)---Ejectment of tenant---Denial of relationship of landlord and tenant by the tenant on the basis of agreement to sell---Application for deposit of arrears of rent in the Court---"Interlocutory order"---Effect---Landlords moved an application seeking direction for deposit of arrears of rent but same was dismissed---Validity---Sale of demised premises had not been completed in favour of tenants---Demised premises had not been transferred in favour of tenants through a registered instrument---Demised premises was still in the name of landlords---Suit for specific performance with regard to demised premises was subjudice before the Trial Court---Tenants were not entitled to claim ownership of demised premises till a decree was passed in their favour and same had attained finality---Mere pendency of suit for specific performance would not change the position---Relationship of landlord and tenant for the purpose of jurisdiction of Rent Controller stood established---Rent Controller was bound to pass a tentative rent order on the application filed by the landlords---Rent Controller had failed to exercise jurisdiction vested in him by law---Any order passed by a Court or tribunal in excess of its jurisdiction or by not exercising the jurisdiction vested in it by law could be challenged in constitutional jurisdiction of High Court---Mere fact that impugned order was interlocutory would not prevent the High Court from exercising constitutional jurisdiction---Superior Courts had inherent and constitutional powers to remedy and correct the wrongs committed by subordinate Courts---Impugned order was set aside in circumstances---Tenants were directed to deposit arrears of rent within thirty days and future monthly rent regularly till final disposal of the ejectment petition---Amount deposited by the tenants was directed to be invested in some profit bearing Government scheme and be paid/released along with profit to the successful party---Constitutional petition was allowed in circumstances.

Muhammad Nisar v. Izhar Ahmed Shaikh and others PLD 2014 SC 347; Waheedullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; Imam Bux v. Senior Civil Judge/Rent Controller, District Malir, Karachi and others 2002 CLC 876; Amir Ali Khan through legal heirs and others v. Masoodur Rehman Farooqui and others 2008 CLC 1134; Miss Shaisata Shams v. Mst. Seema Bequm through constituted Attorney and 2 others PLD 2008 Kar. 424; Merajudin Ghoury v. Muhammad Aslam and others PLD 2008 Kar. 160; Mst. Miskina Jan v. Rehmat Din 1992 SCMR 1149; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Muhammad Umar Malik v. Federal Service Tribunal PLD 1987 SC 185; Iqbal Ahmed v. Muhammad Nasir and another 2016 MLD 624; Abdul Farooque and another v. Maqsood Ahmed and another 2015 CLC 663; Habib Bank AG Zurich and another v. Nazir Ahmed Vaid and another 2011 CLC 648; Faiz Ahmed and another v. Mst. Qudsia Khatoon 1991 MLD 1051; Usman Khan through attorney v. Aisha Naz and 2 others 2010 CLC 475; Zahid Hussain Rathore and 18 others v. President All Pakistan Women Association and 6 others 2013 YLR 2247; Mrs. Jumana Khursheed v. 1st ADJ Karachi East and 2 others 2007 YLR 363; Muslim Raza v. Mst. Saghira Bano 1987 MLD 3269; Abdul Hameed and others v. Haji Muhammad Javed 1999 MLD 3031; Engr. Inam Ahmed Osmani v. Federation of Pakistan and others 2013 MLD 1132; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Mrs. Syeda Tahira Mubashir v. Mst. Zakia Khan and another 2007 CLC 1961; Syed Muhammad Akhtar Shah (Molvi Fazil) v. Federation of Pakistan through Secretary Establishment Division Islamabad and 3 others PLJ 2014 Kar. 293; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Haji Muhammad Alam Baluch v. Pakistan Steel and another 1989 MLD 2294 and Muhammad Riaz v. Mst. Begum Jan and another 1984 CLC 2970 ref.

Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396, Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647 and Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546 rel.

(b) Constitution of Pakistan---

----Arts. 199---Constitutional jurisdiction of High Court---Scope---Any order passed by a Court or tribunal in excess of its jurisdiction or by not exercising the jurisdiction vested in it by law could be challenged in constitutional jurisdiction of High Court.

Messrs Habib Bank Limited through authorized officers/ attorneys v. Messrs Victor Electronic Appliances Industries (Pvt.) Ltd. and another, 2011 CLD 1571 and Messrs United Bank Limited through authorized attorneys v. Banking Court No.II and 2 others 2012 CLD 1556 rel.

Abdul Naeem and Faisal Naeem for Petitioners (in C. P. No. S-902 of 2017).

Manoj Kumar Tejwani for Respondents Nos. 1 and 2 (in C.P. No.S-902 of 2017).

Abdul Naeem and Faisal Naeem for Petitioners (in C. P. No. S-903 of 2017).

Syed Bahadur Ali Shah for Respondent No.1 (in C.P. No.S-903 of 2017).

2019 Y L R 498

[Sindh (Sukkur Bench)]

Before Nazar Akbar, J

QAMARUDDIN---Applicant

Versus

IMDAD HUSSAIN---Respondent

Civil Revision Application No.S-142 of 2010, decided on 14th September, 2018.

Specific Relief Act (I of 1877)---

----S. 9---Transfer of Property Act (IV of 1882), Ss. 54 & 53-A---Suit for restoration of possession of immovable property---Plea of plaintiff was that defendant had forcibly occupied the suit land whereas defendant contended that he had purchased the suit plot through an oral agreement---Suit was dismissed concurrently being not maintainable---Validity---Plaintiff was in possession on the suit property---Defendant was bound to prove his possession on the suit land prior to the date of dispossession alleged by the plaintiff in his plaint---Defendant had failed to prove that he had purchased the suit land through an oral agreement---Plea not raised by a party in his pleadings could not be examined by the revisional court to set aside concurrent findings of facts---Defendant was in illegal possession on the suit property---Finding of Court could not be set aside by any subsequently created documents---Document which was withheld or not relied upon by the party could not be a basis for setting aside of concurrent findings of Courts below---Claim of plaintiff that he had purchased the suit property through an agreement of sale had been admitted by the owner of said property---Mere agreement of sale did not confer title on the buyer---One could still be lawful occupier of immovable property under a written agreement of sale without title document and such possession and ownership rights were protected under S. 53-A of Transfer of Property Act, 1882---Agreement of sale in favour of plaintiff had been proved as owner had admitted the same---Civil suit was to be decided on the basis of preponderance of evidence---Evidence produced by the plaintiff in support of his claim of possession of suit property had been confirmed by the owner of said land---Defendant had failed to establish his contrary claim agitated in his written statement---Courts below had failed to appreciate evidence on record while dismissing the suit being not maintain-able---Trial Court was not supposed to examine the title of suit property to maintain the present suit---Mere dispossession without consent of aggrieved party was enough to maintain the suit under S.9 of Specific Relief Act, 1877---Impugned judgments and decrees were set aside---Suit filed by the plaintiff was decreed to the extent that he was illegally dispossessed from the suit premises by the defendant---Defendant was directed to put the plaintiff in possession of suit property---Revision was allowed accordingly.

Mohammad Nawaz Soomro for Applicant.

Syed Jaffar Ali Shah for Respondent.

2019 Y L R 513

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

SHER SHAMSUDDIN and others---Petitioners

Versus

ATTA MUHAMMAD and others---Respondents

Civil Revision Application No.2 of 2014, decided on 4th June, 2018.

Specific Relief Act (I of 1877)---

----Ss. 8 & 54---Transfer of Property Act (IV of 1882), S. 53-A---Suit for possession and permanent injunction---Supreme Court had directed the Appellate Court to frame an issue with regard to part performance of contract but same was not framed and matter was decided---Appellate Court only dilated upon the issues originally framed by the Trial Court and decided the matter---Validity---Matter was remanded to the Appellate Court by the High Court to frame an issue as per direction of the Supreme Court and render the judgment on the said issue after hearing the parties and considering the evidence led on said issue---Impugned judgment passed by the Appellate Court was set aside---Revision was allowed, accordingly.

PLD 2015 Sindh 454; 2015 CLC 603; PLD 2002 SC 702; PLD 2001 SC 201; 2010 SCMR 1066; 2008 SCMR 398 and 2008 CLD 524 ref.

Jagdish R. Mulani for Applicants.

Ghulam Hassan Qureshi for Respondents.

2019 Y L R 552

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

HASHIM---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.173 to 175, Special Criminal Anti-Terrorism Jail Appeals Nos. 192 and 193 of 2016, decided on 3rd November, 2017.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(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 of unlicensed arms, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information about presence of terrorists, police reached the place, and encircled the culprits, upon which culprits started firing on the police with intention to cause their death and deter them from performing their duties---Police also fired in their defence and succeeded in apprehending three persons, whereas four accused made their escape good---One Kalashnikov, four hand grenades and two 30-bore pistols were recovered from the possession of the accused persons---Accused were arrested and four empty shells of Kalashnikov, six of 30-bore and four of 9-MM were collected from the place of occurrence---Weapons and empty shells were sealed separately---Record showed that there was cross firing in between the accused and police party, with sophisticated weapon, but no body received any injury from either side---Even no bullet hit the police vehicle---Record transpired that place of incident was a thickly populated area and it was a case of spy information but no private person was associated as mashir---No plausible explanation was offered by prosecution as to why they did not cite any independent person to witness the recovery proceed-ings---Recoveries were effected on 16.1.2014, but were sent to Forensic Science Laboratory for examination on 7.2.2014 after the delay of twenty one days, for which no plausible explanation was furnished for causing such an inordinate delay---Mashirnama, mentioned that pistols and Kalashnikov allegedly recovered from the possession of the accused persons were without numbers, whereas examination report of Forensic Science Laboratory of the weapons showed the numbers of said weapons---Said aspect of the case created doubt about the prosecution case---No hand grenades numbers were mentioned in the FIR and mashirnama but inspection reports of hand grenades showed its numbers and description as plastic bodies without detonators---Hand grenades without explosive material could not blast and presumption could be drawn that police in order to strengthen the rope of their false accusation had foisted upon them---As to hand grenades were retained by whom had not been explained by the prosecution and that after its recovery under whose custody, these were laid---Bomb Disposal Unit had inspected hand grenades on 25.1.2014 though the same were recovered on 16.1.2014 lapes of nine days was questionable---Said circumstances had proved that neither the incident as alleged had taken place nor the recoveries as shown were effected from the possession of the accused---Said exercise carried out by the police had itself shown to be fake, fabricated and engineered one---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Umair and others v. The State 2017 YLR 1097; Muhammad Nawaz and others v. The State and others 2016 SCMR 267; Rahim Baksh v. The State 2010 PCr.LJ 642; Haji Inayat Ali v. Shahzada and others 2008 SCMR 1565 and Riaz Hussain Kalhoro v. The State 2004 PCr.LJ 290 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---Better to acquit the accused than convicting the one innocent---Acquitting by error would be better than convicting by error---One substantial doubt would be enough for acquittal of the accused.

Qaim Ali Memon for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for the State.

2019 Y L R 574

[Sindh]

Before Muhammad Shafi Siddiqui, J

AURORA BROADCASTING SERVICES (PVT.) LTD. and 13 others-Appellants

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and another---Respondents

Misc. Appeals Nos. 10, 14 to 23, 26, 27 and 50 of 2017, decided on 16th April, 2018.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss.13, 20 (c), 29 (6), 30(1)(b) & 30-A---Electronic Media (Programs and Advertisements) Code of Conduct, 2015, Paras. 3(1)(i) & 23---Fake news---Imposition of penalty---Parameters---Personal Hearing Committee, recommendations of---Appellants were licensed broadcasting Media houses and Pakistan Electronic Media Regulatory Authority imposed penalty for airing a fake news of bomb blast---Validity---Powers delegated to Personal Hearing Committee were to see whether any provisions of Electronic Media (Programs and Advertisements) Code of Conduct, 2015, were violated for imposition of fine or penalty---Such was within the domain and parameters of S. 13 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Personal Hearing Committee after hearing all satellite channels, local and national, recommended its views which could have formed a decision by the Authority---Recommendations could or could not be correct but delegation of power was lawful---Those who aired news in simple words as a 'blast' could find a rescue in terms of R. 3(1)(i) of Electronic Media (Programs and Advertisements) Code of Conduct, 2015, and recommendation of Personal Hearing Committee was not appropriate in general but for those who linked the news of blast with the first one by showing / airing it to be a 'second blast' or 'another blast' or 'as well' had definite intention to present it for viewers as if it was in continuity with earlier one---Said news presented it in continuity of earlier one to be within the parameters and clutches of cl. 3(1)(i) of Electronic Media (Programs and Advertisements) Code of Conduct, 2015, and did not find any reason for their escape under any mitigating circumstance---High Court declined to interfere in decision of the Authority for all those appellants who acted in violation of Cl. 3 (1)(i) of Electronic Media (Programs and Advertisements) Code of Conduct, 2015---High Court set aside the fine imposed upon those appellants who only aired the news as 'blast' could not be roped in Electronic Media (Programs and Advertisements) Code of Conduct, 2015, for imposition of fine as they had only aired a news of 'blast' not linking it with earlier blast, as the news was a fact as a blast had occurred---High Court defined parameters to be set to regulate balance in imposition of fine so that question of discrimination be not

exercised--- Appeal was allowed accord-ingly.

Muhammad Vawda along with Nadeem Ahmed for Appellants (in M.As. Nos.10 and 15 of 2017).

Ehsan Raza for Appellant (in M.A. No.17 of 2017).

Asad Halepota for Appellant (in M.A. No.18 of 2017).

Raj Ali Wahid Kunwer for Appellant (in M.A. 19 of 2017).

Ayan Mustafa Memon along with Asif Ansari for Appellants (in M.As. Nos.20 and 21 of 2017).

Abdul Karim Khan for Appellants (in M.A. No.22 of 2017).

Shabbir Ahmed Shaikh for Appellants (in M.A. No.23 of 2017).

Nabil Kolachi and Jam Asif for Appellants (in M.A. Nos.16 and 26 of 2017).

Nemo for Appellants (in M.As. Nos. 14, 27 and 50 of 2017).

Furkan Ali for Respondent.

2019 Y L R 598

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

MANZAR ALAM---Applicant

Versus

Malik MUHAMMAD YAMIN and another---Respondents

Civil Revision Application No. 13 of 2018, decided on 1st March, 2018.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr. 1 & 2---Production of photocopy of document as evidence---Scope---Plaintiff moved application for production of photocopy of document as evidence stating that original had been misplaced---Trial Court allowed the said application---Validity---Exclusion of any evidence notwithstanding the weightage of the same would not serve the interest of justice when documents sought to be produced were proper and essential for the adjudication of the case and same would not harm the defendant if brought on record as he would have an opportunity to question the said documents during cross-examination such documents were relevant in order to assist the Trial Court to adjudicate the controversy---Veracity and weightage of the documents in question would remain open to challenge by the defendant---Revision was dismissed in circumstances.

Sardar Khan Bahadar Khan v. Returning Officer, Constituency LA-18 Poonch-2 Civil Judge, Hajira, AK and 2 others 2003 MLD 284 ref.

Allama Muhammad Inayatullah v. Ghulam Rasool and others 1994 MLD 1984; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Mirza Ali Khan v. Mst. Shahida Parveen and others 1992 SCMR 2112 rel.

Bilawal Ali Ghunio for Applicant.

2019 Y L R 613

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Omar Sial, J

ABID and another---Appellants

Versus

The STATE---Respondent

Spl. Criminal ATA Appeals Nos.70, 71, 79 and 80 of 2017, decided on 9th February, 2018.

Penal Code (XLV of 1860)---

----Ss. 324, 392, 353, & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons along with another came on a motorcycle, duly armed, and robbed Rs. 7000 and a mobile phone from two off-duty policemen, while they were sitting in their car waiting for a colleague to join them---Shootout allegedly took place between the accused persons and the two off-duty policemen and a police party in a mobile, which had subsequently arrived on the scene hearing the earlier gun fire---Both the accused persons sustained fire arm injuries during the encounter and were arrested, whereas their third accomplice made his escape good---Unlicensed pistols were recovered from the two injured accused persons---Allegedly, three accused fired directly at the occupants of the car and then at the police mobile from a relatively short distance, yet no damage was caused to the complainant's car or the police mobile or any nearby property nor did they manage to hit the person of either occupant or the police party---Recovery witnesses testified that the case property was sealed on the spot by one of the witnesses, but the first Investigating Officer had testified that when he received the case property from the witness, the same was in an unsealed condition except the pistol---Police Officer/victim testified that the wallet and cash looted from him was produced at trial in an unsealed condition---Memo. of arrest and recovery showed that six live bullets were recovered from both the accused---Forensic Science Laboratory report also showed that six live bullets were sent for examination---Police Officer/victim had admitted at trial that eight live bullets were available as case property before the court---Emerging eight live bullets at trial as case property was never explained when the memo of recovery and Forensic Science Laboratory report both showed that six live bullets were seized and examined---Possibility of the case property being tampered with could not be ruled out and the recovery made was shrouded in doubt---Record transpired that Investigating Officer prepared the memo. of arrest and recovery at 11.00 p.m. and recorded the statement of the complainant under S.154, Cr.P.C. on the spot at 11.15 p.m., after which he was said to have sent the accused persons to the hospital---Medical record revealed that the two injured accused were brought to the hospital at 11.00 p.m., which casted doubt upon the veracity of the case of prosecution---Circumstances established that prosecution was unable to prove its case beyond reasonable doubt---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Dur Muhammad Shah for Appellant (in Spl. Cr. A.T.As. Nos.70 and 71 of 2017).

Ms. Rubina Durrani for Appellant (in Spl. Crl. A.T.As. Nos.79 and 80 of 2017).

2019 Y L R 628

[Sindh]

Before Mrs. Ashraf Jahan, J

JUMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.28 of 2016, decided on 16th January, 2018.

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

----Ss. 376, 511 & 506/2---Rape, attempt to commit offence punishable with imprisonment for life or a shorter term, criminal intimidation---Appreciation of evidence---Prosecution case was that accused while armed with dagger, attempted to commit rape with the complainant and she received injuries on resistance---Ocular account of the occurrence was furnished by the complainant---Complainant was cross-examined at length but her evidence could not be shattered---In the present case, two witnesses were declared hostile and they gave obligatory statements in favour of accused, but rest of the prosecution witnesses had fully supported the prosecution---Witnesses were unanimous in their evidence that they heard cries of the complainant coming out of her room, which was locked from inside---Said witnesses entered in the room by kicking at the door, where the culprit was present and on seeing the witnesses, he made his escape good---Record transpired that at the time of sexual assault, the room was bolted from inside and only the complainant and accused were present therein; in such state of affairs, only the complainant could state the facts---Accused in his statement recorded under S. 342, Cr.P.C. had not denied his presence at the time of occurrence in the complainant's room, but he narrated a different story, which seemed to be ridiculous---No motive or any other cause was attributed to the complainant and other prosecution witnesses to falsely implicate the accused---Admittedly, in the present case, there was no dispute regarding date, time, place of incident, role and conduct of accused against the victim, therefore, it was established that prosecution had discharged its burden successfully---Circumstances established that all the witnesses were natural, confidence inspiring and sufficient to connect the accused with commission of crime---Appeal was dismissed in circumstances.

Rizwan alias Abu-Bakar v. The State 2010 PCr.LJ 1296; Ejaz ul Haq v. The State and another 2013 YLR 2563; Mst. Zahida Parveen v. Muhammad Afzal, A.S.-I. and another 2014 PCr.LJ 819 and Naseer Ahmad v. The State 2016 MLD 1352 ref.

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

----Ss. 376, 511 & 506(2)---Rape, attempt to commit offence punishable with imprisonment for life or a shorter term, criminal intimidation---Appreciation of evidence---Delay of about more than two days in lodging of FIR---Effect---Record showed FIR, was lodged on third day of the incident---Complainant had given the explanation that due to mental shock and trauma, she was not in a position to lodge the FIR---Said feelings of a unmarried woman in the society was very natural and could be termed as genuine explanation for the delay.

Aziz-ur-Rehman Akhund for Appellant.

Ms. Rahat Ehsan, Additional Prosecutor General, Sindh for Respondent.

2019 Y L R 637

[Sindh (Sukkur Bench)]

Before Nazar Akbar, J

MUHAMMAD YOUNIS and another---Applicants

Versus

SADARUDDIN

and 5 others---Respondents

Civil Revision No.S-112 of 2009, decided on 5th September, 2018.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance---Amount paid in part performance of a contract---Payment of interest on said amount---Scope---Petitioner agreed to sell his property to respondents for a sum of Rs.90,000 and executed agreement---Rupees 30,000 was paid by respondents to petitioner as earnest money and remaining to be paid subsequently---Petitioner sold the property to another person, respondents filed suit for specific performance against petitioner---Plea of respondents was that entire sale consideration was paid before filing of suit---Appellate Court, while reversing the findings of Trial Court, directed the respondents to deposit Rs.60,000 as remaining sale consideration and directed the petitioner to execute the sale deed---Validity---High Court, with consent of parties, directed the petitioner and subsequent purchaser to refund the earnest money of Rs.30,000 along with 15 percent interest per annum from the date of its payment and in case of failure, respondents were directed to deposit Rs.60,000, without additional amount, in the Trial Court for execution of sale deed---Judgments and decrees of the Courts below were modified accordingly.

Manooj Kumar Tejwani for Applicants.

Muhammad Hamzo Buriro for Respondent No.1.

2019 Y L R 643

[Sindh]

Before Mohammad Karim Khan Agha, J

Syed SHAFQAT HUSSAIN SHAH---Appellant

Versus

RETURNING OFFICER and another---Respondents

Election Appeal No.73 of 2018, decided on 25th June, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 62 & 63---Nomination papers, rejection of---Candidate alleged to be a Bank defaulter---Scope---Nomination papers of candidate were rejected by Returning Officer on the basis that he was a bank defaulter---Plea of candidate was that since no decree had been passed against him, it could not be said that he was a defaulter---Validity---Candidate could not be conclusively declared to be a defaulter until and unless a decree or execution order had been made against him in respect of such outstanding amount---Candidate was allowed to contest election accordingly.

2010 CLC 165 ref.

Ali Almani and Jam Zeeshan for Appellants.

2019 Y L R 650

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Mohammad Karim Khan Agha, J

MUSTAFA JAMAL KAZI and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Constitutional Petitions Nos. D-1817, D-3401, D-1979 and D-3901 of 2017, decided on 30th January, 2018.

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

----S. 498---Pre-arrest bail---Mala fide---Proof---In cases of pre-arrest bail there must be some element of mala fide on part of complainant or investigating agency; it is difficult for accused to expressly prove mala fide---Mala fides can be deduced/inferred from particular facts and circumstances of each case.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427; Mukhtar Ahmad v. The State and others 2016 SCMR 2064 and Khalil Ahmed Soomro and others v. State dated 28-7-2017 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Mala fide---Defence documents---Consideration---Petitioner was accused facing investigation with National Accountability Bureau who provided documents in his defense---Plea raised by petitioner was that his name was included in investigation due to mala fide---Validity--- Documents provided by petitioner were of material nature and could have been deeply considered by National Accountability Bureau before filing reference against petitioner---Even if National Accountability Bureau was of the view that other sufficient material was available to justify filing of reference against petitioner under National Accountability Ordinance, 1999, those documents should have been disclosed to petitioner as they would have assisted him in making his defence---Element of mala fide existed on part of National Accountability Bureau in not disclosing said documents to petitioner---Such concealing of material by National Accountability Bureau from petitioner made case of further inquiry in the case---Pre-arrest bail was granted in circumstances.

Sharjeel Inam Memon v. Chairman NAB and others C.P. No.D-1955 of 2017 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)(vi) & (b)---Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Mala fide---Proof---Petitioner was accused facing investigation with National Accountability Bureau and claimed mala fide on part of investigating officer---Validity---Under camouflage of letter dated 25-05-2004 fraud was committed by petitioner who by letter dated 13-07-2004 duly signed by him forwarded documents which he illegally managed by misusing his authority---If petitioner had not forwarded attested copies of fake and bogus documents which was his duty to check as custodian of record, land scam, of which petitioner was an integral part, could have never taken place---No mala fide existed on part of National Accountability Bureau and prima facie there was sufficient material to link petitioner with principal accused for commission of offence for which he was charged in reference---Pre-arrest bail was declined in circumstances.

Aamir Raza Naqvi and Afaq Ahmed for Petitioners (in C.P. No.D-1817 of 2017).

M. Rehman Ghous and M. Anwar Tariq for Petitioners (in C.P. No.D-3401 of 2017).

Ayaz Hussain Tunio for Petitioners (C.P. No.D-1979 of 2017).

Khawaja Naveed Ahmed and Irfan Bashir Butta for Petitioners (in C.P. No.D-3901 of 2017).

Mohammed Altaf, Special Prosecutor, NAB for Respondents.

2019 Y L R 668

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

NOMAN ALI BHATTI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

C.P. No.D-990 of 2018, decided on 3rd September, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Deeper appreciation of evidence---Scope---Petitioner was arrested on charge of illegal tax refunds through bogus tax certificates and bogus companies---Plea raised by petitioner was that he did not receive any benefit and that his CNIC was fraudulently used without his knowledge---Validity---While deciding bail plea of accused, deeper appreciation of evidence was not required---If there was prima facie sufficient evidence against accused, he would not be held entitled for concession of bail---Sufficient evidence against petitioner in form of relevant documents with his signatures thereon, statements of witnesses and relevant Bank account papers were collected by National Accountability Bureau---Out of 22 cited witnesses, 13 witnesses had already been examined and trial was likely to be concluded in near future---Bail was declined in circumstances.

Zeeshan Abdullah for Petitioner.

2019 Y L R 674

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

AIJAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-28 of 2017, decided on 16th August, 2017.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---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, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons made firing on the police party with their weapons, which was retaliated---Complainant admitted in his cross-examination that the encounter took place with a close distance, but no one from either side received injury nor the police mobile was hit by any bullet---No empty was produced or identified before the trial court as case property by the complainant---Only one mobile phone and a diary were produced as case property by the complainant---Investigating Officer had stated in his cross-examination that two memorandums of recovery dated 17.1.2009 and that of inspection of place of incident dated 18.1.2009 pertained to different cases---Record showed that Investigating Officer did not contact any person whose phone numbers were mentioned in the diary recovered from the place of incident and admitted in cross-examination that he did not verify from any person of the locality about the incident of police encounter---Circumstances established that there were many frailties in the case, which made the case extremely dubious, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against the accused by the Trial Court. Ghulam Qadir v. State 2008 SCMR 1221 rel.

Mir Shahzad Ahmed Talpur for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

2019 Y L R 677

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD ISHAQUE---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No.S-37 of 2018, decided on 3rd May, 2018.

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

----S. 497---Customs Act (IV of 1969), Ss. 14-A & 32---Bail, grant of---Alternate punishments---Case of further inquiry---Accused was importer of goods and was arrested for making false statements with regard to value of goods imported---Accused was required to be served with a notice before registering case against him in order to make clear version of prosecution and allegations levelled against him---Object of bail was to secure appearance of accused person at his trial---Object of bail was neither punitive nor preventive therefore, deprivation of liberty was to be considered a punishment unless it could be required to ensure presence of accused during trial---Offence with which accused was charged was carrying different-cum-alternate punishments and lesser punishment which favored accused was to be considered at bail stage---Case against accused fell within ambit of S. 497(2), Cr.P.C. and required further inquiry---Bail was allowed in circumstances.

Muhammad Ali v. The State 2012 YLR 1060; Zahid Maseeh and another v. The State 2012 MLD 814; Muhammad Tanveer v. The State and another PLD 2017 SC 733; Zahir Hussain v. The State PLD 2006 Kar. 397, Kamran and another v. The State 2018 MLD 479 and Imtiaz Ali and another v. The State PLD 1997 SC 1745 ref.

(b) Bail---

----Lesser punishment is to be taken into consideration at bail stage.

Tariq Bashir and another v. The State PLD 1995 SC 34 rel.

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

----Ss. 497 & 498---Bail---Assessment of evidence--- Principle--- Only tentative assessment is to be made and no deeper appreciation is permissible.

Zain A. Jatoi along with Kelash Sethar for Applicant.

Muhammad Javaid K. K., Assistant Attorney General for Pakistan.

2019 Y L R 689

[Sindh]

Before Muhammad Iqbal Kalhoro and Mohammad Karim Khan Agha, JJ

ABDUL QADIR MEMON and others---Petitioners

Versus

DIRECTOR GENERAL NATIONAL ACCOUNTABILITY BUREAU (SINDH) and others---Respondents

C.Ps. Nos. D-265, D-315; D-5143 of 2015, D-2122, D-2453, D-2528, D-2529, D-2530, D-2286 and D-2582 of 2018, decided on 1st June, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Mala fide---Case of further inquiry---Petitioners were government officials who were alleged to have misused/failed to exercise their authority by illegal regularization of government lands causing loss to national exchequer---Court, in case of bail had to make a tentative assessment of material on record and could not go into deeper appreciation of the same---Trial Court was to decide cases on merits based on evidence before it---Prima facie, in the present case, it was difficult at bail stage based on material before High Court to link all petitioners to an unbroken chain of criminality especially after Lands Committee (none of whom were accused) gave clean chit to regularization of subject land---Slight elements/hints of mala fide existed and it had become a case of further inquiry---Bail was allowed in circumstances.

Chief Ehtesab Commissioner v. Aftab Ahmed Sherpao PLD 2005 SC 408; Abid Mahmood v. Government of Khyber Pakhtunkhwa 2017 SCMR 728; Fecto Belarus Tractor Ltd. v. Government of Pakistan PLD 2005 SC 605; Ramesh U.Udeshi v. The State SBLR 2005 SC 37; Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Sardar Amin Farooqui v. The Chairman, NAB 2014 PCr.LJ 186; Syed Ali Raza v. Federation of Pakistan PLD 2018 Sindh 174; Waqar Ahmed and

another v. Chairman NAB and another PLD 2015 Sindh 295; Masood Ahmed and another v. State through D.G. NAB 2017 PCr.LJ 770; Pervez Zaki v. The State 2017 PCr.LJ 747; Qurban Ali Jatoi v. Chairman NAB 2002 MLD 472; The State and others v. M. Idress Ghauri 2008 SCMR 1118; Darayus Cyrus Minwala v. National Accountability Bureau and others 2010 MLD 1931; Muhammad Amin Qureshi v. The State 2007 PCr.LJ 105; Ahmad Riaz Sheikh v. The State PLD 2009 SC 202; Tariq Saeed v. Chairman, National Accountability Bureau and 2 others 2005 YLR 445; Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; Ramesh U Din v. State 2005 YLR 1305; Aftab Ahmed Memon v. The Chairman NAB and others C.P. No.D-630 of 2016 and Bahader Khan v. State 2012 PCr.LJ 24 ref.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on part of complainant or police.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Anwar Tariq and Muhammad Rehman Ghous for Petitioners (in C.P. No.D-265 of 2015).

Muhammad Jameel for Petitioners (in C.P. No.D-2122 of 2018).

Ovais Ali Shah for Petitioners (in C.P. No.D-2453 of 2018).

Haider Waheed for Petitioners (in C.Ps. Nos.D-2528 to 2530 of 2018).

Raj Ali Wahid Kunwar for Petitioners (C.P. No. D-315 of 2015).

Muhammad Zeeshan Abdullah for Petitioners (in C.P. No.D-2286 of 2018).

Rafique Ahmed Kalwar for Petitioners (in C.P. No.D-2582 of 2018).

Hafiz Ali Ashfaq for Petitioners (C.P. No.D-5143 of 2015).

Yassir Siddiqi, Special Prosecutor, NAB for Respondents.

2019 Y L R 700

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

ARSHAD RASOOL---Petitioner

Versus

Mst. SANIYA and another---Respondents

C.P. No.S-253 of 2018, decided on 27th February, 2018.

Family Courts Act (XXXV of 1964)---

----S. 14(3)---Constitution of Pakistan, Art. 199--- Interlocutory order---Constitutional petition---Maintainability---Scope---Office of the High Court raised objection on the maintainability of constitutional petition against interlocutory order passed by the Family Court---Petitioner/defendant contended that his application to produce documents was wrongly dismissed by the Trial Court---Validity---Record revealed that impugned order had been passed on an interlocutory application and in the said order the Court had expressly observed that institution of interlocutory application was in continuation of the petitioner's efforts to linger on the proceedings in the family suit---High Court deprecated the practice of assailing interlocutory orders in the constitutional jurisdiction as only exception was that in order to avoid an abuse of the process of law leading to grave injustice, the petitioner had no remedy available but to invoke constitutional jurisdiction---No appeal or revision was provided under the relevant laws to challenge interlocutory order, however, the same could be agitated when final decision had been passed in the proceedings----Constitutional petition was dismissed accordingly.

Ali Adnan Dar through Attorney v. Judge Family Court and others PLD 2016 Lah. 73; Mohtarma Benzir Bhutto, MNA and Leader of Opposition Bilawal House, Karachi v. The State 1999 SCMR 1447; Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691; Bank of Punjab through Authorized Attorney v. Messrs AMZ Ventures Ltd. and another 2013 CLD 2033; Syed Mansoor Sadiq Zaidi v. Mst. Begum Narjis Zaidi and another 2012 YLR 2122 and Khalid Mehmood through Special Attorney v. Judge Family Court, Faisalabad and another 2010 YLR 336 ref.

Wajid Asghar Cheema v. Mst. Anshka and another PLD 2011 Lah. 534 distinguished.

Muhammad Hayat Mughal for Petitioner.

2019 Y L R 715

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD IQBAL MEMON---Petitioner

Versus

Mst. AZRA BANO through Attorney and 2 others---Respondents

C.P. No. S-324 of 2010, decided on 2nd April, 2018.

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

----S. 15(2)(ii)---Eviction petition---Non-admission of default in payment of rent on the first date of hearing by the tenant---Effect--- Tenant could not claim benefit of S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979 where he had failed to admit such default on the very first date of hearing.

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

----S. 5---Tenancy agreement, non-registration of---Effect---Provisions of S.5 of Sindh Rented Premises Ordinance, 1979 being procedural in nature did not specify any penalty for non-compliance of the same.

1994 SCMR 1012 and 1999 SCMR 2771 rel.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Certiorari, writ of---Scope---Eviction of tenant---High Court could interfere in such matters in cases where findings were based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction or arbitrary exercise of powers---Jurisdiction of High Court was limited in issuance of writ of certiorari and to correct any wrong committed by the appellate authority---Constitutional petition was dismissed accordingly.

Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 05 others 2001 SCMR 338 and Waqar Zafar Bukhtawari and others v. Mazhar Hussain and others PLD 2018 SC 81 rel.

Naimatullah Soomro for Petitioner.

Aamir Ali Memon for Respondents.

Wali Muhammad Jamari, A.G.

2019 Y L R 730

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUSHTAQUE HUSSAIN through L.Rs. and another---Applicants

Versus

PROVINCE OF SINDH through Member Board of Revenue Hyderabad and others---Respondent

R.A. No.35 of 2008, decided on 16th May, 2018.

Sindh Land Revenue Act (XVII of 1967)---

----S. 172---Civil Procedure Code (V of 1908), O. VII, R. 11---Cancellation of mutation by the Revenue Officer---Plaint, rejection of---Scope---Deputy District Officer Revenue cancelled the impugned mutation which order was not challenged before Executive District Officer (Revenue) but present suit was filed before Civil Court---Trial Court rejected the plaint on the ground that plaintiff was required to challenge the order passed by Deputy District Officer Revenue before higher revenue forum---Validity---While deciding application under O. VII, R. 11, C.P.C. only averments made in the plaint were to considered but Courts were not restrained from considering the other material available on record---Plaintiff earlier filed suit wherein legitimacy of defendants and their right of inheritance was challenged---Said suit had been decided by the Trial Court and revision was pending before High Court---Trial Court without considering other material aspects of the matter had summarily rejected the plaint in the present case---Impugned orders passed by the Courts below were set aside---Revision was allowed in circumstances.

Kazi Wali Muhammad for Applicants.

Imdad Ali Unar for Respondent No.6.

2019 Y L R 740

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

KHUSHI MOHAMMAD and 19 others---Applicants

Versus

NOOR MOHAMMAD alias PHOTO through L.Rs. and 4 others---Respondents

Civil Revision Application No. S-204 of 2005, decided on 2nd May, 2018.

Sindh Land Revenue Act (XVII of 1967)---

----S. 52---"Aasaish" land---Entries in revenue record---Presumption---Scope---Records of the land until and unless challenged, are to be taken on the surface value. Dilbar Hussain v. Muhammadul Hassan PLD 1986 Quetta 198 ref.

Suresh Kumar for Applicant.

Naimatullah Soomro and Wali Muhammad Jamari, A.G. for Respondents.

2019 Y L R 747

[Sindh]

Before Mohammed Karim Khan Agha and Shamsuddin Abbasi, JJ

GULSHER AHMED CHACHAR and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos.4909, 3912 and 4610 of 2018, decided on 3rd December, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) (vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Misuse of authority---Prima facie case---Mala fide, proof of---Pre-arrest bail---Object---Petitioners were alleged to have misused their authority causing misappropriation of imported urea resulting in loss to national exchequer---Validity---Object of pre-arrest bail was to save innocent persons from being unnecessarily harassed due to their arrest in cases instituted against them with mala fide intention and ulterior motives---For grant of pre-arrest bail there must be some essential element and accused had to satisfy the court to point mala fide---No evidence of enmity in terms of mala fide or ulterior motive was available on record which was prerequisite for pre-arrest bail---All petitioners had requisite mens rea to commit offence charged with their acts, conduct, failure to exercise authority, misuse of authority and deliberately violating the rules---Trial Court was to decide mens rea of petitioners after recording evidence in the matter---Petitioners were prima facie involved in commission of offence and they were nominated in the reference who were attributed a specific role---No evidence of enmity in terms of mala fide or ulterior motive was available on record, which could have actuated prosecution to falsely implicate petitioners---Bail was declined in circumstances.

2000 MLD 1735; Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427; Mukhtar Ahmed v. The State and others 2016 SCMR 2064; Khalil Ahmed

Soomro and others v. The State unreported dated 28.07.2017 and Rai Mohammad Khan v. NAB 2017 SCMR 1152 ref.

Amer Raza Naqvi for Petitioner (in C.P. No.4909 of 2018).

K.A. Vaswani, Special Prosecutor, NAB for Respondent (in C.P. No.4909 of 2018).

Abdul Majeed Khoso for Petitioner (in C.P. No.3912 of 2018).

K.A. Vaswani, Special Prosecutor, NAB (in C.P. No.3912 of 2018).

Abdul Majeed Khoso for Petitioner (in C.P. No.4610 of 2018).

K.A. Vaswani, Special Prosecutor, NAB for Respondent (in C.P. No.4610 of 2018).

2019 Y L R 770

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Irshad Ali Shah, JJ

MUNIR MALIK and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-36 of 2011, D-132 and D-133 of 2017, decided on 20th June, 2018.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed arms, act of terrorism---Appreciation of evidence---Prosecution case was that accused party while armed with deadly weapons assaulted on the complainant party, made direct firing upon them due to which, father and cousin of complainant died and two persons sustained injuries---Motive behind the incident was stated to be an occurrence taken place over the quarrel of children---Complainant had stated the entire case during the course of his evidence---Complainant was supported in his version by witnesses on all material points with regard to the manner whereby the death of the deceased was committed and injuries to the injured were caused as well as time and place of incident---In the present case, the father and cousin of the complainant undeniably lost their lives while the witnesses received firearm injuries on their persons with intention of committing their murder---Possibility of false involvement by substituting innocent with real culprits was a rare phenomenon---Defence had not brought any serious animosity between the parties---Quarrel between the children was not such a serious motive which could have promoted the complainant party to falsely involve the accused at the cost of the real culprits---Injuries on the persons of the injured and death of deceased at a particular spot was indicative of the fact that presence of such witnesses and deceased was natural---Complainant and his witnesses appeared to be natural witnesses of the incident---Evidence of the witnesses was corroborated in shape of recovery of blood-stained earth, empty bullets of MP-5 rifle, Kalashnikov and TT-pistols from the place of incident, which were effected by the Investigating Officer in presence of witnesses---Unlicensed Kalashnikov and TT pistols were recovered from two accused on their arrest, which were used by them in commission of the incident---Such recovery could not be said to be foisted as it was found matched to large extent with the recovery of empties from place of incident as per expert report---Accused was attributed specific role of causing fire shot injuries to deceased---Role attributed to the co-accused in commission of incident was to the extent that he with rest of the culprits caused unspecified fire shot injuries to prosecution witnesses, but for that reason, he could not be absolved of the liability by extending him benefit of doubt as it was he who with rest of the culprits being armed with deadly weapons gone over to the complainant party, participated in commission of the incident thereby committed death of two innocent persons and caused fire shot injuries to two more persons with intention to commit their murder---Manner in which the accused persons came at a particular place in such a fashion could lead to no other presumption but that each of them knew the consequences of their such assembly---Such participation on the part of co-accused, prima facie, involved him in commission of the incident on point of vicarious liability, thus, it could be concluded that all the accused persons including the appellants, acted in furtherance of their common intention, hence could seek no exception to the legal position---No delay took place in reporting the case to the police---Improvements were not made by the witnesses on the merits of the case---No case for making interference with the impugned judgment was made out, thus, appeal was dismissed, in circumstances.

Muhammad Tufail and others v. Settlement and Rehabilitation Commissioner Hyderabad and others PLD 1967 Kar. 258; Molvi Noor Muhammad and others v. The State 2000 PCr.LJ 1583, Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317; Amanullah and others v. The State PLD 2003 Quetta 11; Rashid Ahmed v. The State PLD 1972 SC 271; Pir Sabir Shah v. Shah Muhammad Khan and others PLD 1995 SC 66; Karachi Dock Labour Board v. Messrs Quality Builders and others PLD 2016 SC 121; Pervaiz Iqbal v. Special Judge Anti Terrorism Court No.3 and others 2013 YLR 92; Dr. Zahoor Mehdi v. Election Commissioner of Pakistan PLD 2009 SC 1; Muhabat Ali and others v. The State 2007 SCMR 142; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Hussain alias Hussaini v. The State PLD 1995 Lah. 229; Rahat Ali v. The State 2010 SCMR 584; Tariq Pervaiz v. The State 1995 SCMR 1345 and Shafiq Shah and others v. The State 2010 PCr.LJ 1156 ref.

Zahoor Ahmed v. The State 2007 SCMR 1519 and Ramachandran and others v. State of Kerala 2012 SCMR 1156 rel.

(b) Criminal trial---

----Evidence--- Contradictions and consistencies in evidence of witnesses---Scope---Evidence could not be disbelieved merely on the basis of immaterial and inconsequential contradictions unless the inconsistencies and contradictions were shown to effect material parts of prosecution case.

Ravi Kapur v. State of Rajhistan 2013 SCMR 480 rel.

(c) Criminal trial---

----Evidence--- Ocular account---Evidentiary value---Conviction could be recorded on ocular account alone, if the same appeared to be convincing and natural---Ocular account, if found supported with other corroborative pieces of evidence, would be safe to conclude that the prosecution had successfully established its case---Mere inconsistencies and minor contradictions would be of no avail for defence.

Ghulam Muhammad and another v. State and another 2017 SCMR 2048 rel.

Qurban Ali Malano and Ghulam Shabbir Dayo for Appellants.

Habib Rehman Shaikh for the Complainant.

Sardar Ali Shah Rizvi, D.P.G. for the State.

2019 Y L R 788

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Syed ATHER HUSSAIN and others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Constitutional Petitions Nos. 2262, 841, 1356 and 3026 of 2016, decided on 29th November, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional Petition---Bail, grant of---Case of further inquiry---Initiation of note---Petitioner was arrested on misuse of authority in appropriating amenity plots to principal accused---Validity---It was a case of pick and choose as investigating officer had not arraigned any official as accused who allotted amenity plots to principal accused in year 1994 or those who had restored allotment---More than 84 acres valuable lands at different parts of Karachi were allotted to principal accused by Land Utilization Department, Government of Sindh but none from those who had allotted the valuable lands to principal accused had been arraigned as accused in the reference---Such action by authorities clearly manifested mala fide on part of prosecution---National Accountability Bureau levelled allegations against petitioner that he had put his note on the note sheet for entering into deed of lease with hospital of principal accused and same too was executed after approval of the competent authority for restoration of earlier allotments---High Court declared case of petitioner within purview of further inquiry---Bail was allowed in circumstances.

Imtiaz Ahmed v. The State through Special Prosecutor, ANF 2017 SCMR 1194; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Zulfiqar Ashraf v. The State and others 2016 SCMR 18; Atta Abbas Zaidi v. Chairman, National Accountability Bureau (NAB) and 2 others PLD 2017 Sindh 120; Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; C.P. No.D-5369 of 2017; C.P. No. D-6307 of 2016 and C.P. No. D-265 of 2015 ref.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Public Procurement Regulatory Authority Rules, 2004, R.4---Constitution of Pakistan, Art. 199---Constitutional Petition---Pre-arrest bail, grant of---Case of further inquiry---Violation of Public Procurement Regulatory Authority Rules, 2004---Decision by Board of Directors---Petitioner Chief Executive Officer of Karachi Dockyard Labour Board (Board) and was alleged to have awarded contract to the principal accused in violation of Public Procurement Regulatory Authority Rules, 2004 and facilitated in taking over the hospital of the Board---Validity---Neither petitioner was competent to award contract to the principal accused nor he acted in violation of decision of the Board---Board was a body corporate and ran its affairs through Chairman---Neither Chairman nor members of the Board were examined during investigation---No illegality was pointed out by the Board nor did it show any displeasure against petitioner in entire minutes of meeting---Petitioner was a man of advance age and nothing had been brought on record to show that he had gained any benefit and no money trail was sorted out---Case of accused being that of pick and choose, same required further inquiry---Pre-arrest bail was confirmed, in circumstances.

Mansoor Ahmed Khan v. The State through NAB in Civil Petition No.540-K of 2017 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Rules of Business of Government of Pakistan for Gas Allocation and Management Policy, 2005---Constitution of Pakistan, Art. 199---Constitutional Petition---Pre-arrest bail, grant of---Case of further inquiry---Gas allocation and load management--- Quota--- Economic Coordination Committee (ECC), duty of---Petitioner was Secretary Petroleum and Natural Resources and was accused of facilitating principal accused with summaries for gas curtailment in name of load management---Validity---ECC and the Cabinet were competent forums to change/modify earlier policies---Competent authority was equally responsible for any wrong decision approved by it---Successors of petitioners had also adopted same policy and moved identical summaries to ECC and same were approved by ECC as well as the Cabinet---National Accountability Bureau authorities neither implicated those who moved similar and identical summaries to ECC as well as concerned Managing Director, Gas Pipelines company, on whose information summaries were prepared by petitioner--- National Accountability Bureau authorities had not arraigned any other person who was part of decision and caused colossal loss to national exchequer---Investigating officer had not examined members of ECC and the Cabinet which was a case of pick and choose---Petitioner was not a beneficiary or got monetary benefits from principal accused---Case of petitioner fell within purview of further inquiry---Pre-arrest bail granted was confirmed in circumstances.

(d) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional Petition---Pre-arrest bail, refusal of---Case of further inquiry---Benamidar---Money laundering---Petitioner was accused of money laundering for principal accused and sought confirmation of pre-arrest bail---Validity--- Principal accused in connivance with petitioner amassed assets in Pakistan and abroad illegally---Petitioner was receiving cash from principal accused and placed same into his Bank accounts and subsequently layered same into other accounts---Principal accused at relevant time when he was Minister of Petroleum visited Karachi, met petitioner and handed over him cash, received through gratification/ illicit money for disguising---Petitioner used to deposit same into his own accounts then withdrew same intermittently for purchasing properties in Pakistan or abroad---Petitioner used to make payment through pay order or demand draft and then intimated principal accused through coded conversation after completion of transaction---Petitioner was front man and benamidar of principal accused---Details of bank accounts of petitioner and other material collected during investigation indicated abnormal transactions beyond his well-known source of income---Petitioner had not been able to make out a case for grant of relief including concession of bail---High Court rejected grant of bail to petitioner and recalled granting ad-interim pre-arrest bail---Petition was dismissed in circumstances.

National Accountability Bureau through Chairman v. Aamir Lodhi and another PLD 2008 SC 697; Aamir Bashir and another v. The State and others 2017 SCMR 2060; Khalil Ahmed Soomro and others v. The State PLD 2017 SC 730; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Lal Muhammad Kalhoro and others v. The State 2007 SCMR 843; Zaigham Ashraf v. The State and others 2016 SCMR 18; Mansoor ul Haque v. Government of Pakistan PLD 2008 SC 166; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Anwar Saifullah Khan v. The State 2001 SCMR 1040; Dilmurad v. The State 2010 SCMR 1178; Civil Petitions Nos.194, 298 and 304 of 2018 and Criminal Bail Application No.812 of 2000 ref.

Shaukat Hayat for Petitioner (in C.P. No.2262 of 2016).

Muhammad Akram Javed, Special Prosecutor NAB and Abdul Jabbar Rajput, DAG for Respondents (in C.P. No.2262 of 2016).

Muhammad Ishaque Khan for Petitioner (in C.P. No.841 of 2016).

Muhammad Akram Javed, Special Prosecutor NAB and Abdul Jabbar Rajput, DAG for Respondents (in C.P. No.841 of 2016).

Obaid ur Rehman Khan for Petitioner (in C.P. No.1356 of 2016).

Muhammad Akram Javed, Special Prosecutor NAB and Abdul Jabbar Rajput, DAG for Respondents (C.P. No.1356 of 2016).

Sikandar Zulqarnin for Petitioner (in C.P. No.3026 of 2016).

Muhammad Akram Javed, Special Prosecutor NAB and Abdul Jabbar Rajput, DAG for Respondents (in C.P. No.3026 of 2016).

2019 Y L R 815

[Sindh]

Before Muhammad Ali Mazhar, J

The STILLMAN'S COMPANY (PVT.) LTD. through Chief Executive Officer---Plaintiff

Versus

S.M. ANEES and another---Defendants

Suit No.1826 of 2017, decided on 31st December, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction / interim / interlocutory order, grant of--- Principles--- Exercise of discretion by the Court---Non-disclosure or concealment of pending or previous litigation sufficient to disentitle a party from equitable relief of temporary injunction---Irreparable loss / injury---Scope---Relief of injunction was discretionary and an equitable relief which a party could not claim as a matter of right and he who seeks equity must come to the court with clean hands---Before grant of such relief, conscience of the court had to be satisfied that the party seeking such relief had not acted inequitably and concealment of factum of earlier litigation was contumacious and inequitable and such concealment disentitled a party to grant of discretionary relief of injunction---Party seeking temporary injunction was duty bound to bring necessary facts about any previous litigation before the Court and complete disclosure about previous connected, related or relevant proceedings and orders was essential and unless non-disclosure of the same could be satisfactorily explained, a claimant should not, as a matter of general principle, be granted interim relief---Party seeking temporary injunction must also satisfy the court that an interference was necessary to protect it from the species of injury which the court called "irreparable loss" before the legal right could be established---For adjudication of the question of granting or withholding preventive equitable relief, an injury was set to be irreparable either because no legal remedy furnished full compensation for it or if there was no adequate redress for such injury or there existed inherent ineffectiveness of legal remedy for such injury.

Popular Food Industries Ltd. v. Maaza International Company LLC and another 2004 CLD 1509; J.N. Nichols (Vimto) PLC v. Mehran Bottlers (Pvt.) Limited, Karachi PLD 2000 Kar. 192; Pioneer Cement Limited v. Fecto Cement Limited and others PLD 2013 Lah. 110 and Akbar and others v. Abdul Ghafoor and others 2000 SCMR 1000 distinguished.

Mst. Saeeda v. Province of Punjab and others 2013 CLC 454; Sajjad Ahmed v. Chairman, Capital Development Authority and others 2016 CLC 896; Mst. Salma Jawaid and others v. S.M. Arshad and others PLD 1983 Kar. 303 and 2002 CLD 120 rel.

Maaza International Company LLC v. Popular Food Industries Ltd. and another 2004 CLD 171; Muhammad Haroon and another v. F.Y. and Brothers and another 1986 MLD 930; Jamshed Aslam Khan v. Mrs. Azra Jawed and others 1995 CLC 436; Messrs Dewan Sugar Mills (Pvt.) Ltd. v. M.B. Abbasi and others 2007 YLR 2672; Muhammad Saleem Warind v. Mazhar and others 2015 CLD 655; Messrs Tri-Star Industries (Pvt.) Ltd. v. Messrs Trisa Bursten Tabrik A.G. and others 1999 YLR 638; Vifor (International) Inc. v. Memon Pharmaceutical 2013 CLD 1531; The Wellcome Foundation Limited v. Messrs Karachi Chemical Industries (Pvt.) Ltd. 2000 YLR 1376; Lahore Chemical and Pharmaceutical Works Ltd. v. Unilever N.V. Netherland 2000 CLC 547 and Malik Safdar Hussain v. Irfan Ahmad Ayyub and another 2014 CLD 1310 ref.

Abdul Sattar Pirzada, Mamoon N. Chaudhry and Ms. Maryam Malik for Plaintiffs.

Ovais Ali Shah and Fayaz Ahmed Memon for Defendant No.1.

Arshad M. Tayebaly and Waqar Ahmed for Defendant No.2.

2019 Y L R 836

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

Dr. ANIS ZOHRA---Appellant

Versus

IIIrd JUDICIAL MAGISTRATE, DISTRICT SOUTH, KARACHI and 2 others---Respondents

Criminal Acquittal Appeal No.S-90 of 2011, decided on 22nd December, 2017.

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

----S. 14---Exclusion of time of proceeding bona fide in Court without jurisdiction---Due diligence---Scope---Where a litigant had not acted in a bona fide manner or had acted without due diligence, in prosecuting remedies before a wrong forum, he could not be benefited under S.14, Limitation Act, 1908.

Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 rel.

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

----S. 417---Appeal against acquittal---Procedure---Appeal against acquittal in a case instituted upon a complaint, can only be filed upon the grant of a special leave by the High Court in terms of subsection (2) of S.417, Cr.P.C. within 60 days of the acquittal judgment or order---Direct appeal against acquittal cannot be entertained under subsection (3) of S. 417, Cr.P.C.---Under subsection (2-A) of S.417, Cr.P.C. any person aggrieved by an order of acquittal has a statutory right to file an appeal to the High Court within 30 days of acquittal judgment or order without applying for a special leave.

Noor Naz Agha for Appellant.

Shaikh Altaf Ahmed for Respondent No.2.

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

Date of hearing: 14th December, 2017.

2019 Y L R 839

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

MUHAMMAD ANWAR QURESHI---Applicant

Versus

MUHAMMAD AYOOB and 4 others---Respondents

Cr. Misc. Application No.S-210 of 2017, decided on 20th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 435---Calling of record of subordinate Court in revision---Criminal proceedings, stay of---Scope---First Information Report was registered in respect of alleged trespass to his property by the applicant against the respondents; after registration of the FIR, applicant instituted a civil suit in respect of the said property---Said FIR culminated in criminal case and was proceeded by the Judicial Magistrate---Complainant/ applicant moved application to stay criminal proceedings, which was dismissed by the Judicial Magistrate---Said order was assailed by the applicant before the first appellate court, which was also dismissed---Validity---Record showed that criminal case was close to its conclusion as all the material witnesses had been examined---Staying the said proceedings, in circumstances, would be against the interests of justice---Civil suit appeared to have been filed for determination of ownership rights in the subject property, whereas the criminal proceedings related to allegations of trespass--- Civil proceedings and criminal proceedings, were mutually exclusive---Application being without merit was dismissed in circumstances.

Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Sheraz Ahmad and others v. Fayyaz-ud-Din and others 2005 SCMR 1599; Riaz-ul-Haq v. Muhammad Ashiq Jorah and others 2000 SCMR 991; A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353; Abdul Haleem v. The State and others 1982 SCMR 988 and Muhammad Tufail v. The State and another 1979 SCMR 437 ref.

Muhammad Aslam v. The State and others 2017 SCMR 390; Seema Fareed v. State 2008 SCMR 839; Messrs Trust Investment Bank Ltd. through Authorized Officer v. Government of Sindh through Secretary Home and 3 others 2016 MLD 278; Gulan v. The State and 2 others 2015 YLR 190; Muhammad Junaid Pasha v. Faisal Saleem and 2 others 2014 CLD 1646 and Muhammad Saleem and 2 others v. Khuda Bux and 4 others 2003 MLD 266 rel.

Jagdish R. Mullani for Applicant.

Shahid Ahmed Sheikh, Dy. Prosecutor General for the State.

Date of hearing: 20th February, 2018.

2019 Y L R 874

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

IMRAN MODI---Petitioner

Versus

MIZHAR UDDIN (FEROOQUI) and 2 others---Respondents

High Court Appeal No.165 of 2017, decided on 24th July, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VII, R. 11---High Court appeal---Rejection of plaint---Violation of interim order---Effect---Cause of action---Stages---Plaintiff was aggrieved of order passed by Single Judge of High Court whereby his plaint was rejected for non-compliance of interim order---Validity---Failure of plaintiff to honor interim order could not lead to rejection of plaint specially when said order stood recalled by the court---When hearing injunction application all material available on record could be evaluated but in determination of whether a plaint was liable to be rejected, only plaint and its accompaniments were required to be examined---Where plaint disclosed a cause of action when suit was filed, same could not be returned solely on grounds that said cause of action was lost during pendency of proceedings---Division Bench of High Court set aside order passed by the Single Judge of High Court---High Court Appeal was allowed accordingly.

Al Meezan Investment Management Company Limited and others v. WAPDA First Sukuk Company Limited and others PLD 2017 SC 1; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 and Khan Muhammad and others v. Ghulam Rasool and others PLD 1987 Lah. 71 rel.

Aamer Nawaz Warriach for Appellant.

Ahmed Jawaid for Respondent No.1.

Date of hearing: 21st May, 2018.

2019 Y L R 887

[Sindh]

Before Khadim Hussain M. Shaikh and Amjad Ali Sahito, JJ

KAMRAN alias KAMI alias KAMOO and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.6 of 2010, decided on 6th April, 2018.

(a) Criminal trial---

----Prosecution---Duty and function of---Prosecution, primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence for conviction of accused person; from the evidence if it came to the conclusion that the charges so imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled to acquittal.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qatl-i-amd, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Way and manner, the prosecution witness had painted the picture of the crime, spoke a lot that he was not at all the witness of crime, but a chance witness---Presence of said witness on the day of incident at the venue of occurrence had created doubt---Prosecution witness, did not disclose the role of any of the accused in the identification parade before the Magistrate---When no role had been assigned to accused by said witness, then such identification parade had lost its evidentiary value in the eye of law---Prosecution witness had made mala fide and dishonest improvements---Said conduct of making such improvements had rendered him absolutely unreliable witness, who had no respect for truth and/or was capable of telling lie and changing his statement as and when it suited him---Crime empty was kept in the Police Station for about four months; no explanation in that regard had been offered as to why said crime empty was not dispatched immediately to the Forensic Science Laboratory after its recovery---Such unexplained delay, could not offer any corroboration to the ocular testimony, which had destroyed the evidentiary value of said piece of evidence---Prosecution had failed to prove the presence of eye-witness at the scene of occurrence; whose presence was also not supported by the other witnesses---Ocular account of said eye-witness was conflicting with medical evidence---All said factors, pointed towards the real possibility that the murder in issue had remained un-witnessed---Prosecution had failed to bring home the guilt of accused beyond reasonable doubt---Trial Court had not evaluated the evidence in its true perspective and reached to an erroneous conclusion by holding accused person guilty of offence---Conviction and sentence awarded to accused persons, were set aside and they were acquitted of the charge by extending them benefit of doubt.

Mst.Sughra Begum and another v. Qaiser Pervaiz and another 2015 SCMR 1142; Ali Sher and others v. The State 2008 SCMR 707; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Mst. Daulan v. Sardara and 5 others 1995 SCMR 177; Dr. Khalid Moin and others v. The State 2006 PCr.LJ 639; Muhammad Inayat v. The State 1998 SCMR 1854; Wahab Ali and another v. The State 2010 PCr.LJ 157; Shafqat Mehmood and others v. The State 2011 SCMR 537; Muhammad Rafique v. The State 2014 SCMR 1698; and Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 distinguished.

Shaikh Muhammad Amjad v. The State PLD 2003 SC 704; Arab Gul v. Mir Shah Baz and another 2004 PCr.LJ 1138; Zakir Khan and others v. The State 1995 SCMR 1793 and Muhammad Amin v. The State PLD 2006 SC 219 ref.

Muhammad Ali v. The State 2017 SCMR 1468; Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Zaman v. The State 2014 SCMR 749; Sardar Bibi and others v. Muneer Ahmed and others 2017 SCMR 344 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

(c) Criminal trial---

----Chance witness---Evidentiary value---Testimony of chance witness, ordinarily, was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---Presumption under the law would operate about his absence from the crime spot---Testimony of chance witness, in rare cases, could be relied upon, provided that there was some convincing explanation appealing to the prudent mind for his presence on the crime spot, otherwise his testimony would fall within the category of suspected evidence and could not be accepted without pinch of salt.

(d) Criminal trial---

----Benefit of doubt---Principles---Single doubt would be enough for acquittal of accused---Rule of benefit of doubt was essentially a rule of prudence who could not be ignored while dispensing the justice in accordance with law.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Abdul Razzak for Appellant.

Ali Haider Saleem, Deputy Prosecutor General for the State.

Dates of hearing: 22nd, 28th February and 1st March, 2018.

2019 Y L R 911

[Sindh]

Before Adnan Iqbal Chaudhry, J

CPLC - NEIGHBORHOOD CARE through Ahmed Moinuddin and 4 others--Plaintiffs

Versus

FEDERATION OF PAKISTAN, through Secretary for Ministry of Housing and Works and 15 others---Defendants

Suit No.1808 of 2017, decided on 24th July, 2018.

(a) General Clauses Act (X of 1897)---

----S. 6---Implied repeal---Principle---Generally, no repeal can be implied in absence of an express repeal unless it can be established that the two statutes/ provisions are inconsistent with each other and cannot co-exist.

Mumtaz Ali Khan Rajban v. Federation of Pakistan PLD 2001 SC 169 and Zaheer Ahmed Chaudhry v. CDGK 2006 YLR 2537 rel.

(b) Karachi Building and Town Planning Regulations, 2002---

----Reglns.18-4.2.1, 18-4.2.2 & 18-5---Suit for declaration and injunction---Residential building used for commercial purposes--- Principle---Plaintiffs were residing in neighborhood of suit property which was a residential plot and defendants started using it for commercial purposes--- Validity---Suit property was not converted to amenity plot for education purpose under Regln. 18-4-2.2 read with Regln. 18-5 of Karachi Building and Town Planning Regulations, 2002---Suit property did not face a 60 feet wide road so as to qualify for conversion under Regln. 18-4.2.2 of Karachi Building and Town Planning Regulations, 2002---Use of suit plot for education purpose without its conversion for such use was an act prohibited by Regln. 18-4.2.1 of Karachi Building and Town Planning Regulations, 2002, and was therefore unlawful---Where restrictive covenant in lease of suit plot was also manifested in Regln. 18-4.2.1 of Karachi Building and Town Planning Regulations, 2002, and which legislation was also for the benefit of residents/ plaintiffs, restrictive covenant contained in the lease of suit plot could be invoked by plaintiffs---High Court restrained defendants from putting suit plot to any other use except residential until final disposal of the suit---Application was allowed in circumstances.

Hussain Bux Memon v. KBCA 2015 YLR 2448; Naz Shaukat Khan v. Yasmeen R. Minhas 1992 CLC 2540; Ardeshir Cowasjee v. Muhammad Naqi Nawab PLD 1993 Kar. 631; Arif v. Jaffar Public School 2002 MLD 1410 and City Schools v. Federation of Pakistan 2018 CLC Note 4 ref.

Ameen Mohammad Bandukda and Salman Ahmed for Plaintiffs.

Muhammad Ali Lakhani for Defendant No.6.

Ishrat Zahid Alvi for Defendants Nos. 10 to 16.

Date of hearing: 22nd and 28th May, 2018.

2019 Y L R 932

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

ATTIQUE-U-REHMAN and 6 others---Applicants

Versus

KHADIM HUSSAIN and 6 others---Respondents

Civil Revision Application No.S-58 of 2017, decided on 26th October, 2018.

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

----Art. 79---Suit for declaration---Gift---Ingredients---Proof of gift---Procedure---Contention of plaintiffs was that they were entitled to inherit the suit property and gift deed in favour of defendant had been managed by him---Suit was decreed concurrently--- Validity---Beneficiary of transaction was bound to prove the same by convincing evidence---Registration of oral gift was not necessary---Once gift was claimed to be in writing then same was to be proved as required by law for proving a document---Defendant being beneficiary of gift was bound to prove the same by convincing evidence---No attesting witness of gift deed had been examined by the defendant to prove its genuineness---Withholding of attesting witnesses of gift deed would operate against the claimant---Defendant had failed to prove the execution of gift deed in his favour---Mere admission of making thumb impression before Sub-Registrar would not be sufficient to rebut the challenges if made towards genuineness of a document---Gift would be valid whenever offer was made by the donor and it was accepted by the donee with delivery of possession of property gifted out---If donor having made a gift yet continued to exercise any act of ownership over gifted property then it would be sufficient to hold such claimed gift as invalid---Defendant had admitted that all the brothers and sisters were residing in the suit house---Possession of suit property was not delivered to the defendant, in circumstances---Alleged gift was invalid in the present case---Revision was dismissed, in circumstances.

Faridullah Shah and others v. Syed Inamullah Shah Bacha and others 2016 YLR 1248; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Muhammad Ishaq v. Junan and others 2014 CLC 548; Khurshid Anwar Jalil and others v. Muhammad Hafeez Mirza and others 2003 CLC 1695; Ch. Muhammad Boota v. Mst.Bano Begum 2003 CLC 485; Abdul Haque and others v. Mst. Aasi through L.Rs. and others 2009 CLC 510 and Mst.Hayatan Mai v. Mst.Aziz Mai alias Azizi through L.Rs. 2016 YLR 539 ref.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 and Rasheda Bibi v. Mukhtar Ahmed 2008 SCMR 1384 rel.

Abdul Rehman Bhutto for Applicants.

Rafique Ahmed Abro for Respondent No.1.

Gulshan Dayo for Respondent No.2.

Asif Raza Pathan, State counsel.

Date of hearing: 22nd October, 2018.

2019 Y L R 941

[Sindh]

Before Nazar Akbar, J

FAIZ-UL-HASSAN and 2 others---Petitioners

Versus

Sh. ABDUL RASHEED and 2 others---Respondents

C.P. No.S-1989 of 2016, decided on 23rd November, 2018.

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

----Ss. 15 & 16---Limitation Act (IX of 1908), Ss. 5 & 3---Ejectment petition---Defence, striking off--- Review, jurisdiction of---Dismissal of appeal filed after period of limitation---Condonation of delay---Sufficient cause---Scope---Petitioner/tenant was aggrieved of Rent Controller's order whereby it struck off his defence and dismissed two applications for review---Appellate Court dismissed the appeal, being barred by time---Plea of petitioner was that limitation did not run against void ab initio orders---Validity---Rent Controller had no power to review his order---Rent Controller had rightly passed a judicial order on the application under S. 16(2), Sindh Rented Premises Ordinance, 1979 since it was within its power to pass such order---Petitioner, had not taken the plea, before the appellate court, that limitation was not applicable as order was void ab initio---Only ground raised before the Appellate Court was that petitioner was out of city, hence the delay, such was not a sufficient ground---Use of word "shall" in S.3 of Limitation Act, 1908 made it mandatory for the court to dismiss the appeal which was filed after lapse of prescribed period of limitation---Constitutional petition was dismissed.

Mst. Parveen Begum v. Habib Gul and another 1997 MLD 2473 distinguished.

Muhammad Ramzan Tabassum for Petitioners.

Mumtaz Hussain Bhatti for Respondent No.1.

Muhammad Aurangzeb for Intervener.

2019 Y L R 951

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

SADARUDDIN and 3 others---Petitioners

Versus

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

C.P. No.D-1832 of 2016, decided on 26th September, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Application for registration of case against petitioners was allowed by Ex-officio Justice of Peace---Petitioners had contended that respondent's application for registration of case against them for the murder of deceased, was refused by the SHO---Petitioners alleged that it was a case of road accident and complainant party had approached Senior Police Officer through an application; enquiry was conducted and statement of independent witness was recorded and was surfaced that deceased died due to road accident on motorcycle--- Validity--- Criminal Procedure Code provided mechanism to inquire into cause of death even on complaint of accidental matters but involvement of Senior Police Officer or permission was not required---In the present case, pre-trial was conducted by the Police Officer when no FIR was registered---Prima facie, act of Police Officials was based on mala fide intention and ulterior motives and there was clear departure from their mandatory obligations---Station House Officer was required to record the statement of any informer, if cognizable offence was made out, SHO was to incorporate the same in the Book as provided under S. 154 Cr.P.C.---Direction issued by the Ex-Officio Justice of Peace was strictly in accordance with law as it was duty of police to uncover the crime and examine the evidence for proper disposal of the complaint---Impugned order deserved no interference, constitutional petition was disposed of accordingly.

Bhagwan Das Bheel for Petitioners.

Suleman Dahri for Respondent No.3.

Shahid Shaikh, A.P.G.

2019 Y L R 954

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Irshad Ali Shah, JJ

MIANDAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-134 of 2017, decided on 29th March, 2018.

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

----S. 9(c)---Possessing and trafficking narcotic---Appreciation of evidence---Benefit of doubt---If complainant and his witness had proceeded to the place of incident together with the rest of Police personnel, on spy information, then they were, under lawful obligation to have associated with them independent person to witness the possible arrest and recovery, but it was not done for no reason; which had rendered the proceeding as doubtful one---One shopper was found containing seven pieces of charas, weighing six K.Gs.---Samples were drawn from each and every piece of charas so secured---Samples so drawn were not weighed, marked and sealed individually which rendered the proceedings doubtful---Evidence of the complainant and witness, were not inspiring confidence so as to rely to maintain conviction and sentence of accused---Evidence of Mashir, was silent with regard to preparation of mashirnama of place of incident at the dictation of Inspector---No reliance could be placed upon mashirnama of place of incident---Samples of charas sent to Chemical Examiner, were delivered to him with delay of one day, without any explanation for such delay---Samples separated from six pieces were found ten in number by Chemical Examiner on desealing---No explanation was offered by prosecution for such discrepancy---Prosecution, having not been able to prove its case against accused beyond shadow of doubt, accused was entitled to its benefit---Conviction and sentence awarded to accused by the Trial Court by way of impugned judgment could not sustain---Accused was acquitted from the charge in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

(b) Criminal trial---

----Benefit of doubt---If simple 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 and concession, but as a matter of right.

Ameenuddin Khaskheli for Appellant.

Abdul Rehman Kolachi, D.P.G. for the State.

Date of hearing: 22nd March, 2018.

2019 Y L R 966

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs PHARMACIE PLUS through Group Administration Head---Appellant

Versus

ABDUL LATIF and another---Respondents

F.R.A. No.22 of 2017, decided on 7th May, 2018.

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

----Ss. 7, 8, 17 & 24--Sindh Rented Premises Ordinance (XVII of 1979), S. 8---Eviction of tenant---Fair rent---Scope---Terms of agreement not in consonance with the prevalent law---Effect--- Enhancement/increase in monthly rent during/expiry of the tenancy---Scope---Question was as to whether law prohibited parties to re-determine the quantum of rent within three years, than the one agreed originally in the agreement---Respondent/ Landlord moved an application for the enhancement of rent along with eviction petition, which application was allowed by the Rent Controller in the light of two clauses incorporated in the agreement between the parties stipulating that rent of the rented premises would be increased @ 7% after every eleven months---Rent Controller subsequently struck off the defense of the tenant for non-compliance to deposit enhanced monthly rent and passed order for eviction of the tenant---Appellant/tenant contended that the term of the agreement, regarding enhancement of rent, was not in consonance with the law and he kept depositing rent without enhancing the rate, in the office of Rent Controller till the said office suddenly refused to receive the same---Landlord contended that the very agreement between the parties stipulated the enhancement of rent during and even at the expiry of the tenancy--- Validity---Section 7 of Cantonments Rent Restriction Act, 1963 provided a remedy of increase by way of fair rent and further prohibited any increase once determined under S. 7, Cantonments Rent Restriction Act, 1963---Parties, in the present case, had agreed for enhancement of rent in the existing rent by 7% within three years---Section 8 of Cantonments Rent Restriction Act,1963 provided that once rent was determined and fixed under S. 7, Cantonments Rent Restriction Act, 1963 it would not be lawful, either with or without consent of a tenant, to increase the rent unless addition, improvement or alteration was made in the building other than by ordinary or usual repairs at the expense of landlord---Section 7(5), Cantonments Rent Restriction Act, 1963 provided that when fair rent of the building had been fixed by the Rent Controller or where the rent of the building had been determined by an agreement between landlord and tenant, no further increase in the fair rent would be permissible , during the continuance of tenancy, within a period of three years from the date fixed by the Rent Controller or from the date of agreement---Addition, alteration and improvement could entitle the parties to re-negotiate the quantum of rent---Landlord had not claimed enhancement in rent on the basis of making some addition, alteration or improvement---Definition of "fair rent" under Sindh Rented Premises Ordinance, 1979 was different than the one provided in Cantonments Rent Restriction Act, 1963---Rent agreed mutually in an agreement was also deemed to be the fair rent within the meaning provided under S.7(5) of Cantonments Rent Restriction Act, 1963---Held, enhancement in rent, in the present case, was made within three years of execution of agreement, contrary to S.7(5) & S. 8 of Cantonments Rent Restriction Act, 1963, and no enhancement could be made unless the recourse to the provision regarding improvement/alteration was fulfilled---Eviction petition also including ground of personal requirement---High Court, in view of said ground remanded the matter to Rent Controller for its disposal in accordance with law---Appeal was allowed accordingly.

Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC 190; Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642 and Muhammad Yousuf v. Abdullah PLD 1980 SC 298 distinguished.

Kashif Hanif for Appellant.

Muhammad Zahid Kabeer for Respondents.

Date of hearing: 26th April, 2018.

2019 Y L R 979

[Sindh]

Before Adnan Iqbal Chaudhry, J

ANSAR ALI---Plaintiff

Versus

ALTAF AHMED MEMON and 2 others---Defendants

Suit No.1518 of 2007, decided on 9th August, 2018.

Specific Relief Act (I of 1877)---

----Ss. 12, 19 & 29---Contract Act (IX of 1872), S. 74---Suit for specific performance of agreement to sell---Maintainability---Failure of plaintiff to deposit balance sale consideration in the court---Effect---Breach of contract---Compensation, grant of---Contention of defendant was that plaintiff did not pay the balance sale consideration on or before the date fixed for performance of agreement to sell and same stood cancelled and advance payment had been forfeited---Trial Court directed the plaintiff to deposit the balance sale consideration in the Court but same was not deposited---Validity---Parties had agreed that agreement to sell would stand cancelled if seller refused or buyer defaulted leaving them to claim refund, penalty and forfeiture as the case might be---If court had decided that specific performance ought not to be granted and contract was broken by the defendant then it could award compensation if plaintiff was entitled to it---Plaintiff, in the present case, was not entitled to specific enforcement of sale agreement---Section 29 of Specific Relief Act, 1877 barred the plaintiff from subsequently suing for compensation for breach of contract if his suit for specific performance was dismissed---Questions whether plaintiff was entitled to discretion in the refund of advance payment made and/or compensation for alleged breach by the defendant, and alternatively, whether defendant was entitled to forfeit the advance payment was to be decided being still open---Suit would survive to the extent of compensation, in circumstances.

Muhammad Shoaib v. Jamila Khatoon 2015 YLR 1213 ref.

Liaquat Ali Khan v. Falak Sher PLD 2014 SC 506; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Rashid Naseem v. Amina Fahim PLD 2009 Kar. 390; Athar Jamath Majith v. T. Krishnaswami Naidu AIR 1955 Madras 591; Smt. Shakuntla Devi v. Harish Chandra AIR (29) 1952 Allahabad 602; Kashi Parsad v. Baiju Paswan AIR 1953 Patna 24; Province of West Pakistan v. Messrs Mistree Patel and Co. PLD 1969 SC 80 rel.

Muhammad Ishaq for Plaintiff.

Shahzad Bashir for Defendant No.1.

Pervaiz Ahmed Mastoi Assistant Advocate General for Defendant No.2.

Dates of hearing: 9th and 14th May, 2018.

2019 Y L R 989

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Mohammad Karim Khan Agha, J

CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION through Authorized Representative and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior

and others---Respondents

C.P. No.D-3669 of 2014, decided on 14th May, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23---"Freezing" and "restraining transfer of property"---Distinction---Provisions of Ss. 12 & 23 of National Accountability Ordinance, 1999 are quite distinct sections with different meanings and different legal consequences.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 12, 18(c), 19 & 23---Caution letter from NAB authorities---Dues, withholding of---Scope---Karachi Port Trust withheld amount of petitioner company on basis of letter issued by NAB informing initiation of inquiry in the matter---Validity---Provision of S. 23 of National Accountability Ordinance, 1999 was itself a self-executing section which would automatically come into effect once NAB opened an inquiry or investigation into an offence under National Accountability Ordinance, 1999 which cautioned that any property that was subject matter of inquiry could not be transferred or charge allowed to be created thereon and that was in event that any transfer of any right, title or interest or creation of charge on such property took place, it would be void and that any person who transferred property or had created a charge on such property was subject to prosecution---Letter in question had simply put Karachi Port Trust on notice that S. 23 of National Accountability Ordinance, 1999 was applicable to petitioner and Karachi Port Trust and it could not direct Karachi Port Trust to withhold amount of loss caused to national exchequer from running bill of accused persons---Letter in question could only warn Karachi Port Trust that if it would transfer any property or created any interest over property or paid any monies allegedly owed by petitioner to national exchequer, it might be subject to legal consequences as set out in S. 23 of National Accountability Ordinance, 1999---High Court set aside a direction contained in letter in question whereby Karachi Port Trust was restrained from release of amount to petitioner and letter otherwise remained intact---Karachi Port Trust was allowed to act as it deemed fit keeping in view the fact that it was aware of S. 23 of National Accountability Ordinance, 1999 and caution imposed by NAB---Constitutional petition was allowed accordingly.

Chaudhry Muhammad Akram Warraich v. Chairman, National Accountability Bureau, Islamabad and others 2010 YLR 2766 rel.

Haider Waheed for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB for Respondent.

Mahmood Alam Rizvi for Respondent No.3.

Aijaz Ahmed Qureshi, Deputy Chief Inspector Stamps on Court Notice.

Dates of hearing: 21st February, 21st March, 30th April of 2018.

2019 Y L R 1000

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Arshad Hussain Khan, JJ

MUHAMMAD BASHEER and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-301 of 2006, decided on 6th February, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 2200-grams opium in a shopper was recovered from the possession of accused---Accused disclosed that co-accused had delivered the same to him---Both the accused and co-accused were arrested---Out of 2200-grams opium, 50-grams were sent to the chemical analyzer---Accused after completion of his sentence had been released from the prison and his appeal had been dismissed as not pressed---Record showed that the complainant who was also Investigating Officer of the case arrested the present accused from Railway Station but he did not associate any independent person from the place of incident though private persons were available at the place of occurrence---Evidence showed that the place of incident was also surrounded by the shops and hotels and it was day time incident but despite that fact, the complainant did not make any effort to collect any private person from the locality to witness the recovery proceedings---Evidence of Police Officials though was as good as that of any other witness but when the whole prosecution case rested upon the Police Officials and hinged upon their evidence and non-association of private witness in the recovery proceedings created doubt in the prosecution case---Investigating Officer of the police or such other force, under S.25 of Control of Narcotic Substance Act, 1997, was not authorised to exclude independent witnesses and do away with principle of producing the best available evidence---No specific bar existed under the law against the complainant who was also Investigating Officer of the case, but being the complainant, it could not be expected that as an Investigating Officer he would collect any material which go against the prosecution and give benefit to the accused---Evidence of such officer, therefore, was a weak piece of evidence and for sustaining a conviction it would require independent corroboration which was lacking in the present case---Due to non-association of independent witness as mashir in the present case, false implication of the accused persons could not be ruled out---Opium was recovered from the possession of accused on 6.9.2004 but the Report of Chemical Examiner showed that it was sent to the office of Chemical Examiner on 16.7.2004 about two months prior to the incident---Record did not show that as to through whom the case property was sent to the Chemical Examiner---Prosecution had failed to establish the safe custody of opium at Malkhana during the intervening period---Safe transit to the Chemical Examiner had also not been proved---Chemical Examiner had not been examined who was the best witness to corroborate the evidence of prosecution in respect of the examination of case property, therefore, adverse presumption would be taken---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused persons were acquitted, in circumstances.

Nazir Ahmed v. The State PLD 2009 Kar. 191; Muhammad Khalid v. The State 1998 PCr.LJ 808 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

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

----S. 103---Search to be made in presence of witness---Object---Prime object of S.103, Cr.P.C. was to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused. [p. 1005] C

(c) Criminal trial---

----Benefit of doubt---Principle---Single doubt in the prosecution case, would be sufficient for recording acquittal.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Abdul Hameed Bajwa and Miss Nasira Shaikh for Appellants.

Lutufullah Arain, D.A.G. and Syed Meeral Shah Bukhari, A.P.G. for the State.

Appellant present on bail.

Date of hearing: 6th February, 2018.

2019 Y L R 1016

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Mohammed Karim Khan Agha, J

GULSHER AHMED CHACHAR and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and others---Respondents

C.Ps. Nos. No.D-4659, D-7188, D-6613, D-6830 and D-7294 of 2017, decided on 28th March, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(v)---Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Mens rea--- Determination---Scope---Finding determination of mens rea in respect of accused persons has to be decided by Trial Court after hearing all the evidence in the case---Pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on part of complainant or investigating agency.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Prima facie case---Petitioner was accused facing investigation under National Accountability Ordinance, 1999 for misusing his authority and misappropriation of crores of rupees---Validity---Petitioner was fully on-board with other official co-accused persons in misusing/failing to exercise his authority and thereby misappropriating crores of rupees by stealing urea from godown which he was supposed to safeguard---Such fact was illustrated by statement under S. 161, Cr.P.C. of prosecution witness which set out modus operandi of scam and implicated official accused persons---Sufficient material was available on record to prima facie connect petitioner to offence for which he had been charged in reference---Petitioner failed to prove mala fide on the part of National Accountability Bureau authorities---Pre-arrest bail was dismissed in circumstances.

Rai Mohammed Khan v. NAB 2017 SCMR 1152 ref.

(c) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)-Constitution of Pakistan, Art. 199---Bail, grant of---Front man, status of---Prima facie case---Petitioner was arrested during investigation under National Account-ability Ordinance, 1999 for misusing his authority and misappropriating crores of rupees---Validity---Petitioner operated four bank accounts on behalf of three co-accused persons which accounts were used in scam---Approximately Rs. 1 billion was moved by him between various accounts of three co-accused and their companies---Petitioner even used his own account to route some of such money in order to hide source of funds which was a result of scam---When his office was raided, cheque books in the name of a company containing blank cheques which he had already signed were recovered via seizure memo which fully linked him to the company and its accounts of which he was a Director---Petitioner was fully connected to scam through banking documents available on record---Petitioner was front man of three co-accused in connection with urea scam who was fully implicated by prosecution witness in his statement under S. 161, Cr.P.C.---Sufficient material was available on record to prima facie connect petitioner to offence for which he was charged in the reference---Bail was declined in circumstances.

Rai Mohammed Khan v. NAB 2017 SCMR 1152 ref.

Bhajandas Tejwani for Petitioner (in C.P. No. D-4659 of 2017).

Shahab Sarki and Ali Asghar Buriro for Petitioner (in C.P. No.D-7188 of 2017).

Faisal Shahzad for Petitioner (in C.P. No.D-6613 of 2017).

Mian M. Bashir for Petitioner (in C.P. No.D-6830 of 2017).

Khawaja Muhammad Azeem for Petitioner (in C.P. No. D-7294 of 2017).

Yassir Siddiqui, Special Prosecutor NAB for Respondents.

Dates of hearing: 1st, 14th and 16th March, 2018.

2019 Y L R 1037

[Sindh (Hyderabad Bench)]

Before Muhammad Junaid Ghaffar and Irshad Ali Shah, JJ

The STATE/ANTI NARCOTICS FORCE through Assistant Director---Applicant

Versus

3RD ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE CNS COURT HYDERABAD---Respondent

Criminal Revision Application No.D-18 of 2018, decided on 29th June, 2018.

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

----S. 540---Summoning of witness---Scope---Law empowered the court to examine any person as a witness at any stage of trial---Section 540, Cr.P.C. enabled the court to impose a duty on it to summon any person as a witness who otherwise could not be brought before the court---Section 540, Cr.P.C. consisted of two parts, one had given discretionary powers to the court and other imposed obligation on the court.

Jamatraj Kewalfi Govani v. State of Maharashtra AIR 1968 SC

178 rel.

(b) Criminal trial---

----Technicalities---Scope---Technicalities were to be avoided by the court while dispensing the justice to arrive at right conclusion.

Nawabzada Shah Zain Bugti and others's case PLD 2013 SC 160 rel.

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

----S. 540---Material witness, summoning of---Scope---Application moved by prosecution for summoning of incharge Malkhana and the official who took the case property to Chemical Examiner, was dismissed by Trial Court---Validity---Record showed that it was the case of prosecution that on recovery of the contraband substance, it was kept in police Malkhana and then it was sent to the Chemical Examiner for chemical analysis---In such situation, the examination of the said witnesses was essential for just decision of the case---Revision was allowed by setting aside the impugned order and trial court was directed to summon and examine the said witnesses.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Muhammad Ayoub Kassar, Special Prosecutor ANF for Applicant.

Faqir Rehmatullah Hisbani for Respondent.

Date of hearing: 29th June, 2018.

2019 Y L R 1040

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD BACHAL---Appellant

Versus

MUHAMMAD ARIF MEMON---Respondent

IInd Appeals Nos. 14 and 15 of 2011, decided on 24th May, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S. 55---Registration Act (XVI of 1908), S. 16---Suit for specific performance of agreement to sell---Limitation---Time as essence of contract---Plea of plaintiff was that he was ready to pay balance sale consideration but defendant had failed to perform his part of contract---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Execution of agreement to sell had been admitted by the defendant---Admitted facts did not need to be proved---Agreement to sell, was not a registered document and protection granted under S.16 of Registration Act, 1908 was not amenable to it---Defendant was bound to obtain sale certificate of suit property but no such application was moved by him for obtaining the said certificate---Plaintiff had deposited the balance sale consideration before the Trial Court---Plaintiff was ready to perform his part of agreement to sell in circumstance---Time ordinarily would not be essence for the contract of immovable property---Mere mentioning a specific date for performance of contract would not make the time as essence of contract---Trial Court committed illegality and irregularity while dismissing the suit---Impugned judgment passed by the Appellate Court did not call for interference---Second appeal was dismissed, in circumstances.

2001 CLC 1029; PLD 1962 SC 01; 2004 SCMR 584; 2004 SCMR 1140; 1999 CLC 1076; 2000 CLC 643; PLD 2003 SC 430 and 2016 CLC 553 ref.

2015 SCMR 21 rel.

Jehangir Pathan for Appellant.

Naimatullah Soomro for Respondent.

Date of hearing: 21st May, 2018.

2019 Y L R 1055

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

AAMIR HAMEED and another---Appellants

Versus

Messrs ALLOO AND MANOCHER DINSHAW CHARITABLE TRUST through one of the four trustees and 14 others---Respondents

H.C.A. No.6 of 2015, decided on 2nd March, 2018.

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

----O. VII, R. 11---Plaintiffs filed suit for declaration, injunction and recovery of damages and same was dismissed without recording of evidence in exercise of powers under O. VII, R. 11, C.P.C.---Validity---Even if any of relief was barred or found to be barred by law, under O. VII, R. 11, C.P.C., a plaint could not be rejected in piecemeal if otherwise one of prayers contained in plaint was found to be maintainable---Suit filed by plaintiffs was maintainable and same should not have been dismissed under O. VII, R. 11, C.P.C. which provision of law only permitted rejection of plaint and not dismissal of suit---Fair trial and due process were Fundamental Rights of each and every litigant---Division Bench of High Court set aside order passed by Single Judge of High Court and remanded matter for decision afresh on merits---Intra court appeal was allowed in circumstances.

Anjuman Araian, Behra v. Abdul Rashid and others PLD 1982 SC 308 and Muhammad Tariq Mahmood and 2 others v. Anjuman Khasmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335 ref.

Mst. Jan Ara and others Muhammad Zubair and others 2012 CLC 1630; Dr. Mohomed Aqeel Khan and others v. Mst. Dr. Shaharyar and others 1987 MLD 2809 and Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 rel.

(b) Administration of justice---

----Technicalities---Effect---Law prefers decisions of cases on merits and discourages technical knockout---Purpose behind legal and codal formalities and procedure is nothing but only to ensure safe administration of justice and avoid/thwart chances of injustice/miscarriage of justice.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

(c) Damages---

----Onus to prove---Principles---Onus of proof for damages lies on shoulders of plaintiff / claimant and without discharging such onus of proof, damages cannot be granted straight away---Even a fixed amount of damages cannot be granted until and unless quantum of loss/damages actually suffered is proved through sufficient evidence.

Muhammad Jawed Bangash for Appellants.

Zafar Iqbal Dutt for Respondent No.2.

Shahid Iqbal Rana for Respondent No.5.

Usman Tufail Shaikh for Respondent No.6.

Chaudhry Arif Majeed for Respondent No.7.

Ms. Nasreen Sahito for the State.

Date of hearing: 8th February, 2018.

2019 Y L R 1080

[Sindh]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

TARIQ IKRAM and 4 others---Appellants

Versus

Lt. MOHAMMAD SOHAIL ANJUM KHAN and 9 others---Respondents

High Court Appeal No.274 of 2002, decided on 3rd April, 2018.

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

----S. 12---Co-operative Societies Act (VII of 1925), S. 27--- Transfer of title--- Nominee--- Entitlement---Limitation---Plaintiffs were legal heirs of deceased owner of suit property whereas defendants were legal heirs of the holder of power of attorney which was executed by nominee of the deceased owner---Suit filed by plaintiffs was decreed in their favour by single Judge of High Court---Plea raised by defendants was that their predecessor-in-interest had sale agreement in their favour supported by power-of-attorney--- Validity---Predecessor-in-interest of defendants did not file suit for specific performance of agreement to sell during life time of deceased owner of suit property---Record was also silent as to why predecessor-in-interest of defendants remained quite during his lifetime and defendants after his death remained quite regarding enforcement to alleged agreement to sell till filing of suit by plaintiffs---Alleged agreement to sell on the basis of which defendants asserted their rights in suit property had no value in the eye of law---Question of limitation, waiver, estoppel or acquiescence on the part of plaintiffs for not challenging alleged sale agreement did not arise at all---Nobody would become owner of property by entering into sale agreement as mere contract of sale by itself did not create any interest or charge on such property---Status of nominee was merely of a trustee of the owner of property and after demised of original owner, nominee had not become owner of the property and the same devolved upon legal heirs of the original owner---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court, as there was no perversity, illegality and incorrectness in the same and all facts and documents involved were appreciated---High Court appeal was dismissed in circumstances.

Syed Hakeem Shah through L.Rs. and others v. Muhamad Idrees and others 2017 SCMR 316; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Haji Rehmadil v. The Province of Balochistan and another 1999 SCMR 1060; Abdul Sattar v. Mst. Sardar Begum and 12 others 1992 SCMR 417; Karim v. Hajyam Hanifa and 4 others PLD 1970 Kar. 613; Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; Chiiya Corrugated Board Mills Limited v. M. Ismail and another 1992 CLC 2524 and Habib Bank Limited v. Paragon Industries (Pvt.) Limited through Chief Executive and 5 others 2009 CLD 1346 distinguished.

Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37; Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104; Mrs. Tahira Dilawar and 6 others v. Ghulam Samdani and 4 others 1995 SCMR 246; Fazal Shah v. Muhammad Din and others 1990 SCMR 868; Kamal Afzal Farooqui represented by Legal Heirs v. Begum Shahzada Farooqui 1989 CLC 110 and Mst. Rehmat Bibi and others. v. Punnu Khan and others 1986 SCMR 962 ref.

Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367 and Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416 rel.

(b) Islamic law---

----Inheritance---Upon death of a Muslim owner, movable or immovable property devolves on his legal heirs and the same is to be distributed or transferred in accordance with Islamic Law of inheritance---Legal heirs of deceased Muslim owner need not seek any authorization or declaration.

Muhammad Nawaz and others v. Fateh Sher and others 2008 SCMR 1658; Mst. Reshman Bibi v. Amir and others 2004 SCMR 392 and Ghulam Shabbir, and others v. Mst. Bakhat Khatoon and others 2009 SCMR 644 rel.

(c) Transfer of Property Act (IV of 1882)---

----S. 54---Transfer of title---Principle---Person cannot transfer better title than he himself has.

Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others 2010 SCMR 18 rel.

Mushtaq A. Memon for Appellants.

K.B. Bhutto for Respondents Nos. 1 to 7.

None present for Respondents Nos. 8, 9 and 10 though served.

Date of hearing: 18th December, 2017.

2019 Y L R 1104

[Sindh]

Before Abdul Maalik Gaddi, J

SALEEM AKHTAR QURESHI---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 131 of 2018, decided on 7th June, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Application to Ex-officio Justice of Peace for registration of FIR was dismissed---Allegedly, accused obtained loan of Rs. 95,14,98,101/- from a Bank and applicant stood his guarantor for the said loan---Accused did not return the loan and the Bank filed case against him and the applicant as guarantor in respect of said amount---Accused dishonestly issued a cheque of Rs. 45,00,00,00/- to the applicant for fulfilment of his obligation, which was dishonoured---Applicant moved application to the SHO for registration of a case and upon his reluctance, approached the Ex-Officio Justice of Peace, for ordering registration of FIR who dismissed the application---Contention of accused was that the cheque was misplaced and in that regard information was conveyed to the concerned authorities on 12.2.2015, but no such FIR had been registered by accused against anybody---Validity---Record revealed that tentatively the case pertained to cheating/forgery and there was documentary evidence on record to take cognizance of the case by the concerned authorities, but no action had been taken---Station House Officer concerned was required and bound to record the statement of the applicant under S.154 Cr.P.C.; SHO had no power to refuse to record the statement of applicant, if from information/statement a cognizable offence was made out---Information so provided was false or correct was not material---Information must disclose a cognizable offence---Investigating Officer was to ascertain whether the information was true or false under the law---If information was false then Police Officer was empowered to register a case against complainant under the relevant provision of P.P.C.---If information disclosed offence, which was not cognizable by the police even then SHO was required and bound under S. 155 Cr.P.C. to record same in a Station Diary of Police Station and referred the informant to the Magistrate having territorial jurisdiction---Station House Officer could refuse to enter the information in FIR book or in Station Diary of the Police Station, if no offence at all was made out---In the present case, matter had been scrutinized minutely by the Ex-Officio Justice of Peace, which was not the requirement of law---Application was turned down mainly on the ground that the parties were already under litigation, but it did not mean that no criminal case could be filed by any complaint, if any cognizable offence was committed by anybody---In the present case, applicant on the basis of dishonoured cheque as well as on the basis of cheating/forgery intended to lodge FIR against the proposed accused, which was to be adjudged at the time of recording statement of the applicant whether the same was with bona fide or mala fide intention---Ex-Officio Justice of Peace was required to see as to why SHO had failed to perform his statutory duty---Deeper appreciation at the time of registration of FIR was not required---Circumstances established that impugned order was not sustainable under the law, thus the application was allowed by setting aside the impugned order---Station House Officer was directed by the High Court to record the statement of the applicant in verbatim, and if such statement reflected that the ingredients of cognizable offence were available he would register FIR against accused.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Kounjan v. Station House Officer Lakhi Ghulam Shah and others 2016 PCr.LJ 112; Mst. Haseena v. Station House Officer Police Station Kotdiji and others 2015 PCr.LJ 790; Muhammad Hanif v. Station House Officer of Police Station Naushero Feroz and others 2013 PCr.LJ 449; Younas Abbas and others v. Addl. Sessions Judge Chakwal PLD 2016 SC 581; Imtiaz Ahmed Cheema SHO v. Station House Officer, Police Station Dharki, Ghotki and others 2010 YLR 189 and Altaf Hussain v. Station House Officer, Police Station, Mahotta and others 2015 YLR 798 ref.

Shahadat Awan for Applicant.

Shahid Ikram Siddiqui for proposed accused.

Sagheer Abbasi, Assistant Prosecutor General, Sindh for the State.

2019 Y L R 1117

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

ANWAR HUSSAIN and 2 others---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos.18 to 21 of 2018, decided on 16th August, 2018.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---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 weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that police received spy information that persons belonging to askari wing of a political party having a large quantity of arms and ammunition were going towards graveyard---Police rushed at the pointed place and said persons while seeing the police party tried to hide themselves---Five persons started firing upon police party with intention to kill them and to deter the police officials from performing their lawful duties---Police, in retaliation, also fired at the accused persons, and police apprehended three persons with kit while two of them escaped---Huge quantity of weapons and ammunitions were recovered from the possession of the accused persons, for which no valid licences of their respective weapons were produced---Record showed that police had proceeded to the pointed place after receiving spy information about the availability of five terrorists belonging to one political party; if it was believed then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery, it was not done by them for no obvious reason---In such situation, police proceeding to the place of incident appeared to be doubtful---Witnesses had stated that they reached to the place of incident at 12.25 a.m., apprehended the accused persons after encounter, recovered arms and ammunition, those were sealed, mashirnama of arrest and recovery was prepared at the spot---Mashirnama revealed that it was prepared at 12.30 a.m.; if it was so then what about the time consumed in apprehending the accused persons, making inquiry, conducting their search and affecting the recovery---No explanation to it had been offered by the prosecution---Preparation of mashirnama of arrest and the recovery allegedly at the place of incident, in circumstances, was doubtful---Evidence reflected that complainant in his cross-examination had admitted that no arrival or departure entry was kept at police station---Complainant had admitted that nobody was injured from the either side nor police mobile was damaged due to firing---No specific marks of weapon were shown in the mashirnama---Investigating Officer had admitted in his cross-examination that no entry of recovery and encounter was made in the roznamcha of police station---Investigating Officer had not secured any empty bullets from the place of incident---Investigating Officer had admitted that all the weapons secured from the possession of the accused persons were without number and the pistol was not in working condition so also one Kalashnikov--- Forensic Science Laboratory Report did not support the version of the prosecution, as the report showed that the recovered arms and ammunitions were not in working condition---Investigating Officer sent case property to the Forensic Science Laboratory with the delay of seven days and reasons of such delay had not been explained---Defence plea was that the accused persons were in custody of the police before registration of the case but said plea had been disbelieved by the trial court without assigning cogent reason---Arrest of accused persons before registration of case was published in daily newspaper, which created doubt upon the story of the prosecution---Circumstances established that prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Appeal was allowed and accused were acquitted, in circumstances, by setting aside convictions and sentences recorded by the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Imran Meo for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondent.

2019 Y L R 1126

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD AHSAN through Attorney---Petitioner

Versus

SHAHID KHAN YOUSUFZAI and 2 others---Respondents

Constitution Petition No. S-1406 of 2017, decided on 30th May, 2018.

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

----S. 17---Eviction of tenant---Wilful default---Denial of relationship of landlord and tenant by tenant---Scope---Evaluation of the evidence adduced by the parties where tenant simply denied the relationship--- Scope--- Petitioner/ landlord contended that he was absolute and exclusive owner of two shops (rented premises) which were let out to the respondent on verbal terms---Landlord submitted that tenant was not paying rent since April 2014 and had not increased the rent despite requests---Respondent/tenant contended that two Courts below had rightly dismissed the eviction petition as he (petitioner) failed to produce any document in support of his ownership of rented premises---Validity--- Respondent / tenant had produced, before the High Court, a copy of lease deed bearing a date of year 2017 in his support to challenge the rival fact that the petitioner was owner of demised property---Said mischievously carved instrument was not present/ available before the Courts below---Both the Courts below upheld the occupancy of the demised shops by the respondent as said Courts were seemingly obsessed with the idea that no relationship of landlord/tenant existed between the parties---Respondent had denied the very status of landlord subsequent to his induction in the premises as tenant by the petitioner---Such stance had disentitled the respondent from seeking equitable relief in eviction petition, rather outcome of the eviction petition would be based on the evaluation of evidence produced by the rival parties ---If the evidence of the landlord relating to his entitlement was better in quality and quantity and the tenant had simply denied relationship and claimed that he was not occupant of rented premises owned by landlord but no evidence was brought on record to legitimize his occupancy, Courts were bound to give favour to the landlord---High Court, after consideration of the material on record and the evidence, reached to the conclusion that both the orders of the Courts below were flawed on account of non-application of judicial mind---High Court set aside the impugned orders passed by both the Courts below with direction to the tenant to handover possession to the landlord---Constitutional petition was allowed, in circumstances.

2007 SCMR 128 and 1998 SCMR 415 ref.

Ms. Humera Zahoor for Petitioner.

Muhammad Hayat Mughal and Wali Muhammad Jamari, A.G. for Respondents.

2019 Y L R 1146

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Amjad Ali Sahito, JJ

MUHAMMAD WARIS and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.D-05 of 2012, Criminal Acquittal Appeal No.D-15 and Criminal Revision Application No.D-33 of 2011, decided on 10th May, 2018.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Withholding material evidence---Effect---Prosecution case was that the accused and co-accused persons armed with deadly weapons assaulted on complainant party---Accused made straight gun-shot fire at the father of the complainant with intention to commit his murder, which hit him and he fell down---Co-accused persons while abusing fired straightly upon them but they fell down---Injured was shifted to hospital but he succumbed to injuries---Motive behind the occurrence was alleged to be matrimonial affair between the party---Record showed that the charge was framed against accused and three co-accused persons, while the role attributed to co-accused was of directly firing at the complainant party but the evidence of the complainant and his witness was disbelieved by the trial court, which concluded in acquittal of two of them---Ocular account of the incident was furnished by complainant and his brother---Said witnesses had tried to support the case of prosecution but on deeper analysis, their testimony was found inconsistent---Complainant had identified all the accused persons present in the court to be same except two but the FIR reflected their names with specific role of directly firing at the complainant party---Complainant had admitted that he and his brother neither received any injury nor bullet or pellet marks hit their motorcycle and that he could not say that how many fires were made by accused upon them---Said witness had stated that he himself went to police station for obtaining letter and his father died 15/20 minutes after his reaching at hospital---Version of complainant was belied by his brother/ eye-witness, who in his examination-in-chief had deposed that complainant went to police station for lodging the FIR by leaving him and a witness; in his cross-examination, witness had deposed that the place of incident was busy road, and co-accused persons fired about five fires, they also went away by firing and they consumed 10/20 minutes---Versions of both the said witnesses was contradictory to author (police official) of FIR, who in his cross-examination deposed that the complainant came at police station along with his 4/5 relatives for lodging the FIR---Said official witness had admitted that complainant came at police station along with deceased, he inspected his injuries and then recorded the FIR---Complainant and other eye-witness, in circumstances had not successfully established themselves to be natural witnesses---Complainant assigned role to the accused of firing at his father from his gun and there was no distance between his father and accused, which showed that accused allegedly fired from his gun by contacting gun with body of the deceased---If accused fired from such a distance then burning, blackening and charring would occur with its gun powder, which was not present---Circumstances suggested that presence of accused at the venue of occurrence created doubt when the rest of accused were standing in front of complainant party and they fired upon them but they did not receive a single bullet or pellet injury---Complainant did not identify two co-accused in the court when he himself nominated the said co-accused in the FIR with specific role of firing at the complainant with their respective weapons then his presence at the venue of occurrence was under a cloud---Eye-witness in his evidence though had implicated two co-accused in his statement recorded under S. 164, Cr.P.C. that they duly armed with respective weapons were present at the place of incident with specific role but he did not identify both of them in the court---Said witness, in cross-examination, admitted that accused fired upon his father at a distance of about five feet when they were sitting on the same motorcycle but they did not receive any pellet injury---Admittedly, when any person fired from gun then the pellets would spread---Said witness had admitted in his cross-examination that rest of the accused fired from their respective weapons upon the complainant party except deceased from distance of five feet but they did not receive pellet injuries and his father died at hospital after about 30/35 minutes on arrival there---Presence of the witness at the venue of occurrence was also under clouds---Record showed that one of the eye-witnesses of the incident had not been examined by the prosecution for no obvious reason, then the presumption would be drawn under illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984, that if he had been produced and examined in the case, he would have been unfavourable to the prosecution case---Prima facie, failure of the complainant and his eye-witness in giving any reasonable explanation for accompanying the deceased was sufficient to bring the claim of eye-witnesses as doubtful---Medical Officer had stated that injured expired in hospital after 15 minutes and injuries sustained by him were from single fire shot at the distance of about 25/30 feet---Second Medical Officer, in his evidence deposed that deceased had received entry wound caused by discharge from fire-arm behind three feet---Both the Medial Officers had not found any burning, blackening and charring including gun-powder on the wounds of deceased, while if any fire was made from the distance of 01 to 03 feet, then the blackening would occur---Complainant though had disclosed the motive as matrimonial affair in the FIR but no tangible substance was brought on record by him to justify his version that any deep rooted enmity existed between the parties, which resulted into the incident---No recovery of crime weapon was effected to connect the accused with commission of alleged offence---Pistol was secured on the lead of co-accused but neither the complainant nor his eye-witness had identified him in the court despite implicating him with specific role in the FIR as well as in the statement recorded under S. 164, Cr.P.C.---Circumstances established that the presence of eye-witnesses at the place of occurrence at relevant time was doubtful and the medical evidence had belied the ocular account furnished by the complainant party thus, prosecution had failed to establish the guilt against the accused beyond shadow of any reasonable doubt---Appeal against acquittal was dismissed accordingly.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Evidence of eye-witness---Scope---If the eye-witnesses had been disbelieved against some accused persons, who had been attributed effective roles, then the same eye-witnesses could not be believed against co-accused persons---Such evidence required strong independent corroboration for recording conviction.

Imtiaz alias Taj v. The State 2018 SCMR 344 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in prudent mind then its benefit would be extended in favour of the accused not as a matter of grace or concession, but as the matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Safdar Ali Bhutto for Appellant (in Criminal Appeal No.D-5 of 2012).

Habibullah Ghouri for the Complainant (in Criminal Appeal No.D-5 of 2012).

Habibullah Ghouri for Appellant (in Criminal Acquittal Appeal No.D-15 of 2011).

Abdul Rasool Abbasi for Respondent (in Criminal Acquittal Appeal No.D-15 of 2011).

Habibullah Ghouri for the Petitioner (in Criminal Revision Application No.D-33 of 2011).

Safdar Ali Bhutto for Respondent (in Criminal Revision Application No.D-33 of 2011).

Abdul Waheed Bijarani, Assistant Prosecutor General for the State.

2019 Y L R 1161

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

GHULAM SARWAR JAGIRANI---Appellant

Versus

HUSSAIN BUX JAGIRANI---Respondents

Criminal Jail Appeal No.S-06 of 2013, decided on 29th October, 2018.

(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, unlawful assembly---Appreciation of evidence---Prosecution case was that the accused with co-accused, allegedly after having formed unlawful assembly and in prosecution of their common object, being armed with deadly weapons, fired and killed the deceased---Complainant had stated that accused party while armed with deadly weapons assaulted on deceased, made firing upon him, while they were going to civil court to attend the proceedings of a case, as a result of which he died, because he had dispute with them over a material affair---Fires hit at mouth, chest and arm of the deceased---Complainant and witnesses raised cries and accused went away---Complainant and witnesses then took the dead body of the deceased to the hospital, for post-mortem---Report of the incident was lodged the next day---Complainant was subjected to cross-examination but he stood by his version on all material points---Record showed that eye-witnesses had not been examined by the prosecution as they had died of natural death---Trial Court had observed that deceased witnesses attended the Trial Court regularly but it was the accused, who deliberately avoided the proceeding of the case---If the accused had not adopted such tact then both of the said witnesses would have been examined by the prosecution long before their deaths---Accused, in circumstances, could not be permitted to take benefit of non-examination of said witnesses by taking the plea that there was no evidence against him except that of the complainant---Non-examination of said witnesses could not be taken as withholding of evidence---Evidence of the complainant on ocular premises was found to be reliable, which could not be ignored only to benefit the accused---Availability of the complainant at the place of incident even otherwise was indicated in sketch of vardat, which was prepared by tapedar, who at the time of his examination before the Trial Court was not cross-examined even by the accused through his counsel---Accused had not attempted to establish that on the relevant date and time the complainant, witnesses and deceased were not going for attending the hearing of case at civil court---In absence of such challenge, the presence of the complainant at such venue and time, brought him out of being a chance-witness and made him a natural witness, which gave strength to the evidence of complainant---Circumstances of the case showed that accused with weapons going towards a certain place in company of other accused having motive to kill would always prima facie show common object of such person unless he himself had established otherwise---In the present case, no such attempt was made by the accused, therefore, act of accused was rightly found to be with common object of such assembly---Official witnesses had fully supported the case of prosecution---Accused, in circumstances, could not be extended benefit of doubt under the pretext that the report of Chemical Examiner had not been produced before the Trial Court in accordance with law---Circumstances established that the accused persons acting in furtherance of their common intention had committed qatl-i-amd of deceased by causing him fire shot injuries---Accused had rightly been convicted and sentenced by the Trial Court by way of impugned judgment calling no interference---Appeal against conviction was dismissed, in circumstances.

Ramachandran and others v. State of Kerala 2012 SCMR 1156 rel.

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

----S. 302--- Qatl-i-amd--- Solitary statement--- Conviction--- Scope---Conviction could be based on a testimony of a witness, if the same passed the test of being confidence inspiring, natural and direct one.

Farooq Khan v. The State 2008 SCMR 917 rel.

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

----Art. 129(g)---Withholding of material witness---Scope---If the prosecution deliberately withheld evidence of any material witness, it would not prejudice the effects of Art. 129(g) of Qanun-e-Shahadat, 1984.

(d) 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, unlawful assembly---Appreciation of evidence---Delay of one day in lodging the FIR---Deliberation and consultation---Scope---Record showed that there was delay of one day in lodging of the FIR, but such delay alone was not sufficient to be taken as fatal for the prosecution---Delay, if was not explained plausibly, might have given rise to a circumstance towards chances of deliberation; however, it should be the accused to establish that such delay was deliberate and with intention to falsely rope the innocent---Delay of one day, in the present case, was explained by the complainant plausibly in the FIR itself---No suggestion was made to the complainant during course of his cross-examination that he had lodged the FIR of the incident with police after due deliberation---Circumstances impliedly reflected that the delay in lodging the FIR being natural was not disputed by the accused himself at trial.

Muhammad Zubair v. State 2007 SCMR 437 rel.

Habibullah Ghouri for Appellant.

Syed Tahir Abbas Shah for the Complainant.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 Y L R 1167

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

DELHI MERCANTILE MUSLIM COOPERATIVE HOUSING SOCIETY LTD. through Honorary General Secretary---Appellant

Versus

ALAMGIR WELFARE TRUST INTERNATIONAL through Managing Trustee and another---Respondents

High Court Appeal No.333 of 2016, decided on 10th July, 2018.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Relief of damages---Maintainability of suit---Plaintiff was owner of suit shop in which defendant was tenant and ejectment proceedings were pending before Rent Controller---Plaintiff also filed suit for declaration, injunction and recovery of damages on same cause of action regarding same shop and had also sought interim relief---Single Judge of High Court declined to grant interim relief on the ground that suit was not maintainable---Validity---Single Judge of High Court considered lack of prima facie case made out before him coupled with the view taken regarding malafides of plaintiff and further maintained that defendant would be subjected to an unmerited detriment if injunctive relief was granted, as such the same demonstrated that balance of convenience must be evaluated by Court when considering interim relief so that any order passed could not be employed as an aid towards injustice---Damages were claimed in addition to prayers of declaratory and injunctive relief---Dismissal of application for interim relief could not per se translated into the entire suit being rendered non-maintainable, especially in view of the factum that there was a prayer for damages---Determination of damages was to be on its own merits rendered by the single Judge of High Court uninfluenced by any observation contained in order in question---Intra-court appeal was dismissed in circumstances.

Parmeshwari Das Khanna v. Bhola Nath Parihar AIR 1981 Delhi 77; Kamal Malhotra and others v. Mahender Singh ILR (2010) Supp.(4) Delhi 697; Manakarani Hazra and others v. Mohinder Singh Jaggi and another AIR 1968 (sic) 418; Dr. Haider Ali Mithani and another v. Ishrat Swaleh and others PLD 1999 Kar. 81; Salim Industries Limited v. Messrs Burhani Co. and another 1982 CLC 973; Messrs Sign Source through Partner v. Humayun H. Baig Muhammad 2007 YLR 2287; Muhammad Jamil v. Mst. Zohra Begum and others 1998 CLC 776; Aijaz Ahmed Zubairi v. The Xth Civil Judge and Rent Controller, Karachi and 4 others 1984 CLC 3445; Industrial Development Bank of Pakistan v. Allied Bank of Pakistan and another PLD 1986 SC 74; M. K. Abbasi v. United Bank Ltd. 1983 CLC 482 and Salim Foot-Wear v. Abdul Hakim and another 1982 CLC 1406 distinguished.

Mst. Saeeda v. Province of Punjab and others 2013 CLC 454; Puri Terminal Ltd., v. Government of Pakistan through Secretary, Ministry of Communications and Railways Islamabad and 2 others 2004 SCMR 1992; Irshad Hussain v. Province of Punjab and others PLD 2003 SC 344 and Syed Weedhal Shah through Legal heirs and others v. Province of Sindh through Deputy Commissioner, Khairpur and others 2002 SCMR 777 rel.

Basil Nabi Malik for Appellant.

Asim Iqbal and Ms. Mariyam for Respondent No.1.

2019 Y L R 1181

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD DIN through Legal Heirs and another---Petitioners

Versus

Mst. KAUSAR JEHAN through Attorney and 2 others---Respondents

C.P. No.S-817 of 2018, decided on 16th April, 2018.

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

----Ss. 2(f), 15 & 18----Eviction of tenant---Denial of relationship of landlord and tenant by the tenant---Legal status of the eviction petitioner objected by the tenant---Scope---Eviction petition---Maintainability---Words "owner" and "entitled to receive" in S.2(f), Sindh rented Premises Ordinance, 1979---Scope---Petitioner/tenant contended that respondent(lady) was not competent to file eviction petition against him as she had yet to prove gift deed, regarding demised premises, in her favour by her deceased husband and said gift was never complete in her favour as possession was with him (tenant)---Petitioner submitted that he was tenant of her late husband and was continuously paying the monthly rent in the Court in his (husband's ) name as demised premises was yet to be transferred to the legal heirs of the original owner---Respondent (lady) contended that her father-in-law was original owner of the whole property who gifted/transferred half of the said property( including demised premises) to her late husband and she, being a legal heir, was competent to move the Rent Controller---Validity---Section 2(f) of Sindh Rented Premises Ordinance, 1979 stipulated the definition of 'landlord' which not only included "owner" but also 'entitled to receive'---Succession opened the moment he died and his legal heir(s) became the owner even without such entry in record of rights---Ownership earned through inheritance thus, was not necessarily dependent upon entry/mutation in record of rights---After the demise of original owner his legal heirs would be construed as 'owner' and could file the ejectment petition without any Letter of Administration thus, ejectment petition filed by the lady was maintainable---Tenant had admitted the status of husband of the lady as 'landlord' and he even acknowledged that he (petitioner), on refusal of the husband of the lady to accept the rent, started depositing the rent in the name of husband of the lady---Relationship of landlord and tenant between husband of the lady and the tenant was never a matter of dispute---Since the husband of the lady had died leaving the her as one of the legal heirs (widow), therefore, ejectment petition was maintainable and absence of Letter of Administration , caused no prejudice to competence and maintainability of ejectment petition---Plea of the petitioner raised with reference to gift became of no use---Status of the 'tenant' did not give him any other right except that to retain possession of the premises till legal continuity of the tenancy, he(tenant) in absence of any other direct or indirect legal character, could not question the title of the landlord particularly in rent proceedings---Inclusion of gift in S. 18 of Sindh Rented Premises Ordinance, 1979 also affirmed that validity of a gift would not be questioned merely for reason of physical delivery of possession of premises which was under tenancy---Constructive delivery of possession would be sufficient on transfer of title---Tenant was not legally entitled to change of ownership and once a notice, within meaning of S. 18 of Sindh Rented Premises Ordinance, 1979, was served, the tenant had to honour his obligation and legally could not question change of ownership whether the same be through sale, gift etc---Husband of the lady, admittedly, had served a notice upon the petitioner and in consequence thereof the petitioner started depositing rent in the Court thus, the petitioner was never legally justified in raising said plea---Jurisdiction under Art. 199 of the Constitution could not be invoked merely for the reason that a different conclusion was possible---No illegality or infirmity having been noticed in the impugned orders passed by the two Courts below, constitutional petition was dismissed accordingly.

Mst. Subhan v. Allah Ditta and others 2007 SCMR 635; Muhammad Haanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214 ref.

Adnan Ahmed for Petitioners.

Nemo for Respondents.

2019 Y L R 1214

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUHAMMAD UMER DAHRI---Appellant

Versus

ACHAR and 8 others---Respondents

Criminal Acquittal Appeal No.D-307 of 1996, decided on 15th May, 2018.

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

----Ss. 302, 504, 323, 114, 147 & 148---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, intentional insult with intent to provoke breach of peace, value of diyat, abettor present when offence was committed, rioting, rioting armed with deadly weapon---Appreciation of evidence---Appeal against acquittal---Prosecution case as per private complaint was that accused persons assaulted on the complainant party with deadly weapons, due to which cousin of complainant died and two persons received injuries---Trial Court acquitted the accused---No application for grant of special leave to appeal from the order of acquittal having been submitted before the court, present appeal was not maintainable in the eyes of law---Record transpired that all the prosecution witnesses were closely related to the deceased and there was dispute between the parties---Independent persons were attracted at the time of incident but the prosecution had failed to examine them at trial---Complainant had claimed to be the eye-witness of incident but a witness in cross-examination had stated that complainant was not present at the time of incident---If the complainant was present at the time of incident, he would have also sustained injuries but no injury was caused to him---Circumstances suggested that it was against human conduct that close relatives of the complainant were receiving injuries but the complainant did not come forward to rescue them---Time of incident in the direct complaint as well as in the FIR was different---First Information Report mentioned that incident took place at 11.30 a.m., whereas in the direct complaint filed after twenty five days, it was mentioned that the incident took place at 9.30 a.m.---One of the accused had admitted that he sustained injuries during the occurrence but the injured witnesses suppressed injuries of accused as such, their evidence was not reliable---Motive stated in the FIR was that incident occurred due to dispute over water rotation, but in the direct complaint, it was mentioned that cattle of the complainant party were snatched by the accused persons, which resulted the incident---Blood-stained earth was collected from the place of incident which had been shown in the direct complaint and not from the place of incident which had been shown in the FIR---Circumstances established that there was no merit in the appeal against acquittal---Acquittal recorded by Trial Court in favour of accused was based upon sound reasons, which required no interference---Appeal against acquittal being without merits was dismissed in circumstances.

Anwar Shamim and another v. The State 2010 SCMR 1791; Ghulam Abbas v. The State 2008 SCMR 1352; Noor Muhammad v. The State and another 2005 SCMR 1958; Khizar Hayat v. The State 2001 SCMR 429; Ijaz Ahmed v. The State 2009 SCMR 99; Samiullah and another v. Jamil Ahmed and another 2008 SCMR 1623; Zulfiqar Ahmed and another v. The State 2001 SCMR 492; Muhammad Nawaz v. The State 2005 PCr.LJ 1939; State through Advocate-General, Sindh and Ex-Officio Public Prosecutor v. Ashraf and another 1984 PCr.LJ 226; Mst. Shamim Akhtar v. Saifur Rehman and 3 others 1995 PCr.LJ 1466; Muhammad Nadeem alias Nadeem Hussain v. The State and another 2017 YLR 2291; Ghulam Yasin v. The State 2014 YLR 1283; Muhammad Moin v. Haji Pathan and 7 others 2017 PCr.LJ 535; Mst. Naseeban Khatoon and another v. The State 2014 YLR 899 and Muhammad Zahir and another v. Shah Saeed and 2 others 2016 PCr.LJ 1821 ref.

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

----Ss. 417 & 410---Appeal against acquittal and appeal against conviction---Appreciation of evidence---Principles---Appreciation of evidence in the case of appeal against conviction and appeal against acquittal were entirely different.

Ghous Bux v. Saleem and 3 others 2017 PCr.LJ 836 rel.

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

----S. 417---Appeal against acquittal---Scope---Interference in appeal against acquittal was narrow and limited because the accused would be presumed to be innocent until proved guilty.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Hakim Ali Siddiqui for Appellant.

Syed Madad Ali Shah for Respondents along with Respondents.

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

2019 Y L R 1247

[Sindh]

Before Muhammad Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

JAVED IQBAL---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 3 others---Respondents

Constitution Petition No. D-883 of 2018, decided on 29th May, 2018.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 3--- National Accountability Ordinance (XVIII of 1999), S. 18(g)---Exit Control List---Placement of name---Pendency of inquiry and investigation---Standard Operating Procedure (SOP) of National Accountability Bureau---Scope---Petitioner was aggrieved of placing of his name on Exit Control List by authorities due to inquiry by National Accountability Bureau--- Validity---National Accountability Bureau had every right to inquire into offences which could have been committed under National Accountability Ordinance, 1999---Such inquiries and investigations could not go for an indefinite period and prevent a person's Constitutionally guaranteed right to travel abroad---Petitioner was subject to various NAB inquiries/investigations for over 2-½ years and till no reference was filed against him---Even as per NAB's own SOP, inquiry and investigation should have been completed well before time spent against petitioner and reference should have been filed if evidence before NAB justified such filing of reference under S.18(g) of National Accountability Ordinance, 1999---High Court set aside memorandum and directed Ministry of Interior, Government of Pakistan, to remove the name of petitioner from Exit Control List---Constitutional petition was disposed of accordingly.

Federation of Pakistan through Secretary M/o Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570; Syed Arsalan Iqbal v. Government of Pakistan through Secretary, Ministry of Interior, Islamabad and another 2015 YLR 1460; Muhammad Sadiq v. Federation of Pakistan through Secretary Interior and 2 others PLD 2016 Sindh 263; Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2016 Sindh 388; Ms. Ayyan Ali v. Federation of Pakistan and another SBLR 2018 Sindh 36; Rafique v. Federation of Pakistan and 2 others 2018 MLD 579; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan, through Secretary Finance, Islamabad and others PLD 2016 SC 808; Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186 and United Bank Limited v. Federation of Pakistan 2014 SCMR 856 ref.

Salman Hamid and Abbas Rizvi for Petitioner.

Yasir Siddiqui, Special Prosecutor, NAB and Muhammad Aslam Butt, D.A.G. for Respondents/Federation.

2019 Y L R 1260

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

NAZAR MUHAMMAD and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision Application No.D-22 of 2018, decided on 10th September, 2018.

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

----Ss. 6 & 23---Act of terrorism---Transfer of case---Robbery---Double murder---Accused were aggrieved of order passed by Trial Court declining to transfer case to court of ordinary jurisdiction---Validity---Accused persons had planned and robbed the deceased at his shop with firearms and robbery took place in broad daylight in bazaar where members of public were present and when owner of shop resisted the robbery, he was shot in cold blood in front of members of public---When other members of public tried to intervene, they were warned off by accused persons, threatening them with pistols---Another person who tried to intervene was again shot dead in cold blood by accused persons in front of public---While making their escape good, accused persons deliberately made aerial firing in order to scare off and terrorize public and in particular, minority community to whom victims belonged---High Court declined to interfere in order passed by Trial Court as same was based upon valid and sound reasons and was in consonance with provisions of relevant law---Accused persons failed to point out any legal infirmity in same as act of terrorism was carried out by accused persons during robbery, murders and aerial firing and same fell within purview of Anti-Terrorism Act, 1997---Revision was dismissed in circumstances.

Ishaq Ali v. The State and 2 others 2013 PCr.LJ 1808; Kashif Ali v. The Judge Anti-Terrorism Court II PLD 2016 SC 951 and Najam Un Nisa v. Judge Special Court 2003 SCMR 1323 rel.

Afzal Karim Virk for Applicants.

Shahzado Saleem Nahyoon, Deputy Prosecutor General for the State.

2019 Y L R 1277

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

SHAHAB-U-DIN---Appellant

Versus

The STATE---Respondent

Spl. Crl. A.T.As. Nos.25 and 26 of 2018, decided on 8th August, 2018.

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

----S. 7(ff)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possession of fire arms and explosives---Delay in dispatch of explosive substances to the ballistic expert---Appreciation of evidence---Benefit of doubt---Scope---Prosecution case was that police received spy information regarding presence of appellant in the graveyard for terrorist activity---Police party proceeded to the pointed place and found appellant in the graveyard, a bag was hanging in his shoulder, on seeing the police appellant tried to run away but he was surrounded and caught hold---Police recovered explosive substances from the bag---On account of non-availability of private witnesses, recovery memo was prepared in the presence of police constables---Trial Court convicted the appellant for possession of explosive substances without license---Validity---No effort was made by complainant (police official) to associate with him any private person to act as mashir---Though houses were situated around the graveyard---Appellant, as per prosecution case, was armed with pistols, repeater and explosive substance but he did not fire at the police party to escape, such conduct was against the nature of criminal minded person---Witness did not mention the number of 9MM pistol and 30 bore pistol---Another witness deposed that complainant did not seal the weapons separately---Prosecution could not explain overwriting in the arrival entry of police party---Two cellular phones were recovered from the possession of appellant but the Investigating officer did not collect the call data---No evidence of safe custody of the weapons at police station and safe transit to Chemical Examiner was available---Explosive substance was sent to Forensic Science Agency after about two months of the recovery---Explosives were sent to Ballistic Expert through a police constable but he was not examined by prosecution in order to prove safe transit to the expert---Appeals were allowed, convictions and sentences recorded by Trial Court were set aside and appellant was acquitted of the charges in circumstances.

Abdul Sattar and others v. The State 2002 PCr.LJ 51; Intekhab Ahmed Abbasi v. The State and others 2018 SCMR 495; Muhammad Parvaiz v. The State 2005 SCMR 1038; Abdul Wadood v. The State 2001 PCr.LJ 173; Muhammad Imran Afridi v. The State 2018 YLR 2394; State through Advocate-General Khyber Pakhtunkhwa v. Sadam and others 2016 PCr.LJ 1815 and Muhammad Umair v. The State 2017 MLD 1097 ref.

Kamal Din alias Kamala v. The State 2018 SCMR 577 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Shah Imroz Khan for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondent.

2019 Y L R 1292

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

ATHAR KHAN---Appellant

Versus

ABDUL MAJEED and others---Respondents

Criminal Acquittal Appeal No.D-27 of 2013, decided on 5th September, 2018.

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

----S.417(2A)---Appeal against acquittal---Limitation---Condonation of delay---Defaulting party while applying for condonation of delay must explain and account for each day of delay because on expiry of period of limitation a valuable right is created in favour of other party.

Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; The State v. Syed Ali Baqar Naqvi and others 2014 SCMR 671 and Mst. Sirajun-Munira v. Pakistan 1998 SCMR 785 ref.

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

----S.417(2A)---Appeal against acquittal---Judgment of acquittal should not be interjected until findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous---Scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of innocence is significantly added to the rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty.

The State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

(c) Criminal trial---

----Benefit of doubt---Appeal against acquittal---Accused is entitled to the benefit of doubt and that in an appeal against acquittal there is a double presumption of innocence.

Nisar Ahmed Durrani for Appellant.

Atif Ali Qazi for Private Respondents Nos. 1 and 2.

Syed Meeral Shah Bukhari Additional Prosecutor General for the State.

2019 Y L R 1301

[Sindh]

Before Muhammad Saleem Jessar, J

Mst. MEHRUNISA through Legal Heir---Petitioner

Versus

MUHAMMAD ASLAM PARACHA and 2 others---Respondents

C.P.S. No.1444 of 2017, decided on 3rd August, 2018.

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

----S. 17---Eviction of tenant---Personal bona fide need of landlord---Scope---Amount deposited as Pagri by the tenant---Effect---Petitioner/lady tenant contended that respondent was not co-owner of the property where the rented premises (flat ) was situated which fact was upheld by the Supreme Court in an earlier dispute between the parties---Validity---Petitioner although had relied upon the order passed by the Supreme Court which was passed leave to appeal, however, she did not make pointation to the subsequent order passed while hearing civil appeal wherein Supreme Court had observed in clear terms that respondent was also a co-owner of the rented premises---After nine months of passing of said order of the Supreme Court, respondent moved ejectment application so the plea taken by the tenant had no force that at the time of filing of the ejectment application the respondent was not holding status and legal character of co-owner---Petitioner in her written statement had herself admitted that she had been depositing monthly rent in the name of previous (deceased) owner and all the heirs including respondent---Petitioner, thus, by her own conduct had clearly admitted the respondent to be one of the co-owners/landlords of the property wherein the flat (rented premises) was situated---Sole testimony of the landlord was sufficient to establish his personal bona fide need---Statement of the landlord on oath, in the present case, was consistent with his averments made in the ejectment application---Landlord had the prerogative to select any of his properties for his need and the tenant had no right to raise any such objection and even the Rent Controller could not make any suggestion in that regard---If any premises was specifically meant for residential purpose, but the tenant had used such residential premises for commercial use, it would not change the status and character of the said premises from residential to commercial one---Petitioner had not produced any tangible material in order to prove the factum of payment of pagri amount and secondly, if it was presumed that pagri amount was paid by the petitioner in respect of the rented premises, even then it would not debar the respondent to seek eviction of the petitioner on the ground of his personal bona fide need---No jurisdictional error or any perversity was found in the impugned orders---Constitutional jurisdiction being a discretionary jurisdiction was meant to foster justice and to remedy the wrong but could not be invoked in routine course as an additional remedy to hamper the findings of fact correctly recorded by the two forums below---No illegality or infirmity having been noticed in the impugned orders passed by the two Courts below, constitutional petition was dismissed accordingly.

Jumma Sher v. Sabz Ali 1997 SCMR 1062; Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Messrs M. Kassam and Brothers v. Sharbat Khan 1992 MLD 1225; Mst. Akhtari Begum v. Muhammad Qasim 2000 SCMR 1937; Muhammad Shafi v. Muhammad Adam Khan 1983 CLC 2657; Syed Amjad Ali Shah v. Iqbal Ahmed Farooqi and others PLD 1985 SC 242; Mohammad Sharif v. Iftikhar Hussain Khan 1996 MLD 1505; Saadat Ali Baig v. S. Bux Ellahi 1991 CLC 623; Mst. Nargis Bano v. Rahman Bhai 1993 CLC 266; Raees Ahmed Pasha v. Kakaluddin and others 2004 MLD 587; Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi 2 others PLD 2005 Kar. 554 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 ref.

Manzoor Hameed Arain and Zahid Hussain for Petitioner.

Zafar Iqbal Dutt for Respondent No.1.

2019 Y L R 1317

[Sindh]

Before Aftab Ahmed Gorar, J

YOUSUF ALI---Petitioner

Versus

MUHAMMAD FAYYAZ and 2 others---Respondents

C.P. No.S-1574 of 2017, decided on 30th October, 2018.

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

----Ss. 10(3) & 15---Ejectment petition---Willful default---Deposit of rent in the office of Rent Controller---Claim of ownership by tenant through unregistered sale deed on expiry of rent agreement---Validity---Default had been proved by the conduct of tenant when he chose to deposit rent in the office of Rent Controller instead of first tendering it to the landlord---No documentary proof with regard to sale transaction between landlord and tenant was available---Tenant was directed by the High Court to vacate the rented premises---Constitutional petition was dismissed accordingly.

Messrs John Traders and 3 others v. Ahmed Ali 1986 CLC 561; Mst.Yasmeen Khan v. Abdul Qadir 2006 SCMR 1501 and Muhammad Sharif v. Vth Additional District and Session Judge (Central) Karachi 2011 SCMR 369 ref.

Muhammad Asif Khan v. Sheikh Israr 2006 SCMR 1872 rel.

Muhammad Tariq for Petitioner.

Ms. Tayyaba Sadia for Respondent No.1.

2019 Y L R 1357

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar, J

MUHAMMAD ZAMAN---Appellant

Versus

FEDERATION OF PAKISTAN through Chief Election Commissioner of Pakistan, Islamabad and 5 others---Respondents

Election Appeal No.S-10 of 2015, decided on 16th February, 2018.

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

----S. 14(5)---Sindh Local Government Act (XLII of 2013), Ss. 47 & 54---Sindh Local Councils Elections Rules, 2015, Rr. 61, 62 & 64---Election petition filed by appellant was dismissed by Election Tribunal on grounds that notice was not served personally or by courier or by registered post upon respondents who were joined by him in his election petition---Validity---Appeal was filed against final order of Election Tribunal constituted under S. 47 of Sindh Local Government Act, 2013 for trial of election petitions and election petition filed by appellant was dismissed being barred by Rr. 61(b) & 62(3) or Sindh Local Councils Election Rules, 2015---Appellant was supposed to have filed appeal under S.54 of Sindh Local Government Act, 2013---High Court declined to interfere in order passed by Election Tribunal as dismissal of appellant's election petition for non-compliance of mandatory provisions of Rr. 61(b) & 62(3) of Sindh Local Councils Elections Rules, 2015 was fully justified---Appeal was dismissed in circumstances.

Shaukat Ali v. Ghulam Qadir and others 1986 CLC 838; Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2013 SCMR 1585; Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Inayatullah v. Syed Khursheed Ahmed Shah and others 2014 SCMR 1477 and Sultan Mehmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312 rel.

Dr. Dilnawaz Rafi Shaikh and 3 others v. Riyaz ur Rahim and 3 others 2015 MLD 965 ref.

(b) Administration of justice---

----Wrong provision of law mentioned in the title of proceedings---Such mistake can be ignored and condoned provided the proceedings have been instituted within time and the Court otherwise has jurisdiction to decide the same.

Ali Asghar K. Panhyar for Appellant.

Aushaq Ali Sangi, Assistant Attorney General for Respondent No.1.

Respondents Nos.2 to 5.

Sadhamchand for Respondent No.6.

2019 Y L R 1392

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

FAROOQUE---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.17 of 2013, decided on 27th August, 2018.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, act so rash and negligent as to endanger human life or the personal safety of others, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence--- Scope--- Medical evidence neither pin-points the accused nor establish identity of accused but is supportive piece of evidence to the extent of specification of seat of injuries, the weapon used, duration and the cause of death---Mere un-natural death would never be sufficient for holding one guilty of the offence but could only establish happening of offence alone.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, act so rash and negligent as to endanger human life or the personal safety of others, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for committing murder of nephew of the complainant---Record showed that complainant and witnesses had stated that they were having land on lease for ten years, which was cancelled by owner and then it was leased out by him to the accused party---Complainant party prevented them from cultivating the said land---Complainant party was on the land under lease on the day of occurrence when accused persons armed with deadly weapons came there and at the instigation of owner of land, accused and the absconding accused fired at the nephew of complainant, which hit him and he by sustaining those fires fell down on the ground---Complainant party raised cries and all the accused ran away by making aerial firing---Injured was taken to hospital but he succumbed to the injuries---Said witnesses had been subjected to lengthy cross-examination but the veracity of their evidence could not be shattered on all material points with regard to death of deceased---Question of mistaken identity was not involved in the present case and the evidence of complainant and his witnesses could not be disbelieved only for the reason that they were related inter se, unless it was shown that said witnesses had a motive to falsely rope the accused by attributing a specific role to him---Witnesses of ocular account from the very beginning though named the number of persons in FIR and in their 161, Cr.P.C. statements, including acquitted accused, but specific role of committing death of the deceased by causing fire-shot injuries was attributed by them to the accused and absconding accused---Allegation against the accused had independent corroboration in shape of medical evidence, place of incident, manner of incident as well as weapon used by him---Nothing was available on record to suggest that the witnesses had any reason/motive to falsely name the accused for the act, resulting into death of the deceased---Circumstances established that Trial Court committed no illegality while following the principle of appraisal of evidence by sifting grain out of chaff--- Appeal was dismissed accordingly.

Piran Ditta v. The State 1993 SCMR 1934; Nisar Depar v. State 2017 PCr.LJ 1099; Zeeshan alias Shani v. State PLD 2017 SC 165; Muhammad Saleem v. The State 2007 SCMR 1896; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Muhammad Mansha v. The State 2016 SCMR 958; Muhammad Riaz and another v. The State 2017 SCMR 1871; Rehmat Khan and another v. The State and others 2017 SCMR 2034 and Nazar Hussain and another v. The State PLD 2010 SC 1021 ref.

Ali Bux v. State 2018 SCMR 354 rel.

(c) Criminal trial---

----Acquittal---Mere acquittal of one accused would never be sufficient to earn acquittal of another accused---Scope---Mere acquittal of one accused would not be sufficient to earn acquittal of another accused, unless it was established that case of convicted accused squarely was similar to that of acquitted accused and there was no independent corroboration/ supportive material for such conclusion.

Iftikhar Hussain v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others The State 2000 SCMR 1758 and Muhammad Raheel alias Shafique v. State PLD 2015 SC 145 rel.

Asif Ali Abdul Razzak Soomro for Appellant.

Habibullah Ghouri for the Complainant.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 Y L R 1406

[Sindh]

Before Khadim Hussain M. Shaikh and Amjad Ali Sahito, JJ

The STATE through Advocate-General---Appellant

Versus

MUHAMMAD AJMAL alias AKRAM LAHORI and 2 others---Respondents

Special Anti-Terrorism Acquittal Appeal No.3 of 2007, decided on 17th April, 2018.

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

----S. 417---Appeal against acquittal---Interference---Scope and criteria---Criteria to interfere in judgment against acquittal was not same as against the cases involving conviction---Scope of interference in appeal against acquittal was narrow and limited for the reason that in an acquittal, the presumption of innocence was significantly added to the rule of criminal jurisprudence that an accused would be presumed to be innocent until proved guilty---Court could interfere in judgment of acquittal if the same was shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of evidence---Heavy burden lay on the prosecution to rebut the presumption of innocence, which accused had earned and attained on account of acquittal.

Muhammad Zafar and another v. Rustam and others 2017 SCMR 1639 ref.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appeal against acquittal---Reappraisal of evidence---Prosecution, primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence for conviction of accused---If from the evidence on record it could be concluded that the charges so impugned against accused, had not been proved beyond reasonable doubt then accused would become entitled to acquittal---Star witnesses, in the present case, were four including the complainant, who was also injured witness, but prosecution had failed to produce complainant in support of its case---Remaining witnesses were chance witnesses as they were not residents of same locality---None of said eye-witnessed, had supported each other on any material aspect of the case---Testimony of said witnesses was not only carrying contradictions, but was fully pregnant with improvements, which had shattered the veracity of their evidence---Evidence of said witnesses, was rightly disbelieved by the Trial Court while recording impugned judgment, as their evidence was not confidence inspiring and trustworthy---Testimony of chance witness ordinarily was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---Testimony of chance witness, in rare cases, could be relied upon provided that some convincing explanation appealing to a prudent mind of his presence on the crime spot---Testimony of chance witness would fall within the category of suspected evidence--- Identification parade of accused was conducted through two prosecution witnesses, but both of them did not disclose the role of any accused in the identification parade before the concerned Magistrate---When no role had been assigned by the witness then said identification parade had lost its evidentiary value in the eye of law---Impugned judgment was based on sound reasons, having been assigned by the Trial Court while recording the acquittal of accused; same did not call for any interfere by the High Court---Appeal against acquittal, merited no consideration, was dismissed, in circumstances.

Muhammad Ali v. The State 2017 SCMR 1468; Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and Sardar Bibi and others v. Muneer Ahmed and others 2017 SCMR 344 ref.

2019 Y L R 1426

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Mohammed Karim Khan Agha, J

SHARJEEL INAM MEMON and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Karachi

and others---Respondents

C. Ps. Nos. D-132 of 2018, D-7667, D-7328, D-8001 and D-8855 of 2017, decided on 2nd March, 2018.

(a) Bail---

----Mens Rea--- Proof--- Final determination of mens rea in respect of accused has to be decided by Trial Court after hearing all evidence in the case.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition--- Bail, refusal of--- New grounds---Pre-arrest bail was dismissed---Petitioners sought bail after arrest on same grounds which were raised at time of seeking pre-arrest bail---Effect---Petitioners were given specific role in reference---No material was brought on record to persuade that original findings of High Court in respect of each petitioner could connect him with commission of offence for which all accused were charged required interference as earlier specific role of petitioners and material connecting them to commission of offence for which they were charged was fully discussed---Prima facie sufficient material existed on record to connect accused persons to offence for which they had been charged---Bail was denied under circumstances.

Maqbool Ahmed Lehri and another v. National Accountability Bureau and another 2016 SCMR 154; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Boota v. The State 2013 PCr.LJ 318; Iftikhar-ul-Hassan v. The State 2013 PCr.LJ 1486; Manzoor and 4 others v. The State PLD 1972 SC 81; Amir v. The State PLD 1972 SC 277; Muhammad Afzal v. The State 2005 PCr.LJ 1814; Peer Mukaram ul Haq v. National Accountability Bureau through Chairman and others 2006 SCMR 1225; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Feroze Khan v. The State 2012 MLD 1152; Bohair Qazi and others v. The State 2012 PCr.LJ 1228; Zakhim Khan Masood v. The State 1998 SCMR 1065; Maqsood v. Ali Muhammad and another 1971 SCMR 657; Malik Muhammad Yousufullah Khan v. The State and another PLD 1995 SC 58; Muhammad Riaz v. The State 2006 PCr.LJ 1459; Altaf Hussain v. The State and another 2011 YLR 2228; Muhammad Ali Athar v. Director General NAB Punjab, Thokar Niaz Baig Lahore and 2 others 2013 PCr.LJ 58; Dr. Asim Hussain v. National Accountability Bureau C.P. 2167/17 dated 29-08-2017; Waris Meah and another v. The State and another PLD 1957 SC 157; Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218; Muhammad Nadeem Anwar v. National Accountability Bureau PLD 2008 SC 645; Muhammed Aslam Bajwa v. The State PLD 2004 SC 780; The State v. Haji Kabeer Khan PLD 2005 SC 364; Rai Mohammed Khan v. National Accountability Bureau 2017 SCMR 1152; The State v. Zubair PLD 1986 SC 173; Haji Rahimullah v. State 1970 SCMR 514 and Imtiaz Ahmed v. State 2017 SCMR 1194 ref.

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

----S. 497(1), First Proviso---Bail---Medical grounds---Principles---Bail on medical grounds can be granted under first proviso to S.497(1), Cr.P.C. at discretion of court based on particular facts and circumstances of each case:

Following are the principles when bail can be granted on medical grounds:

(a) Sickness or ailment with which accused is suffering is such that it cannot be properly treated within premises of jail and;

(b) some specialized treatment is needed;

(c) continued detention of accused in jail is likely to affect his capacity or is hazardous to his life.

Kifayatullah v. Federation of Pakistan 2017 PCr.LJ 192; Mohammed Yousafullah Khan v. State PLD 1995 SC 58; Muhammed Saeed Mehdi v. State 2002 SCMR 282 and Peer Mukaram ul Haq v. National Accountability Bureau 2006 SCMR 1225 rel.

Sardar M. Latif Khoso, Shahab Sarki and Zulfiqar Ali Langah for Petitioner No.1 (in C.P. No. D-132 of 2018.)

Aamir Raza Naqvi and Afaz Ahmed for Petitioner No.2 (in C.P. No. D-7667 of 2017.)

Amanullah Sheikh and Manzoor Hussain for Petitioner No.3 (in C.P. No. D-7328 of 2017.)

Barrister Khawaja Naveed Ahmed and Irfan Bashir Bhutta for Petitioners Nos. 4 and 5 (in C.P. No. D-8001 of 2017.)

Amanullah Sheikh and Manzoor Hussain Khoso for Petitioner No.6 (in C.P. No. D-8855 of 2017.)

Mohammed Altaf, Special Prosecutor, NAB for Respondents.

2019 Y L R 1468

[Sindh]

Before Aftab Ahmed Gorar, J

STATE through Director---Applicant

Versus

SHAKIL UR REHMAN---Respondent

Special Criminal Misc. Application No.75 of 2017, decided on 6th November, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 497(5)---Bail, grant and cancellation of---Principles---Bail could only be cancelled if bail granting order appeared to be perverse and gross illegality had been committed---Principles governing the grant of bail and the cancellation substantially stood on different footings---Court was always slow to cancel bail already granted, as the liberty of a person could not be curtailed on flimsy grounds---No interference with an order of bail was required to be made unless the order lacked in reasons or was perfunctory in nature---Once bail had been granted by competent court of law, strong and exceptional grounds were required for cancelling the same---Court was to see that as to whether order granting bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---If trial was in progress and a number of prosecution witnesses had been examined and few were left to be examined, it would not be appropriate to send the accused behind the bars as it would not serve any useful purpose, especially so when there was no allegation of misuse of concession of bail granted to accused.

2016 PCr.LJ 533; 2011 SCMR 710; 2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064 and 2004 SCMR 231 ref.

Ashiq Ali Anwar Rana, Spl. Prosecutor, FBR for Applicant.

Muhammad Jamil for Respondent.

2019 Y L R 1476

[Sindh]

Before Fahim Ahmed Siddiqui, J

SHERAZ and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-1252 and S-1253 of 2018, decided on 9th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Tender age of the accused---Effect--- Recovery was not effected from the accused---Complainant alleged that two main accused (pretending themselves to be Police officials) enquired about the woman (wife of the complainant) and then six other accused persons, including petitioners (three in number) appeared and looted the complainant party---Petitioners (students/teenagers) contended that they were persuaded by the main accused to go to sea for enjoying the oceanic view and merrymaking---Record revealed that recovery was not effected from the petitioners and belongings of the complainant were recovered from the main culprits---Wife of the complainant in her statement disclosed that only two persons came at the scene of the offence, who talked to her husband while she was sitting in the park at that time---From the statement of the wife of the complainant, it appeared that only two persons had taken part in the offence so contention raised by the petitioners could not be disregarded in peculiar circumstance of the present case---Nothing was recovered from the petitioners and the wife of the complainant had involved only two persons in the alleged incident, therefore, the case of the petitioners called for further inquiry---Petitioners were admitted to bail, in circumstances.

Sathi M. Ishaq for Applicants.

Sagheer Abbasi, A.P.G. for the State.

2019 Y L R 1482

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

ABDUL HAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-74 of 2006, decided on 15th October, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of more than one hour in lodging FIR---Effect---Accused was charged for the murder of brother of complainant---Record showed that occurrence took place at 11.30 a.m. while the complaint was lodged at 12.45 p.m. on the same day---Facts remained that distance between the place of occurrence and police station was three kilometres---No possibility of cooking up false story within one hour and fifteen mintues.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for the murder of the complainant---Ocular account of the occurrence was furnished by the witnesses including complainant---Said witnesses had stated that on the day of occurrence at 11.30 a.m. near the house of witness, accused fired from his gun upon deceased which hit him and he fell down---Witnesses were cross-examined at some length but nothing could be brought on record in favour of accused---Witness had supported to the extent that he went out on hearing the cries and had seen complainant party and injured and accused armed with gun and co-accused empty handed---Witness was informed by the complainant that accused fired upon deceased---Incident took place at the day time and the parties were known to each other, therefore there was no question of mistaken identity of the accused---Ocular account was corroborated by the evidence of Medical Officers who examined victim in injured condition and who conducted post mortem of the deceased---Record transpired that the injuries were anti mortem in nature and were caused by fire arm weapon---Duration given by the Medical Officer corroborated the ocular account---Accused was arrested on 5.4.1991 and on the very day he produced crime weapon and on 6.4.1991 he recorded his judicial confession before the Judicial Magistrate---Judicial confession made by the accused appeared to be voluntary and was recorded by Judicial Magistrate after completing all necessary formalities and no major illegality or lacuna had been pointed out by the defence---Admittedly, evidence of Judicial Magistrate could not be recorded due to his death but there was no impact of his non-appearance in witness box for the reason that witness/clerk of Judicial Magistrate who was well conversant with the signature of the said Judicial Magistrate was examined, who deposed that Judicial Magistrate recorded statements of witnesses under S.164 Cr.P.C. and confessional statement of the accused, which bore his signature---Said witness had produced the statements of witnesses and confessional statement of accused in evidence and deposed that the statements and confessional statement were the same---Presence of witnesses at the place of incident was natural---Circumstances established that prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal being devoid of merits was dismissed in circumstances.

Latif v. The State 2008 SCMR 1106 rel.

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

----S. 164---Confessional statement---Lapses by Magistrate---Effect---Any lapse by Magistrate in recording the confession could not always be treated as fatal to the evidentiary value of confession when the court was satisfied that lapse on the part of the Magistrate had not in any way adversely affected the voluntariness or truthfulness of the confession.

Naseem Akhtar v. The State 1999 SCMR 1744 and Muhammad Yakoob v. The State 1992 SCMR 1983 rel.

(d) Criminal trial---

----Witness--- Interested witness---Testimony of interested witness---Reliance---Scope---Mere relationship of the witnesses with the deceased was not sufficient to discard their evidence until and unless enmity or motive for false implication of the accused was proved.

Rehmatullah Mangnejo for Appellant.

Abdul Rehman Kolachi, D.P.G. for the State.

2019 Y L R 1490

[Sindh]

Before Abdul Maalik Gaddi, J

QAISER ABBAS KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.422 of 2018, decided on 7th June, 2018.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 498----Passports Act (XX of 1974), S. 6(1)(g)(h)---Penal Code (XLV of 1860), Ss. 201 & 109---Offences relating to passport causing disappearance of evidence, abetment---Bail, refusal of---Accused, allegedly had de-sealed his office sealed by Federal Investigation Agency---Accused contended that he was entitled for the concession of bail as the offences with which he was charged did not fall under prohibitory clause of section 497, Cr.P.C---Office of accused was, admittedly, sealed by the Federal Investigation Agency, however, the petitioner was arrested for illegally de-sealing the said office at his own accord---Twelve passports along with cheque books, salary books, receipt books, payment vouchers and ATM cards, were recovered from his possession under mashirnama of arrest and recovery for which no plausible explanation or justification had been furnished by the accused--- Accused had allegedly committed cheating and defrauded innocent people-at-large on the pretext of providing them with visas for performing Hajj--- High Court observed that such offence affecting the society was to be curbed with iron hands--- Petitioner had committed forgery/cheating and taken the law in his own hands---Offence of accused indeed affected the public-at-large and fit to be treated as an exception to the provision of "prohibitory clause" of S.497, Cr.P.C.---Accused had failed to make out his case for grant of bail---Bail was refused to accused, in circumstances.

Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Muhammad Siddiq Awan v. The State 2003 PCr.LJ 890 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 ref.

Fawwad Ali Khichi for Applicant.

Muhammad Aslam Bhutta, Assistant Attorney General along with I.O./S.I. Muhammad Imran of FIA, AHTC Circle, Karachi for Respondent.

2019 Y L R 1507

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

MUHAMMAD YAQOOB---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department, Karachi and 7 others---Respondents

Constitutional Petition No. S-2070 of 2017, decided on 2nd March, 2018.

Constitution of Pakistan---

----Art. 199--Constitutional petition---Custody of minor---Jurisdiction of High Court to allow temporary custody of minor alleged to be in forced custody---Scope---Welfare of minor (daughter)---Scope---Minor daughter remained with father for over a year, however, Sessions Court granted custody to mother on her application---Petitioner/father contended that Sessions Court was not empowered to determine issue of temporary custody of the minor, pending final determination by the Guardian Court---Respondent/mother contended that she was forcibly thrown out from her marital home by the petitioner and the minor was forcibly detained by him----Record revealed that father had already filed appelication for guardianship before the concerned Guardian Court---Court of competent jurisdiction seized of the matter was to render determination upon the said issue---Sessions Court had expressed that the rights of the petitioner with regard to the custody of the minor, would be determined by the Guardian Court---Sessions Court had attached certain conditions with impugned order, including the requirement of deposit of bond and the direction that person of minor could not be removed from the district, which showed that impugned order had been passed keeping in view the paramount interest of the minor---No illegality or infirmity had been noticed in the impugned order passed by the Court below---Constitutional petition was dismissed accordingly.

Badal Gahoti for Petitioner.

Aslam Baig Leghari for Respondents Nos.6 to 8.

Allah Bahayo Soomro, Additional A.G. for Respondents.

2019 Y L R 1558

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD YOUSUF through Legal Heirs and 6 others---Appellants

Versus

ABDUL JABBAR QURESHI through Legal heirs and 18 others---Respondents

IInd Appeals Nos. 7 and 8 of 2007 and C.M.As. Nos. 279, 280 of 2007 and 3208 of 2012, decided on 8th May, 2018.

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

----O.XLI, R. 31---Judgment in appeal---Points for determination, non-framing of---Effect---Appellate Court had failed to frame points for determination which otherwise was departure from mandatory provisions of O. XLI, R. 31, C.P.C.---Trial Court framed sixteen issues and findings were also given on all the issues---Appellate Court had not given issue-wise findings while reversing findings of Trial Court---Appellate Court was competent to reverse findings of Trial Court but not without framing of proper points of determination decision thereon and reasoning thereof---Judgment of Appellate Court in absence of proper points of determination or reasons for decision would not satisfy the requirements of O. XLI, R. 31, C.P.C.---Neither the Trial Court nor the Appellate Court had discretion to pass any decision but what the law required---Appellate Court in order to reverse the findings of Trial Court was required to examine every aspect and record its reasons to justify reversal of the adjudication passed by the Court below---Impugned judgment passed by the Appellate Court was not maintainable, in circumstances---Judgment passed by the Appellate Court was set aside and case was remanded by the High Court to the said Court for fresh decision after providing opportunity of hearing to the parties in accordance with law---Second appeal was allowed, in circumstances.

(b) Maxim---

----"A communi observentia non est recedendum"---If a thing is required to be done in a particular manner, it has to be done in that manner, if not, would be unwarranted under the law.

Mansoor-ul-Arfin and Miss Neel Kanwal Tariq for Appellants.

Zahid Hussain for Respondents Nos.1 to 9.

2019 Y L R 1573

[Sindh]

Before Fahim Ahmed Siddiqui, J

KASHIF ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 118 and 136 of 2017, decided on 21st November, 2017.

Penal Code (XLV of 1860)---

----Ss. 392 & 397---Sindh Arms Act (V of 2013), S.23(1)(a)---Robbery armed with deadly weapon---Benefit of doubt---Acquittal of accused in recovery of arms case---Effect---Accused persons were convicted by Trial Court and sentenced to seven years imprisonment for committing robbery armed with deadly weapon---Validity---First Information Report was lodged under S.392, P.P.C. and charge sheet was submitted by investigating officer with a recommendation that accused persons be tried under S.392, P.P.C. but the Trial Court on account of recovery of weapon framed the charge under S.397 P.P.C. and a separate case under S.23(1)(a) of Sindh Arms Act, 2013, was registered against the accused and separately tried---Trial Court after full-fledged trial of second case, acquitted the accused---Acquittal of accused in the case of recovery of alleged crime weapon was a fatal blow to the prosecution case---Prosecution, in circumstances, could not succeed to establish case against accused persons and entire case was full of doubts---Benefit of doubt was extended to accused persons---High Court set aside judgment passed by Trial Court and acquitted both the accused persons---Appeal was allowed accordingly.

Habib-ur-Rehman Jiskani, for Appellant (in Crl. Appeal No. 118 of 2017).

Qaim Ali Memon for Appellant (in Crl. Appeal No. 136 of 2017).

Zahoor Shah, DPG for the State.

2019 Y L R 1585

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

BAHAR BEGUM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-85 of 2016, decided on 30th May, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information, accused was arrested at railway phattak and 2-kilograms heroin powder was recovered from her purse---Record showed that in-spite of spy information, no private person was associated as mashir of recovery---Evidence reflected that personal search of lady accused was conducted by Excise Constable, but the prosecution had failed to examine the said Official---Presumption would be that had she been examined, she might have not supported the case of prosecution---Non-examination of such material witness would be fatal to the case of prosecution---Excise Constable, had taken heroin parcel to the Chemical Examiner for analysis but he had not been examined before the court to prove the safe transit---Incharge of Malkhana of Excise Police Station had not been examined to establish the safe custody of the heroin powder at Excise Office Malkhana---Application was submitted on behalf of the accused to the police that heroin had been foisted upon her---Investigating Officer did not interrogate/ investigate regarding the said application from concerned officer/agency in order to ascertain the truth---Accused was aged about 55-years and had no criminal record or previous conviction in such type of offences---Investigating Officer had deposed that private persons were not available at the time of arrest and recovery but in the cross-examination stated that private persons were present around the place of recovery---Witness had admitted that place of arrest and recovery was thickly populated area and it was day time incident and it was the case of spy information---Mashir had admitted that personal search of lady accused was not conducted at the time of her arrest---Circumstances suggested that it was not believable that the private persons were not present except Excise Officials and it was not believable that lady accused was waiting on road for customer to sell the heroin powder while carrying heroin in her purse---Excise Officials could not search the said customer---No doubt, report of the Chemical Examiner was positive, but reflected that said report had not been prepared by the Chemical Examiner according to the protocol as provided in the rules, as such, positive report of the Chemical Examiner was deficient---Such positive report would not improve the case of prosecution---Circumstances established that prosecution had failed to establish its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of accused then accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Asif Ali Talpur for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for Respondent.

2019 Y L R 1606

[Sindh]

Before Hassan Azhar Rizvi and Mohammed Karim Khan Agha, JJ

MUHAMMAD IRFAN and others---Appellants

Versus

The STATE through NAB, Karachi---Respondent

Cr. Acctt. Appeal No.6 of 2018 (M.A. No.2561 of 2018), Cr. Acctt. Appeal No.7 of 2018 (M.A. No.3361 of 2018), Cr. Acctt. Appeal No.8 of 2018 (M.A. No.3362 of 2018), Cr. Acctt. Appeal No.9 of 2018 (M.A. No.2744 of 2018), Cr. Acctt. Appeal No.10 of 2018 (M.A. No.3687 of 2018), Cr. Acctt. Appeal No.11 of 2018 (M.A. No.3187 of 2018), decided on 19th June, 2018.

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

----S. 426---Suspension of sentence---Delay, absence of---Principle---Provision of S.426, Cr.P.C. is a discretionary ground and only a tentative assessment of evidence may be made---Court cannot go into merits of case as this may prejudice outcome of appeal which has to be decided after appellate hearing.

Raja Shamashad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 and Manzoor Ahmed v. Fazal Ahmed 2013 SCMR 1403 rel.

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

----S. 426---Suspension of sentence---Preconditions---Sentence cannot be suspended under S. 426, Cr.P.C. unless it is shown that conviction is based on no evidence and that there is no ultimate possibility of conviction being sustained.

Makhdoom Javed Hashmi v. The State 2007 SCMR 246 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss. 426 & 561-A---Constitution of Pakistan, Art. 199---Suspension of sentence---Jurisdiction---Provision of S.426, Cr.P.C. is applicable to NAB cases notwithstanding S.9(b) National Accountability Ordinance, 1999---Provisions of S.426. Cr.P.C. can be applied in Constitutional discretionary jurisdiction of High Court under Art.199 of the Constitution read with Ss. 426, Cr.P.C. and 561-A Cr.P.C.

Inayatullah Ansari and 2 others v. The State PLD 2014 Sindh 95 rel.

(d) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 (a) (iii) (iv) (v) (xii) & 9(b)---Criminal Procedure Code (V of 1898), S. 426---Suspension of sentence---Final disposal---Bail, grant of---Case of hardship---Accused persons were convicted for financial embezzlement and were sentenced to imprisonment ranging from 7 years to 10 years---Accused sought suspension of their sentences as well as grant of bail on grounds that no case was made against them and they were facing hardship---Validity---All accused persons had been awarded sentences ranging from 7 to 10 years which could not be considered short sentences in context of a conviction under National Accountability Ordinance, 1999 where maximum sentence was 14 years---Accused persons had only spent approximately 3 months in jail and it could not be said that they had served out a major portion of their sentence, however, due to backlog in hearing appeals, their appeals were nowhere in sight of being heard---High Court, in circumstances, suspended sentence of accused persons as they had been put through agony of prolonged trial, none of them absconded during course of trial and there appeared to be some irregularities during trial---Accused persons were genuinely willing to proceed with their appeals as soon as possible---Application was allowed in circumstances.

Khan Muhammad Mahar v. The State 2003 SCMR 22 distinguished.

Abdul Lateef Brohi v. National Accountability Bureau (NAB) through Director General 2014 PCr.LJ 1334; Mirza Ashfaq Ahmed and others v. The State and another 2013 YLR 328; Khan Muhammad Mahar v. The State 2003 SCMR 22; Muhammad Saddique v. The State 2018 SCMR 71; Nadeem Ramzan v. The State 2018 SCMR 149; Messrs Shadab Developers through Partner v. Mehboob Hussain alias Mehboob-ur-Rehman through Attorney 2017 YLR Note 23 and Abdul Hameed v. Muhammed Abdullah 1999 SCMR 2589 ref.

Aamir Raza Naqvi and Afaq Ahmed for Appellants (in Cr. Acctt. Appeal No.6 of 2018 and M.A. No.2561 of 2018).

S.M. Iqbal for Appellants (in Cr. Acctt. Appeals Nos.7, 8 of 2018 and M.As. Nos.3361 and 3362 of 2018).

Shakeel Ahmed and Mukesh Kumar for Appellants (in Cr. Acctt. Appeal No.9 of 2018 and M.A. No.2744 of 2018).

Shahab Sarki for Appellants (in Cr. Acctt. Appeal No.10 of 2018 and M.A. No.3687 of 2018).

Haq Nawaz Talpur and Taimour Ali Mirza for Appellants (in Cr. Acctt. Appeal No.11 of 2018 (M.A. No.3187 of 2018)

Munsif Jan, Special Prosecutor, NAB for Respondents.

2019 Y L R 1620

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

HAZARO alias HAZAR KHAN SHAR---Petitioner

Versus

The STATE---Respondent

M.A. No. 5257 of 2018 in Criminal Jail Appeal No.103 of 2018, decided on 1st February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence pending appeal---Fresh appeal---Old age of accused---Effect---Plea of appellant was that he was an aged person of 82 years of age and besides, the role assigned to him was only of instigation---Validity---Appeal filed by appellant was a fresh one and he was not entitled to be benefitted by the provisions of S. 462(1A)(c), Cr.P.C., which required that if appeal was not decided within a period of two years of conviction, accused could be released on bail---Old age of accused was no ground for suspending sentence---Petition was dismissed, accordingly.

1994 SCMR 1712; PLD 2007 SC 564; 2007 SCMR 992; 1997 SCMR 1521 and 2007 SCMR 246 ref.

Habibullah G. Ghouri for Appellant.

Athar Abbas Solangi for the Complainant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2019 Y L R 1654

[Sindh]

Before Zulfiqar Ahmad Khan, J

Syed MAROOF SHAH alias MEHTAB alias BABA TT and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.626 of 2017, decided on 8th August, 2018.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for committing murder of husband of the complainant by firearm due to non-payment of "Bhatta"---Prosecution had produced fifteen witnesses in support of its case; however, some of the private witnesses did not depose against the culprits due to fear and terror of accused persons which reflected from the impugned judgement---Evidence of complainant and her witness revealed that accused persons were already known to them and they had been issuing threats to the deceased and his family members of dire consequences and demanding money from the deceased who was paying money but accused persons were demanding more and more---Accused had issued life threats in case of non-payment---Since the day of commission of murder of deceased, accused persons had been visiting the house of complainant continuously and issuing life threats to the entire family---Complainant's brother/witness was called at the office of the political party to whom accused persons belonged where he was threatened to keep silent and not to nominate the accused persons otherwise accused would commit another murder---During the course of recording the evidence of complainant before trial court, she was continuously crying and weeping by saying that accused persons present in court had committed murder of her husband and she also disclosed role of each accused persons---Police Officials who had arrested and interrogated the accused persons as they were involved in many other cases, had fully supported the prosecution version as the accused persons had confessed their guilt before them and disclosed the details of the alleged offence and pointed out place of incident during the course of investigation---Indeed, complainant was a simple household lady and she had no ill-will or ulterior motives to depose against the accused persons or to implicate them falsely in a heinous crime of murder of her husband---Undoubtedly, complainant had deposed against the culprits in purely natural manner and narrated the vital facts without any addition or improvement---Statement of complainant had been corroborated by witness---Honest testimony of complainant could not be discarded merely on the ground that her statement was not validated by any eye-witness---Evidently, accused belonged to a political party and were notorious criminals involved in many criminal cases---Accused were not only extorting money from the deceased but also issuing continuous life threats to him and even to other family members after the murder of deceased---In such circumstances, it was quite impossible for any person to speak against the politically strong criminals or lodged FIR or nominated them before any court and entire city was made hostage by the terrorist activities---Objection raised by the defence for not implicating the accused in FIR had no worth for consideration in the peculiar and particular circumstances of the present case, it was natural demeanor and knee-jerk reaction of the complainant that in order to ensure safety of herself and her family members she quietly lodged FIR against unknown persons---Circumstances established that prosecution had succeeded to prove the charge and bringing home guilt of accused ---Appeal being devoid of any legal substance was dismissed.

(b) Criminal trial---

----Each case must be adjudged strictly in view of its own specific perspective and circumstances---Court was to emphasise on the aspect that whether the evidence adduced by the prosecution was convincing a prudent mind or was based on evil designed/object or tainted with any kind of animosity to settle a personal vendetta.

(c) Criminal trial---

----Evidence---Solitary statement of a witness---Scope---Statement of a single witness was sufficient to convict the offender if it was trustworthy, confidence inspiring and free from any ulterior motive.

Muhammad Ali and others v. The State 1999 SCMR 1957 and Muhammad Ismail v. The State 2017 SCMR 713 rel.

Appellants in person.

Ms. Seema Zaidi, D.P.G. for the State.

Complainant in person.

2019 Y L R 1671

[Sindh]

Before Muhammad Ali Mazhar, J

KPT OFFICERS COOPERATIVE HOUSING SOCIETY LIMITED, KARACHI---Plaintiff

Versus

GOVERNMENT OF SINDH through Chief Secretary and 23 others---Defendants and Proforma Defendants

Suit No.735 of 2001, decided on 8th February, 2019.

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

----S. 54---Karachi Port Trust Act (VI of 1886), Ss.18 & 27---Suit for injunction---Plaintiff was Cooperative Housing Society and was aggrieved of letter causing interference and obstruction by authorities with regard to land in possession of Society and its members---Validity---Provincial Government, Board of Revenue and other defendants failed to produce any documentary evidence and also failed to deny documents produced by plaintiff including indentures of leases---Neither defendants had challenged lease nor sought any cancellation---Defendants did not set into motion any independent proceedings for their alleged claim nor claimed any set of in present proceedings---Defendants did not take up matter with Federal Government nor denied transaction through which Karachi Development Authority acquired land from Karachi Port Trust for Karachi Development Authority Scheme---Defendants did not deny indenture signed between Karachi Port Trust and United States of America for leasehold rights of plots measuring 82,836 square meters---Authorities did not deny letter of the then Chief Minister of the province conveyed to the then Prime Minister in which Chief Minister suggested that area of 75 acres of Chinna Creek might be acquired and land fell within jurisdiction of Karachi Port Trust which was to be got transferred for purposes of better utilization and development of city to Provincial Government---Letter in question issued by the authorities was without lawful authority and had no legal effect---No illegality was noticed in lease documents executed by Karachi Port Trust in favour of plaintiff for land in question after proper approval of Board and Federal Government---Suit was decreed in circumstances.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380; Nizar Ali v. Noorabad Cooperative Housing Society Ltd. and others PLD 1987 Kar. 676; Haji Muhammad Hussain and others v. Muhammad Abbas 2001 YLR 1767; Faqirullah and others v. Khadim Hussain 2003 CLC 122; Sultan Mahmood Shah and others v. Muhammad Din and others 2005 SCMR 1872; Aurangzeb and others v. Muhammad Jaffar and another 2007 SCMR 236; Syed Munawar Hussain Shah v. Syed Nusrat Hussain and others 2014 CLC 945; Suit No.778 of 1998; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156; Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607; Majidullah and others v. National Industrial Relations Commission, Karachi PLD 1976 Kar. 207; Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511; Muhammad Nawaz Khan v. Muhammad Khan and others 2002 SCMR 2003; Purnendu Nath Tagore v. Hanut Mull Dogar and others AIR 1940 Calcutta 565; Gholam Sidhique Khan and others v. Jogendra Nath Mitra and another 96 Ind Cas 199; Baidya Nath Dutt v. Alef Jan Bibi and others AIR 1923 Calcutta 240; Abdur Rahman Mobashir and others v. Syed Amir Ali Shah Bokhari and others PLD 1978 Lah. 113; Sanat Kumar v. Hem Chandra AIR 1961 Cal. 411; Naseem-ul-Haq v. Raes Aftab Ali Lashari 2015 YLR 550; Ilyas Ahmed v. Muhammad Munir PLD 2012 Sindh 92; Mst. Sahar Begum v. Salahuddin 1991 MLD 1594; Modern Terminal Operators v. The City District Government Karachi and others Suit No. 924 of 2002; Province of Sindh v. Administrator, DHA and another Suit No.778 of 1998 and Rmnzomar Koondoo v. McQueen I.A. Sup. 40 ref.

(b) Public functionary---

----Executive functionary do not have nor can exercise power unless expressly con-ferred by statute---Principles.

Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 and Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607 ref.

Mushtaq A. Memon for Plaintiff assisted by Ishtiaq A. Memon, Asif Memon, Shahid Ali Ansari and Qazi Shunail and Munawar Hussain holding brief for Dr. Farogh Naseem for Plaintiff.

Faisal Siddiqui and Saad Fayyaz for Defendants Nos.8 to 10 and 12 to 20.

Ravi R. Pinjani and Ms. Alina Qadri for Defendant No.24.

Abdullah Munshi for Defendant No.5, assisted by Shajee and Imdad Bhatti.

None present for Defendant No.7.

M. Afzal Awan for Defendants Nos.9 to 11.

Ameer Ali, Advocate holding brief for Abdur Rahman for Winsom Estates (Pvt.) Ltd.

G.N. Qureshi for the Board of Revenue, Government of Sindh.

Ziauddin Junejo, Assistant Advocate General.

2019 Y L R 1690

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD AAMIR MALIK--- Appellant

Versus

Mrs. AFSHAN ATEEQ and another---Respondents

F.R.A. No. 65 of 2016, decided on 20th April, 2018.

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

----Ss. 17(9) & 24---Eviction of tenant--- Terms of tenancy agreement that preference was to be given to tenant in case of selling rented premises by the landlord--- Scope--- Additional Rent Controller passed tentative rent order whereby tenant was to deposit future monthly rent but he did not comply with the said order---Appellant/tenant contended that as per terms of the tenancy agreement the landlady/ respondent was bound to first get his consent before selling the rented premises---Validity---Contention of the appellant was entirely misconceived for two reasons; firstly, in such proceedings, the question of sale could not be adjudicated and , secondly, the moment the tenant had admitted to have been put into possession of the premises under a written tenancy he would not have any liberty to subsequently deny relationship of 'landlord' and 'tenant' and consequences arising out of such tenancy unless any subsequent agreement was enforced through course of law---Even otherwise, any such clause as asserted by the appellant, would never prejudice the rights of the owner---Tenant had taken such plea but had not pleaded that respondent had sold or was selling the premises to any body, therefore, such plea was of no legal weight---Appellant was put into possession of the premises under tenancy agreement which also included the clause of mandatory requirement of renewal of tenancy with 10% increase in rent, therefore, even after expiry of rent period the parties would be governed by such agreement ---Record revealed that there had not been any further tenancy agreement, hence even after expiry of agreed period of 11 months, the parties would stand governed by specifically detailed terms (intentions), therefore, Additional Rent Controller had committed no illegality while passing the tentative order--- Said tentative order was confined with reference to future monthly rent with '10% increase" which term even was not disputed by the appellant---Additional Rent Controller had also categorically made it clear that rent deposit (under the tentative order) was subject to final determination, hence no harm was likely to fall upon the appellant in making compliance of such tentative order which otherwise was mandatory in its nature and non-compliance thereof was directly punishable and defence of tenant could be struck off and eviction could follow---Appellant, in the present case, prima facie had failed in making compliance of such order, hence, the subsequent action of Additional Rent Controller was well within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1963---Appeal was dismissed accordingly.

Mst. Zarina Khan v. Mst. Farzana Shoib 2017 SCMR 330 and M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 ref.

Muhammad Saad Siddiqui for Appellant.

Abdul Aziz Abro for Respondent No.1.

2019 Y L R 1700

[Sindh]

Before Adnan Iqbal Chaudhry, J

Mrs. NAVEEN IRFAN PURI through Attorney---Plaintiff

Versus

Mst. SHAMA PARVEEN and 3 others---Defendants

Suit No. 1254 of 2015, decided on 3rd September, 2018.

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

----O. VII, Rr. 11 & 13---Plaint, rejection of---Effect---Factors to be considered---Court for the purpose of O. VII, R. 11, C.P.C., in addition to the plaint could examine other material on the record---Plaint could not be rejected in piecemeal--Court was not denuded of its inherent power of dismissing the suit if it was barred by law---Plaintiff, in case of rejection of plaint could present a fresh one with regard to same cause of action where the ground for its rejection could be addressed and remedied---Where ground for rejection of plaint was such that it could not be remedied, Court was to dismiss the suit instead of rejecting the plaint---Dismissal of a suit could be dismissal of a part of the suit where the suit joined separate causes of action---Where a relief based on one cause of action was barred by law then suit to the extent of that relief could be dismissed while allowing the suit to continue for other relief.

Haji Abdul Karim v. Florida Builders PLD 2012 SC 247; Siraj Din v. Khurshid Begum 2007 SCMR 1792; Ghulam Nabi v. Muhammad Yaqub PLD 1983 SC 344; Inam Naqshband v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189; Hawabai v. Sharif PLD 1961 (W.P.) Kar. 412; Mohammad Nazir v. The District Judge, Gujranwala 1988 CLC 2469; Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan 1992 CLC 1887 and Fazal-ur-Rehman v. Sughra Haq 2007 SCMR 564 ref.

Haji Baz Muhammad Khan v. Noor Ali 2018 SCMR 1586; Banque Indosuez v. Banking Tribunal for Sindh and Baluchistan 1994 CLC 2272; S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Bomanshaw Burjorji Gazdar v. Mumtaz Begum 1985 SCMR 554; Zafar Iqbal v. Sher Muhammad 2003 YLR 673; Bai Chanchal v. Syed Jalaluddin AIR 1971 SC 1081; Hakeem Shah v. Muhammad Idrees 2017 SCMR 316; Inayat Ullah v. Shah Muhammad PLD 1961 Lah. 371; Faiz Ahmed v. Muhammad Sharif 2005 MLD 298; Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9 and Niaz Ali v. Muhammad Sadiq PLD 1995 Lah. 617 rel.

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

----Art. 103---Exclusion of oral evidence by documentary evidence---Scope---Oral agreement could not be relied upon to contradict the written sale agreement.

Dr. Muhammad Farogh Naseem and Ms. Pooja Kalpana for Plaintiff.

Mehfooz Yar Khan for Defendant No.1.

Musthaq A. Memon and Asif A. Memon for Defendant No.2.

Nemo for Defendant No.3.

Aamir Ali for Defendant No.4.

2019 Y L R 1718

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

SHAHZAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 106 of 2018, decided on 19th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392, 395 & 34--- Robbery, dacoity, common intention---Bail, refusal of---Complainant lodged FIR against four unknown accused, however, two more accused, including the petitioner, were mentioned by the prosecution witnesses while recording statements under S.161, Cr.P.C---Petitioner contended that there was an old enmity between his elders and the complainant regarding some property---Record revealed that two more persons were also present outside the Dera (place of occurrence) including the petitioner during the course of robbery---After the arrest of the petitioner, identification test was also conducted by the Magistrate and complainant and other star witnesses of the alleged occurrence, identified the petitioner as the same accused---Petitioner had also been involved in other crimes of same nature---Petitioner had not brought on record any document or evidence, which could show the alleged enmity between the parties over the property--Prosecution had not examined any of his witnesses before the Trial Court---Sufficient material was available against the petitioner which prima facie connected him with the crime ---Bail could not be claimed as of right for an offence which did not fall within the prohibitory clause of S. 497, Cr.P.C.---Bail was refused to the petitioner, in circumstances.

2002 SCMR 442 ref.

Mohammad Saleh Kolachi for Applicant.

Deewan Bhuromal, D.D.P.P. for the State.

Iftikhar A. Gohar for the Complainant.

2019 Y L R 1721

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD ASHRAF---Appellant

Versus

ASLAM PARVAIZ and 3 others---Respondents

Civil Second Appeal No. 49 of 2013, decided on 31st January, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 73 & 79---Suit for specific performance of agreement to sell---Sale agreement---Proof---Procedure---Breach of contract---Effect---Burden to prove sale agreement and advance part payment in pursuance thereof was on the plaintiffs---Original agreement and attesting witnesses of the agreement were not produced by the plaintiffs---Plaintiffs were required to produce the original agreement to sell as primary evidence as well as attesting witnesses of the same---Plaintiffs did not pay any part of the alleged sale consideration to the defendant---Discretionary relief of specific performance could not be grated where a party seeking such relief had itself failed to perform its agreed part of contract or committed breach thereof---Plaintiffs had failed to discharge their burden to prove the sale agreement in circumstances---Defendant had not received any part of the alleged sale consideration and he was not obliged to fulfill any of his obligations thereunder---Impugned agreement to sell had become void for lack of consideration---Plaintiffs did not take any step to deposit the sale consideration in the Trial Court---Courts below had failed to appreciate the important questions of law involved in the present matter---Impugned judgments and decrees passed by the Court were set aside and suit was dismissed---Second appeal was allowed, in circumstances.

Gulzar Khan v. Mst. Shahzad Bibi and another PLD 1974 SC 204; Mian Iqbal Mahmood Banday v. Muhammad Sadiq PLD 1995 SC 351; Ameer v. Shahadat 2005 SCMR 1147; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Kar. 17; Khawaja Ammar Husain v. Muhammad Shabbiruddin Khan 1987 CLC 1149; Pakistan Industrial Credit and Investment Corporation Ltd. v. Habib Enterprises Ltd. and another 1989 CLC 2070; Muhammad Bashir v. Haji Muhammad Siddique and 5 others 1997 CLC 466; Muhammad Abbas v. Muhammad Ismail and 2 others 2017 CLC 1533; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza 1999 SCMR 2718; District Council, Sialkot v. Chaudhry Nazir Ahmed Khan and 2 others 2001 SCMR 1641; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR, 1821; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Ameer v. Shahadat 2005 SCMR 1147; Dr. Ijaz Ahmed v. Mst. Nasreen Akhtar and others 2005 SCMR 1295; Nazeer Ahmed v. Maqsood Ahmed 2008 SCMR 190; Nazir Ahmed and another v. M. Muzaffar Hussain 2008 SCMR 1639; Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others 2009 SCMR 254; Muhammad Ashiq Khan v. Muhammad Sharif and others 2016 SCMR 1248; Subhan Allah and 2 others v. Mst. Maryam and another 1988 CLC 890; Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251; Hussain Ali v. Shaikh Muhammad Shahid 2011 CLC 1239; Col. (Retd.) Mir Nawaz v. Muhammad Haroon and another 2017 CLC Note 95, p.107 and Naseem Akhtar v. Abdul Rehman Khan 2017 CLC Note 79, p.90 ref.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 and Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777 rel.

Hussain Shaikh for Appellant.

Abdul Khalique for Respondents Nos. 1 to 4.

2019 Y L R 1737

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

Mst. SEHAT KHATOON---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION, FAIZOO and 6 others---Respondents

Criminal Miscellaneous Application No. S-98 of 2018, decided on 15th November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 173---General Clauses Act (X of 1897), S. 24-A---Closing of case---Non-speaking order---Scope---Magistrate on the report of police passed order to the effect that "file"---Validity---Section 24-A, General Clauses Act, 1897 provided that any Authority, office or person making any order or issuing direction may give reason for making such order or direction---No reason was assigned by the Magistrate, by ordering the report of the police to be "filed"---Magistrate, while passing the order, had not complied with the direction contained in S. 24-A, General Clauses Act, 1897---Order passed by Magistrate was set aside with direction to pass the same afresh in detail after providing chance of hearing to all the concerned---Application was disposed of accordingly.

Khalid Ahmed Buriro for Applicant.

2019 Y L R 1763

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD AKBAR ALI---Petitioner

Versus

Mst. FATIMA BIBI and 2 others---Respondents

Const. Petition No. S-313 of 2010, decided on 1st January, 2018.

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

----S. 15---Ejectment of tenant---Sale agreement in favour of tenant---Effect---Contention of tenant was that she had sale agreement of demised premises in her favour---Eviction petition was accepted by the Rent Controller but same was dismissed by the Appellate Court---Validity---Rent Controller could not adjudicate the dispute with regard to title of demised premises---Only Civil Court had jurisdiction to determine the veracity and effect of sale agreement and not a Rent Controller---Appellate Court observed that Rent Controller should have directed the parties to get the question of title decided by the competent Civil Court rather passing order of ejectment---Said observation of Appellate Court was contrary to law as Rent Controller was not bound to pass such advice or direction to the parties---Tenant had filed a suit for specific performance of contract but same did not debar the landlord from proceedings before Rent Controller---Mere pendency of a civil suit did not change the status of a tenant---Tenant could not claim continuity of his possession over demised premises due to pendency of civil suit---Tenant would remain tenant even if he entered into a sale agreement with regard to demised premises---Tenant could not continue his possession over the demised premises on the basis of sale agreement---Tenant was to vacate the demised premises and comply with the ejectment order and continue to establish his right before the competent Civil Court---Impugned order passed by the Appellate Court was contrary to law and was not sustainable---Order passed by the Appellate Court was set aside and that of Rent Controller was restored---Constitutional petition was allowed, in circumstances.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Barkat Masih v. Manzoor Ahmed (deceased) through L.Rs. 2006 SCMR 1068; Muhammad Anwar v. Mst. Nafeesa Begum PLD 1981 Kar. 85 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

Muhammad Shoaib Abidi for Petitioner.

K.B. Bhutto along with Syed Sikandar for Respondent No.1.

2019 Y L R 1777

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUHAMMAD SARWAR---Appellant

Versus

The STATE and others---Respondents

Cr. Spl. A.T.A. Appeal No.D-108 and Cr. Acquittal Appeal No. D-120 of 2004, decided on 21st May, 2018.

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

----Ss. 365-A, 148 & 149---Kidnapping or abduction for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused armed with Kalashnikov and gun kidnapped two persons for ransom---Name of accused did not appear in the FIR---No evidence was available to show that accused had kidnapped abductees for ransom but only allegation against him was that he had received ransom amount but time and place of payment had not been established---Accused was not put to identification through witnesses after his arrest---No ransom amount was recovered from him during investigation--Both abductees did not implicate accused that he kidnapped them for ransom and received amount---Only piece of evidence collected against accused was that he was identified by prosecution witnesses before the Trial Court after five years of the incident---Identification of accused before the Trial Court was not safe for conviction---Evidence showed that 30-bore pistol was recovered from accused during investigation---Accused had faced trial under the Arms Ordinance before the Judicial Magistrate but had been acquitted in that case--- Admittedly, four co-accused were acquitted on the same set of evidence---Conviction of the accused on same set of evidence without independent corroboration was unwarranted in law---Evidence showed that there were material contradictions in the prosecution case with regard to the place of incident, place of payment of ransom and other particulars of the case---Allegedly, during the captivity of the abductees in jungle there was a police encounter but none received injury from either sides which clearly showed that prosecution story was unbelievable and unnatural---After release from accused, abductees did not go to the police station for fifteen days for recording their statements, which created serious dent in the prosecution case---In the present case, identification parade was held by Magistrate while ignoring the legal formalities---Record showed that before holding of identification parade, accused were shown to the abductees---Statements of abductees showed that they failed to individually identify either of them with reference to role allegedly played by them in the incident---Manner in which identification proceedings were conducted raised serious doubt on the credibility of the process---Circumstances established that prosecution had failed to bring on record the antecedents of the abductees who were kidnapped for ransom which was paid to the accused for their release---Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Faiz-ur-Rehman v. The State 2012 SCMR 538; Muhammad Tufail v. The State 2013 SCMR 768; Mursal Kazmi alias Qamar Shal v. The State 2009 SCMR 1410; Mah Gul v. The State 2009 SCMR 4; Asif Jameel v. The State 2003 MLD 676; Irshad Ali alias Ishoo v. The State PLD 2006 Kar. 178; Tariq Pervez v. The State 1995 SCMR 1345; Mir Hassan v. The State 2013 YLR 1905 and Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 ref.

Muhammad Afzal v. The State 2017 SCMR 1645; Gulfam v. The State 2017 SCMR 1189 and Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 rel.

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

----Art. 22---Joint identification parade---Multiple accused persons---Scope---Holding of joint identification parade of multiple accused persons in one go was disapproved.

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

----Art. 22---Identification parade---Object---Object of identification parade is to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, creating reasonable doubt in the prosecution case is sufficient for extending its benefit for recording acquittal.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Badal Gahoti for Appellant (in Cr. Spl. A.T.A. Appeal No.D-108 of 2004).

Syed Meeral Shah Bukhari, Additional Prosecutor General Sindh for Appellant (in Criminal Acquittal Appeal No.D-120 of 2004) and for Respondents (in Criminal Special A.T.A. No.108 of 2004).

Hameedullah Dahri and Ayatullah Khowaja for Respondents (in Criminal Acquittal Appeal No.D-120 of 2004).

2019 Y L R 1795

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

SABIR HUSSAIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-189, Criminal Jail Appeals Nos. D-198 and D-209 of 2016, decided on 30th January, 2019.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses--- Competence--- Principles---Prosecution case was that 144-kilograms of charas was recovered from the vehicle of accused persons---Record showed that accused were arrested while they were transporting huge quantity of charas in a vehicle---Prosecution examined complainant and mashir, who fully supported the prosecution case on material points and categorically deposed that during patrolling, they arrested the accused and recovered two bags in between front and rear seats of the car and four bags and scale from the dicky containing charas, each bag became 24-kilograms---Charas was sealed at the spot and memo was prepared in presence of mashirs---Witnesses were cross-examined at length but nothing could be brought on record in favour of accused---In order to strengthen the departure from police station, the complainant produced departure and arrival entries---Entire case property was sent to Chemical Examiner for examination and report within two days---Report of Chemical Examiner showed that the parcel was received at laboratory in sealed condition and seals were perfect as per copy of letter sent by the complainant---Result of the test showed that the parcel was found containing charas---Accused, in circumstances, were rightly held responsible for committing the offence charged against them because the knowledge and the conscious possession of the accused persons could not be ruled out---No proof regarding previous enmity with the police or mala fide had been produced by accused for their false implication in the case---Neither the accused persons examined themselves on oath in disproof of the charge nor examined any defence witness in support of their pleas---Police could not possibly foist such a huge quantity of charas along with vehicle against the accused---Prosecution had proved its case against the accused beyond any shadow of doubt, in circumstances---Appeal being devoid of merits was dismissed.

Naimatullah Khan v. The State 2012 YLR 251 ref.

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

----Ss. 9(c) & 25---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses---Competence---Principles---Prosecution case was that 144-kilograms of charas was recovered from the vehicle of accused persons---Prosecution witnesses were Police Officials---Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S.103, Cr.P.C.---Validity---Application of S.103, Cr.P.C. had been excluded by S.25 of Control of Narcotic Substances Act, 1997, in such cases---Appeal against conviction was dismissed, in circumstances.

Zafar v. The State 2008 SCMR 1254 rel.

(c) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 4 & 5---Delay in sending samples of contraband for chemical analysis---Effect---Accused had objected that parcel was sent to Chemical Examiner with delay of two days and it was kept at police station, hence it could not be said that the same was in safe custody---Record showed that recovery was made on 19.12.2012 at 2230 hours and the parcels were received in the office of Chemical Examiner on 21.12.2012, therefore, there was no substance in the submissions made by defence---Report of Chemical Examiner showed that the seals of the parcels were perfect as per copy of letter sent and no tampering was alleged, therefore it could not be said that the property was not in safe custody.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Complainant acted as Investigating Officer---Plea that complainant having acted as Investigating Officer, was an interested witness---Validity---No bar existed that a complainant could not be an Investigating Officer of the case.

Zafar v. The State 2008 SCMR 1254 rel.

A.R. Faruq Pirzada and Shabbir Ali Bozdar for Appellants.

Abdul Rehman Kolachi, Deputy Prosecutor General for the State.

2019 Y L R 1809

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD MUSHTAQUE and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

C. Ps. Nos.D-187, D-334 and D-1119 of 2019, decided on 13th March, 2019.

Constitution of Pakistan---

----Arts. 25 & 199---Admission in university---Applicant was of domicile of other Province---Reasonable classification---Discrimination---Scope---Petitioners applied admission for MBBS and BDS at the university in the Province of Sindh while holding domiciles of other provinces---Plea raised by petitioners was that they could not be discriminated for seeking admissions on basis of their domicile---Validity---Decision taken by Pakistan Medical and Dental Council demonstrated reasonable classification based on an intelligible differentia which distinguished persons or things that were grouped together from those who had been left out---Differentia giving priority to or preference to local students of each province separately had rational nexus to objects sought to be achieved by such classification---What was unreasonable in one set of circumstances could well be reasonable in another different set of circumstances---Policy decision of Pakistan Medical and Dental Council was applicable across the board and was being adhered to by all provinces for granting admissions in their universities and colleges---High Court declined to interfere in decision of Pakistan Medical and Dental Council as there was no discrimination if policy decision was applied in all the provinces with same criteria---Constitutional petition was dismissed in circumstances.

Sajjad Qadir Awan and Muhammad Ajmal for the Petitioners (in C.P. No.D-187 of 2019).

Khalid Mehmood Siddiqui and Ghulam Rasool Korai for the Petitioner (in (C.P. No.D-334 of 2019).

Zuhaib Ahmed and Naimatullah Soomro for the Petitioner (in C. P. No.D-1119 of 2019).

Suhail H.K. Rana for PMDC (in C.Ps. Nos.D-334 of 2019 and D-1119 of 2019).

Abdul Waheed Siyal for JSMU, M. Arif for Respondent No.2 (in C.P. No.D-187 of 2019).

Ghulam Mujtaba Saheto, for Baqai University.

2019 Y L R 1817

[Sindh]

Before Nadeem Akhtar, J

Mst. ZULEKHA KHANUM---Appellant

Versus

PERVAIZ AKHTER and others---Respondents

C.P. No.S-678 of 2004, decided on 15th February, 2019.

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

----S. 15---Eviction petition---Default in payment of rent---Accumulated rent---Scope---Landlady sought eviction of tenant on the ground of default in payment of rent---Plea of tenant was that he used to pay accumulated rent for several months to the landlady through rent collector who, despite his repeated requests, did not come to collect the rent for the disputed period and due to such delay rent was paid after six months---Rent Controller ordered for eviction of tenant and Appellate Court allowed the appeal---Validity---If landlord accepted accumulated rent from the tenant periodically or with intervals, it did not mean that he did not desire or expect rent to be paid within time by the tenant as required by law, or that he had waived his right to claim rent within time---Such practice by the landlord in no way overrided or negated the express provisions of law nor could it absolve the tenant from discharging his statutory obligation of paying the rent to the landlord within time under the provisions of relevant laws---Even the court had no power to superimpose any new procedure or method for payment of rent extraneous to the statute---Tenant was bound to pay rent to the landlord within time as required by law through any of the modes prescribed by law; and it was not duty of the landlord to collect rent from the tenant or to remind or chase him for payment of rent; and, payment of accumulated rent even once by a tenant would make him liable to eviction---Tenant had, in the present case, admittedly paid accumulated rent of six months, which showed that there was a clear default on his part---Judgment passed by Appellate Court was set aside and the order passed by Rent Controller for eviction of tenant was restored---Constitutional petition was allowed, accordingly.

Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32 fol.

Messrs Tar Muhammad Janoo and Co. v. Taherali and others 1981 SCMR 93; Syed Waris Ali Tirmizi v. Liaquat Begum 1980 SCMR 601; Messrs Praqma Leather Industries v. Mrs. Sadia Saijad PLD 1996 SC 724; Mst. Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489; Messrs Abdul Razzaque Abdul Sattar v. Abdul Shakoor and another 1999 SCMR 519 and Shezan Ltd v. Abdul Ghaffar 1992 SCMR 2400 rel.

Allah Din v. Habib, PLD 1982 SC 465 and Haji Rozi Gul v. Mst. Mumtaz Begum and others 1999 SCMR 1915 ref.

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

----S. 15---Eviction petition---Terms of tenancy agreement to continue after its expiration--- Scope--- Even after expiration of the period of tenancy stipulated in the agreement, the terms and conditions between the parties regarding the mode and time of payment of rent were to continue to remain in force---Where the parties had mutually agreed for advance payment of rent for each month, then the parties would be bound by such condition even after expiration of the tenancy agreement---Under S.15, Sindh Rented Premises Ordinance, 1979 if the tenancy was based on a written agreement, the tenant was liable to pay rent within fifteen days after expiration of period for payment of rent fixed in the agreement, and after expiration of the agreement, within sixty days from the date when the rent became due and payable, failing which tenant had to face consequences of ejectment.

Messrs Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642 and Saifuddin and another v. Senior Civil Judge/Rent Controller VIII, Karachi (South) and 7 others 2007 SCMR 128 rel.

Imran Ahmed for Petitioner.

Pervaiz Akhter called absent Respondent No.1.

IVth Additional District Judge, Karachi East Respondent No.2.

Vth Rent Controller Karachi East Respondent No.3.

2019 Y L R 1829

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

UBEDULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-100 of 2011, decided on 25th May, 2018.

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

----Ss. 302 & 149---Qatl-i-amd, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party armed with weapons assaulted on complainant party, made firing upon the brother of complainant on the pretext of 'karap' with wife of accused---Accused party, thereafter killed the wife of accused---Ocular account of the occurrence had been furnished by three witnesses including complainant---Record showed that one day prior to the incident, the complainant party purchased paddy seedling from the accused party---On the day of incident, at about 4.00 a.m., complainant party went for plucking the paddy seedling from the land of the accused which was at distance of fifty paces away from their houses---Complainant party, after plucking the paddy seedling, were returning back and when reached near the house of co-accused, where all the accused allegedly emerged from their houses and killed the deceased after declaring him 'karo'---Deceased was not blamed as 'karo' before the incident and if the accused persons had any intention to kill the deceased, then there was no reason for them to wait for him till 8.00 a.m., when deceased was already within their sight---Complainant contended that accused persons fired from their respective guns from distance of twenty paces, which hit deceased on his back and other parts of his body resulting his death---No witness had received a single pellet injury when the fires were made from the guns from such a distance, the pellet would usually spread, which was incredible---Complainant had deposed that the accused persons after committing murder of deceased went towards their houses with intention to kill the wife of accused, who were followed by the complainant where he found the dead body of deceased lady---Circumstances suggested that complainant party could not witness the second part of the incident (murder of deceased lady) that in what manner she was murdered by the accused party, when deceased being blamed as 'karo' was done to death then despite extreme fury against the accused party then how the complainant party had access to go inside their house without having any fear to their lives---Complainant had admitted in his cross examination that at 4.00 a.m., he left his house without having any food, but the post-mortem examination on the dead body of the male deceased revealed that his stomach was full of semi digested food---Said witness stated that they had received the dead bodies back at 3.30 p.m. and came directly to their village for funeral---Eye-witness, in his cross-examination, had deposed that they received the dead bodies back at 1.00 or 2.00 p.m. and that they brought the dead bodies to their house and his statement was recorded at police station on the same day at about 2.00 p.m.---Medical Officer negated the version of witnesses and had deposed that he received the dead body of male deceased at hospital and started its post-mortem at about 4.00 p.m. and completed at 5.00 p.m.---Woman Medical Officer deposed that she received dead body of the female deceased and her post-mortem was started at 5.00 p.m. and finished at 6.00 p.m.---All the eye-witnesses admitted that their lion-clothes including deceased were stained with mud but none of them had shown the place of plucking the paddy seedling to the police to believe that as to whether they had gone to pluck the paddy seedling or not---Record transpired that FIR was lodged with delay of about five hours to the incident without any plausible explanation, which reflected due deliberation and consultation---Post-mortem was conducted on the dead bodies with delay of about 8/9 hours after the incident, for which there was no plausible explanation furnished by the eye-witnesses---Evidence of mashir showed that police collected blood-stained earth and three shells from the place of Vardat at 8.30 or 9.00 a.m. but the mashirnama of place of incident revealed that it was prepared at about 3.30 p.m.---Mashir had disclosed that his signatures were obtained on blank papers---Mashir, in his examination-in-chief deposed that he had seen the dead body of lady with towel wrapped on her neck---Neither the said towel was secured by the Investigating Officer during course of investigation nor was produced before the trial court to substantiate the version of the complainant party regarding commission of murder of female deceased at the hands of the accused---In the present case, the crime weapons, guns, allegedly secured from the possession of the accused persons were not sent to Forensic Science Laboratory for report to match the same with empties secured from the place of Vardat, which might justify the version of the complainant party---Record showed that accused persons had been acquitted from the cases and their acquittal had not been challenged by the prosecution, which had attained finality---Incident was said to have taken place during broad hours of the day near the village, which was witnessed by number of the inhabitants of the vicinity as admitted by the witnesses---No independent person from the said area was cited as witness to prove the version of complainant party---Said material contradictions in the evidence of prosecution witnesses impaired the transparency of their statements and rendered the same highly doubtful---Presence of eye-witnesses at the place of occurrence at relevant time had been found to be doubtful and the medical evidence coupled with recovery had also been belied by the ocular account furnished by the complainant party---Circumstances established that prosecution had failed to bring home the guilt against the accused persons beyond any reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and the accused persons were acquitted in circumstances by setting aside his conviction and sentence recorded by the Trial Court.

Roohul Amin and another v. The State 2014 SCMR 348 and Zulfiqar Ali v. The State 2008 SCMR 796 ref.

Zafar v. The State 2018 SCMR 326; Nazir Ahmed v. The State 2018 SCMR 787 and Mst. Shazia Parveen v. The State 2014 SCMR 1197 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind, its benefit was to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right.

Muhammad Masha v. The State 2018 SCMR 772 rel.

Asif Ali Abdul Razzaque Soomro for Appellants.

Habibullah Ghouri for the Complainant.

Sharafuddin Kanhar, A.P.G. for the State.

2019 Y L R 1844

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Agha Faisal, JJ

QADIR BUX alias GHULAM SHABBIR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Gas Government of Pakistan and 2 others---Respondents

Constitution Petition No. D-79 of 2017, decided on 3rd October, 2018.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 11 & 42---Compressed Natural Gas (Production and Marketing) Rules, 1992, R. 11---Ministry of Petroleum and Natural Resources, Government of Pakistan Notification No. CNG-7(81-)V/ 10 1-1-MPM dated 04-10-2011---Compressed Natural Gas, supply of---Moratorium---Petitioner was a Compressed Natural Gas Supplier duly permitted by Oil and Gas Regulatory Authority and was aggrieved of denial of gas supply on grounds that Federal Government had imposed a moratorium on gas supply to Compressed Natural Gas stations---Validity---Oil and Gas Regulatory Authority letter was issued prior to imposition of moratorium however, said permission categorically stipulated that petitioner was required to adhere to gas load approved by gas utility management company concerned in accordance with gas supply contract---Oil and Gas Regulatory Authority letter was prima facie conditional and also required adherence to contract with gas supplier in such regard---Request of petitioner to concerned gas supplier company was filed subsequent to imposition of moratorium and hence no infirmity was identified with respect to denial by gas supplier company---High Court declined to interfere as nothing was placed on record to suggest that moratorium infringed upon any Fundamental Right and constitutional petition was misconceived and devoid of merit---Petition was dismissed in circumstances.

Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602 rel.

Habibullah G. Ghouri for Petitioner.

Shakeel Ahmed S. Abro for Respondent No.2.

Nisar Ahmed G. Abro, Deputy Attorney General for Respondent No.3.

2019 Y L R 1854

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

MOHIB ALI---Appellant

Versus

RETURNING OFFICER WARD NO.4, KHAIRPUR and 17 others---Respondents

Election Appeal No.S-39 of 2016, decided on 28th September, 2018.

Sindh Local Government Act (XLII of 2013)---

----S. 54---Sindh Local Councils (Election) Rules, 2013, Rr.60, 61 & 62---Failure to serve copies of election petition---Appellant assailed election of Local Council but petition was dismissed by Election Tribunal---Validity---Copies of election petition were not served upon respondents particularly the contesting respondent as required under R.61 of Sindh Local Councils (Elections) Rules, 2013---Even polling agents who were easily ascertainable and identifiable were not made as respondents otherwise their version would have also come on record---High Court declined to interfere in the findings of Election Tribunal regarding maintainability of election petition as same was neither contrary to record nor had violated any provision of law and was unexceptionable---High Court declined to examine other issues as issue of maintainability was decided against the appellant---Appeal was dismissed in circumstances.

Zia Ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Muhammad Ameen and another v. Jawaid Ali and 5 others 2017 YLR Note 429, p. 309; Jam Javed Ahmed Khan Dahar v. Haji Muhammad Akbar and 14 others (Appeal No.03 of 2017); Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Abdul Hakeem v. Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 7 others (Election Appeal No.29 of 2016) and Tariq Hussain Kubar v. Subhab Ali and others (Election Appeal No.41 of 2016) ref.

Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo for Appellant.

Muhammad Aslam Jatoi, Assistant Attorney General and Ali Mutahir Shar, State Counsel for Respondents Nos. 1-13.

Nisar Ahmed Bhanbhro for Respondent No.14.

Nemo for Respondents Nos. 14-18.

2019 Y L R 1865

[Sindh]

Before Ahmed Ali M. Shaikh, C J and Mohammad Karim Khan Agha, J

AFTAB AHMED MEMON---Petitioner

Versus

The CHAIRMAN, NAB and others---Respondent

C. Ps. Nos.D-630, D-4509, D-4560 and D-3543 of 2016, decided on 27th March, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Criminal Procedure Code (V of 1898), S.497(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Mala fide---Further inquiry---Case of further inquiry---Illegal allotment of land---Petitioners were accused of misuse of authority in allotment of land and sought pre-arrest bail on grounds of mala fide of National Accountability Bureau Authorities---Validity---Pre-arrest bail was an extraordinary relief and was only available in cases where there had been mala fide on part of complainant or investigating agency---Mala fides was often difficult to prove and could be inferred from facts and circumstances surrounding/concerning a particular case---Tinges of mala fide by National Accountability Bureau in including petitioners could exist in reference as both allotments were cancelled and there was no loss caused to the State and no benefit to any of the petitioners---High Court confirmed pre-arrest bail of petitioners as facts and circumstances made it a case of further inquiry---Pre-arrest bail was confirmed in circumstances.

Maqbool Ahmed Lehri and another v. National Accountability Bureau and another 2016 SCMR 154; Abdul Qadir v. Federation of Pakistan 2002 SCMR 1478; The State and others v. M. Idress Ghauri and others 2008 SCMR 1118; Ramesh M. Udeshi v. The State 2005 MLD 1854 and Muzammil Niazi and others v. The State PLD 2003 Kar. 526 ref.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Ali Asghar Buriro for Petitioner (in C.P. No. D-630 of 2016).

Faiz H. Shah for Petitioner (in C.P. No. D-4509 of 2016).

Shabeeh Ishrat Hussain for Petitioner (in C.P. No. D-4560 of 2016).

Ravi R. Pinjani for Petitioner (in C.P. No. D-3543 of 2016).

Muhammad Altaf, Special Prosecutor, NAB for Respondents.

2019 Y L R 1878

[Sindh]

Before Ahmed Ali M. Shaikh, C J and Mohammed Karim Khan Agha, J

MUHAMMAD IDREES and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman Office and 2 others---Respondents

Constitution Petitions Nos. D-3877, D-4862, D-4984, D-3854, D-3670, D-3305, D-3320, D-3321, D-3338, D-3418, D-3468, D-3508 of 2017, D-4233, D-5864 and D-6052, of 2016, decided on 23rd December, 2017.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Misuse of authority---China cutting---Petitioners were accused facing charges under National Accountability Ordinance, 1999 for converting amenity plots into residential and commercial plots---Validity--- Karachi Development Authority and officials and beneficiaries made vast amounts of money, loss was caused to public exchequer and people of area were deprived of parks and other recreational facilities where their children could play, or hospital or a school etc., which would have benefitted local community---All accused in reference connived together to give effect to their plan of illegal enrichment by misusing their authority or failing to exercise their authority and benefitting themselves and others---Such was a case of joint criminal enterprise where each of accused played his role in achieving common criminal objective which could not have been achieved without active involvement and connivance of each of other accused who each played his role in criminal act and question was only whether his role in criminal act was to a lesser or greater extent---Officials of Development Authority did not verify any documents and did not meet any of original allottees about whom it had come on record that those were fictitious persons---Officials belatedly tried to deny their signatures but signatures matched those on their Vakalatnamas and no such issue was raised before Trial Court and such could be an afterthought in order to escape liability---Sufficient material on record was available in shape of statements under S.161, Cr.P.C. of Prosecution witnesses and plot transfer orders duly signed by them prima facie connected petitioners to the offence for which they were charged---Bail was refused in circumstances.

Rai Mohammed Khan v. NAB 2017 SCMR 1152 rel.

Ms. Sabiha Parveen v. Syed Nasir Abbass DG KDA (Crl.O.P.No.7 K/2017 in Crl.O.P.11 K/16); Mumtaz Ul Haq v. NAB (Civil Petition No. 609K of 2017); Tariq Bashir v. State PLD 1995 SC 34 and Abdul Aziz Khan v. The State PLD 2003 SC 668 ref.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail is an extraordinary relief and is only available in case where there has been mala fide on part of complainant or investigating agency.

Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, confirmation of---Case of further inquiry---Petitioner was doctor by profession and was accused of charges under National Accountability Ordinance, 1999 for selling amenity plots causing loss to national exchequer---Validity---Statement under S.161, Cr.P.C. of prosecution witness was not convincing and did not appeal to reason and was not corroborated by any other piece of evidence---Petitioner was a doctor by profession and was not an estate agent or broker so it was difficult to find as to how he could have managed sale/transfer of as many as 7 plots in manner mentioned in statement under S.161, Cr.P.C. of said prosecution witness making case of further inquiry---Pre-arrest bail was confirmed in circumstances.

Khaleeq Ahmed for Petitioner (in C.P. No.D-3877 of 2017).

Sardar Anjum Shiraz for Petitioner (in C.P. No.D-4862 of 2017).

Ali Gohar Mashroof for Petitioner (in C.P. No. D-4984 of 2017).

Muhammad Ilyas Khan and Muhammad Farooq for Petitioner (in C.P. No. D-3854 of 2017).

Fayaz Ahmed for Petitioner (in C.P. No. D-3670 of 2017).

Abdul Wahab Baloch for Petitioner (in C.P. No. D-4233 of 2016).

Mahmood A. Qureshi for Petitioner (in C.P. No. D-5864 of 2016).

Abdul Wahab Baloch for Petitioner (in C.P. No. D-6052 of 2016).

Aamir Mansoor Quershi and M. Rehman Ghous for Petitioner (in C.P. No. D-3305 of 2017).

Abdul Wahab Baloch for Petitioner (in C.P. No. D-3320 of 2017).

Abdul Wahab Baloch for Petitioner (in C.P. No. D-3321 of 2017).

Mushtaq Ahmed Khan for Petitioner (in C.P. No. D-3338 of 2017).

Muhammad Nizar Tanoli for Petitioner (in C.P. No. D-3418 of 2017).

Naheed Afzal Khan for Petitioner (in C.P. No. D-3468 of 2017).

Abdul Wahab Baloch for Petitioner (in C.P. No. D-3508 of 2017).

Yassir Siddiqui, Special Prosecutor, NAB for Respondents.

2019 Y L R 1897

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Khadim Hussain Tunio, JJ

BAHAUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-105 of 2009, decided on 21st July, 2018.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses---Competence---Principles---Prosecution case was that 269 slabs of charas, each slab weighing 1-kilogram, total 269-kilograms were recovered from the secret cavities of a vehicle, driven by accused, out of which, 15-kilograms were sealed for samples while remaining charas was sealed separately---Report in that regard had been received in positive---Accused, in circumstances, was liable to be held responsible for having only 15-kilograms of charas in his possession which offence attracted provision of S.9(c) of the Control of Narcotic Substances Act, 1997---Accused had been convicted by the trial court for life imprisonment accordingly---Circumstances established that the prosecution had succeeded in establishing its case beyond any shadow of doubt---Appeal was dismissed accordingly.

Ameer Zeeb v. State PLD 2012 SC 380; 2013 SCMR 302; 2007 PCr.LJ 426; 2011 SCMR 984; 2012 YLR 1316; 2012 PCr.LJ 886; 2012 YLR 1372; 2007 SCMR 206; 2008 SCMR 742 and PLD 2010 SC 1052 ref.

Ammer Zeeb v. The State PLD 2012 SC 380; Mst. Nasreen Bibi v. State 2014 SCMR 1603; Abdul Sattar v. State 2016 SCMR 909 and Para Din v. State 2016 SCMR 806 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Seizure of narcotics---Appreciation of evidence---Chemical analysis---Delay in sending sample to Chemical Analyser---Effect---Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were not mandatory and controlled the substantive provisions of the Act and to apply in such a manner that its operation would not frustrate the purpose of the Act---Failure to follow the Rules would not render the search, seizure and arrest under the Act, absolute nullity and non-est---Objection having been raised to the effect that the contraband was unsealed or tampered with or manipulated delay would not affect the result of analysis.

PLD 2009 SC 39 rel.

Sohail Ahmed Khoso for Appellant.

Khadim Hussain Khooharo, A.P.G. for the State.

2019 Y L R 1926

[Sindh (Hyderabad Bench)]

Before Aziz-ur-Rehman and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

IIIRD ADDITIONAL SESSIONS JUDGE, HYDERABAD and 6 others--Respondents

Constitution Petition No.D-416 of 2014, decided on 1st November, 2019.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 7 (1)--- Illegal dispossession--- Restoration of possession--- Principle--- Withdrawal of complaint--- Effect--- On complaint filed by respondent, Trial Court handed over possession of disputed property, to her under S. 7 of Illegal Dispossession Act, 2005, as an interim arrangement--- Respondent, after seeking possession withdrew her complaint--- Plea raised by petitioner was that the complaint could not have been withdrawn without return of the possession as the same was handed over as interim arrangement during pendency of the complaint--- Validity--- Offence and offender was described in S. 3 of Illegal Dispossession Act, 2005, and whoever would commit the offence of illegal dispossession against a lawful owner or occupier then such person indeed could be prosecuted under 'substantive provisions' of Illegal Dispossession Act, 2005, without any restriction--- Offence was described exhaustively in S. 3 of Illegal Dispossession Act, 2005, but not the offenders in specific terms rather it used general terms, such as 'no one' and 'whoever' for the offenders---High Court set aside order of withdrawal of complaint and remanded the matter to Trial Court to decide the application afresh---Constitutional petition was allowed accordingly.

Gulshan Bibi and others v. Muhammad Sadiq and others (Civil Petition No.41/2008, Civil Appeals Nos. 2054/2007 and 1208/2015); Sheikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 and Edward Henry Louis v. Dr. Muhammad Safdar 2009 PCr.LJ 1359 ref.

Mansab Ali v. Suleman and 7 others 2008 PCr.LJ 199 rel.

Mashooque Ali Bhurgri for Petitioner.

Allah Bachayo Soomro, Additional A.G. for Respondents.

Nemo for the Private Respondents.

2019 Y L R 1965

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

LYARI DEVELOPMENT AUTHORITY through Law Officer---Appellant

Versus

MUHAMMAD MAROOF SULTAN and 3 others---Respondents

IInd Appeals Nos. 149 and 137 of 2016, decided on 17th July, 2018.

Civil Procedure Code (V of 1908)---

----S. 100---Limitation Act (IX of 1908), S. 5---Second appeal---Limitation---Condonation of delay---Contention of appellant was that original file was lost in the office---Validity---Nothing was on record as to which original file was lost, when the same was lost and when found traced---Appellant was delivered certified copy of impugned judgment on 07.09.2016 while appeal was filed after more than ninety days without any cogent and sound reasons---Limitation did create a valuable right in favour of a party who was deriving benefit---Such right could not lightly be intercepted---Aggrieved party was bound to be vigilant in invoking legal remedies within the stipulated period unless extraordinary circumstances were available to show inability for not approaching the Court within that period---Cause of delay in filing the present appeal was neither cogent nor sufficient to believe that Law Officer did not handle the original file of the case with due care---Application for condonation of delay was dismissed---Second appeal was dismissed being time-barred, in circumstances.

1980 CLC 1446 rel.

Ali Akbar Poonawala, Nadir Khan Burdi and Shaukat Mohammad Ali for Appellant (in IInd Appeal No.149 of 2016).

Mazhar Imtiaz Lari for Appellant (in the connected Appeal No.137 of 2016).

Ch. Muhammad Iqbal for Respondent No.1.

2019 Y L R 1971

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

GAJDHAR alias ANAND---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. D-794 of 2018, decided on 20th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860 ), Ss. 409, 468, 471, 477-A, 109 & 34---Criminal breach of trust by a clerk or servant, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged, fraudulently destroying or defacing or attempting to destroy or deface, or secreting, a will etc, abetment, common intention---Bail refusal of---Petitioner had been granted bail till he was convicted by the Trial Court, however, said judgment of the Trial Court was set aside by High Court and the case was remanded to the Trial Court with directions to complete the trial in ninety days---Petitioner contended that he was entitled for concession of bail on the ground that the Trial Court had failed to comply with the order of High Court and had not been able to conclude the trial within stipulated time---Validity---Progress report, submitted by the Trial Court, showed that the trial could not be concluded mostly due to the adjournments sought by the petitioner---Recently, case was being adjourned for additional cross-examination of six prosecution witnesses, who had been recalled on an application of the petitioner under S. 540, Cr.P.C.---Directions issued by High Court were not mandatory but directory in nature, as such the petitioner could not claim bail on said ground alone as a matter of right---Delay in finishing the trial, if any, was caused because the petitioner filed application for the summoning of six witnesses which was allowed by the Trial Court---Time and again, petitioner had either filed an adjournment application or his witnesses were absent---Trial Court in the progress report had assigned reasoning for the delay on each and every date of hearing and the same were found satisfactory for the High Court---Bail was refused to the petitioner, in circumstances.

Nisar Ahmed v. The State and others PLD 2016 SC 11 and Abdul Qadir Sahar v. The State PLD 2004 Kar. 287 ref.

1998 PCr.LJ 320 and 1998 PCr.LJ 358 distinguished.

M.A. Kazi for Applicant.

Abdul Jabbar Qureshi, D.A.G.-I along with Israr Ali and Humaira Juaid for the State.

Date of hearing: 15th December, 2018.

JUDGEMENT

KHADIM HUSSAIN TUNIO, J.---Through this judgment we intend to dispose of the above captioned bail application filed by the above named applicant in FIR No. 12/2016 of Police Station FIA, C.B.C. Karachi, for an offence under section(s) 409, 468, 471, 477-A, 109, 34, P.P.C. Applicant approached the learned trial Court with same plea which has been declined vide order dated 29.05.2018.

1. Precisely, facts of the prosecution case as envisaged in the FIR is that Branch Operation Manager namely Gajdhar alias Anand of MCB Saira Centre Branch Karachi in connivance with co-accused by adopting different modes of transfer of money by issuing call deposit receipts transfer through Real Time Gross Settlement (RTGS) transactions, cheques clearing credit and online transfer to the account of co-accused persons in Meezan Bank, Bank Al Habib, Habib Metropolitan Branch and another account especially in the account of Shaikh Aqib Masood and by the time of registration of the FIR the amount of Rs.46,730,000.00 were detected and still search of the remaining false transactions is going on. The applicant Gajdhar alias Anand during the course of investigation has voluntarily returned an amount of Rs.30.7 million as such the FIR as stated above was therefore registered.

2. Mr. M.A Kazi, learned counsel for the applicant has argued that on 09.05.2017 the present applicant was granted bail on statutory ground and he continued to remain on bail till the conclusion of his trial on 29.06.2017 when he was convicted and sentenced by this court. The Hon'ble High Court of Sindh set-aside the conviction of the accused vide judgment dated 30.04.2018 in Cr. Appeal No.296/2017 with directions to conclude the same within 90 days. Since the conviction and sentence passed by this court has been suspended and the trial court has failed to comply with the order of this court, therefore the accused may be released on bail. In this respect, he has relied upon case law reported as 1998 PCr.LJ 320 and 1998 PCr.LJ 358 as well as an unreported order dated 05.10.2017 passed by a Division Bench of this Court in Cr. Acqtl. Appeal No. D-80 of 2015 re: Syed Altaf Hussain v. The State.

3. The learned DAG for the State has opposed the instant application on the ground that the accused was convicted by this court though his conviction has been set-aside by the Hon'ble High Court of Sindh but the case is remanded for specific purpose for providing certain documents to the accused under section 94 Cr.P.C. and allowing opportunity to the defence to cross-examine PW-1 and then decide the case within three months.

4. We have heard the learned counsel for either parties and have perused the record.

5. Admittedly, the appellant had been granted bail till he was convicted by the trial court. However, the judgment of the trial court was set aside by this court and the case was remanded back to the trial court with directions to complete the trial in a total of 90 days. Now, the applicant seeks bail on the grounds that the trial court has failed to comply with the order of this court and has not been able to conclude the trial within stipulated time.

6. So far alleged non-compliance of directions of this Court for conclusion of trial is concerned, in this context progress report was called from the trial Court, which has been submitted by the learned Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi vide letter No.604/2018.SCIB/Karachi, dated 13.12.2018, which on perusal shows that the trial could not be concluded mostly due to the adjournments sought by the learned Counsel representing the applicant/accused. Apart from that, it has also been noted that the case is now being adjourned for additional cross-examination of 06 P.Ws, who have been recalled on an application under section 540, Cr.P.C of the applicant/ accused. It is further observed that the directions issued by this Court are not mandatory but directory in nature, as such the accused cannot claim bail on this ground alone as a matter of right.

7. In case of Nisar Ahmed v. The State and others (PLD 2016 Supreme Court 11), the Hon'ble Supreme Court has held that :-

"Non-compliance of directions issued by the High Court to the trial Court to conclude the trial expeditiously or within specified time could not be considered a valid ground to grant bail to the accused".

1. A Division Bench of this Court was pleased to observe in Crl. Bail Application No. D-817 of 2001 Re: Muhammad Nawaz alias Deno and another v. The State that:

"It needs to be clarified that indulgence shown by the superior Courts by issuance of such directions for the trial Court to conclude cases within some specified period are only meant/ aimed to expedite proceedings of the cases against the accused and not to harm them with so-called new ground for bail in case of non-compliance of such directions, as vehemently argued by Mr. Muhammad Ayaz Soomro. It will be seen that such a concept is totally alien to any statutory provision. Learned counsel, when asked to refer any provision of law in this context also failed to do so. As observed above in the cases referred by learned counsel also the question of grant of bail to an accused was taken into consideration on the principle of hardship, with reference to the nature of the offence and the period for which accused had remained in custody without conclusion of trial and not merely due to non-compliance of earlier directions."

1. Similar point was again considered and decided by this Court in case of Abdul Qadir Sahar v. The State (PLD 2004 Karachi 287), wherein it was observed as under:

2019 Y L R 1985

[Sindh]

Before Arshad Hussain Khan, J

NAZEER AHMED and another---Plaintiffs

Versus

KARACHI PORT TRUST through Chairman Karachi Port Trust, Karachi and 2 others---Defendants

Suit No. 882 of 2002, decided on 11th October, 2018.

(a) Karachi Port Trust Act (VI of 1886)---

----S. 87---Suit against Karachi Port Trust---Requirements---Suit against Karachi Port Trust could be filed after service of notice under S.87 of Karachi Port Trust Act, 1886---No notice under S.87 of Karachi Port Trust Act, 1886 was served by the plaintiffs prior to filing of the suit---Legal notice sent by the plaintiffs could not be termed as notice under S.87 of Karachi Port Trust Act, 1886---Suit being not maintainable was dismissed, in circumstances.

Karachi Port Trust v. National Insurance Corporation 2018 YLR 1172; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737; United Marine Agencies (Pvt.) Ltd. and others v. Trustees of the Port of Karachi and others 2007 CLD 1092; Messrs Creative Information Services (Pvt.) Ltd. through Principal Officer v. Karachi Port Trust through Chairman and another 2006 MLD 1397; Abdul Rahim Khan v. The Trustees of the Port of Karachi 1988 CLC 2119; Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367; Echo West International (Pvt.) Ltd. v. Pak Land Cement Ltd. 2008 CLD 85 and Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1055 ref.

PLD 1976 Kar. 425; 1988 CLC 2119 and PLD 1959 (WP) Kar. 369 rel.

(b) Damages---

----Proof---Person claiming special damages had to prove each item of loss with reference to the evidence brought on record and for general damages relating to mental torture, anguish, distress and defamation and same had to be assessed following the rule of thumb.

Abdul Majid Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary M/o Finance and others 2013 SCMR 507 rel.

Khalid Daudpota for Plaintiff.

Abdul Razzak for Defendants.

2019 Y L R 2013

[Sindh]

Before Nadeem Akhtar, J

Chaudhary MUHAMMAD SALEEM and 5 others---Petitioners

Versus

Vth ADDITIONAL DISTRICT JUDGE, KARACHI (SOUTH) and another---Respondents

Constitutional Petition No.S-55 of 2014, decided on 9th February, 2019.

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

----Ss. 15 & 16---Eviction petition---Denial of relationship of landlord and tenant by tenant---Non-compliance of tentative rent order---Effect---Petitioner/ landlord assailed the order of Appellate Court whereby while allowing the appeal of tenant it had set aside the orders passed by Rent Controller---Contention of tenant was that tentative rent could not be determined unless the issue of relationship of landlord and tenant was not decided---Validity---Plaint filed by tenant seeking specific performance of the alleged sale of demised premises in his favour was rejected and he had not challenged the said order---Tenant had attempted to establish his alleged right and title in respect of the premises but had failed in such attempt---Tenant had no other or further remedy in law to claim or enforce his alleged right or title in respect of the demised premises---Orders passed by Rent Controller for deposit of rent and then striking off the defence of tenant due to non-compliance of the said order were in accord with the law---Order passed by Appellate Court, being not sustainable in law, was set aside--- Constitutional petition was allowed.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647; Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

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

----S. 15---Eviction petition---Denial of relationship of landlord and tenant by tenant---Scope---Where tenant asserts that he is no more a tenant as he has purchased the property, even then he has to vacate the property and file a suit for specific performance of the sale agreement---Tenant would be entitled to possession of the property in accordance with law only if he succeeds in the said suit.

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

----S. 15---Eviction petition---Denial of relationship of landlord and tenant by tenant---Scope---Landlord would be entitled to recover rent till the time civil court passes a decree against the landlord in a suit for specific performance.

Farhan Zia Abrar for Petitioners.

Muhammad Rafi Kamboh for Respondent No.2.

2019 Y L R 2037

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

GHULAM MUHAMMAD and others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. S-96 of 2017, decided on 1st June, 2018.

(a) Criminal trial---

----Witness---Chance witness---Scope---Chance witness was one who, in the normal course, was not supposed to be present on the crime spot---Such witness must offer cogent, convincing and believable explanation to justify his presence at a place where normally he was believed to be not present. [p. 2044] A

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302, 364, 506(2), 114, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, kidnapping or abducting in order to murder, criminal intimidation, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding of material evidence---Effect---Prosecution case was that accused party kidnapped the nephew of the complainant and then murdered him---Ocular account of the incident was furnished by complainant and his brother---Complainant claimed to have gone after the deceased but he never attempted to disclose the nature of work for going there---Said witness had admitted in his cross-examination that on the day of occurrence he got leave for some personal work, but he did not exhibit any such proof---Prosecution, in circumstances, was under legal obligation to have produced such a leave application and in absence thereof legal presumption within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 would be nothing but otherwise---Failure of the complainant in giving any reasonable explanation for accompanying the deceased after taking leave from his duties was sufficient to bring his claim of eye-witness as doubtful---Record showed that complainant took the dead body to police station where inquest report and Danistnama were prepared by the Duty Officer with advice to the complainant to lodge the FIR, but he preferred to obtain a letter for post-mortem only while saying to lodge the FIR later---Such conduct of the complainant was quite strange, particularly when the complainant in FIR not only specifically named the accused persons but gave their parentage and address---Record transpired that the dead body was handed over to the complainant after post-mortem, but, he, instead to lodge the FIR returned to his village---Complainant came to lodge the FIR on the following day---Such deliberate delay in bringing the details of the incident, in absence of any plausible explanation, would go against the prosecution---Mere delay in lodgement of FIR was not fatal but it required explanation from the prosecution---Eyewitness though deposed on the same line, but had not supported the complainant's version regarding preparation of memo of inspection of dead body, inquest report and Danistnama by Police Officer---Complainant had failed to disclose the motive of the incident---Plea of the complainant party that since there was no motive for them to falsely involve the accused persons, their evidence was to be taken as correct, was misconceived---If the accused were dacoits/kidnappers then they, after killing the deceased would have kidnapped the complainant with rest of his witnesses, but, in the present case, they, after committing the murder of deceased, went away---Such conduct would never appear to be logical for a prudent mind particularly when such deliberation leaving of complainant and witnesses was sure to come as evidence against them when complainant and his witnesses knew them not only by their names but their parentage and addresses---Investigating Officer had found the assailants, except the accused, to be innocent and placed their names in column No. 2, who were joined subsequently by the Magistrate---Motive of the murder of deceased remained shrouded in mystry, as nobody had spoken the truth---Father of the complainant was available at police station but he did not lodge the FIR against the accused---Witnesses of the ocular account being closely related to the deceased were chance witnesses and their place of residence was far away from the spot, hence their presence at the venue of occurrence created doubt---No independent person had been cited as witness/mashir despite the fact that a number of private persons had gathered at the venue of occurrence---No overt act had been attributed to the accused persons, though they were armed with deadly weapons but they neither caused any injury to the deceased nor to the complainant party---Record transpired that one of the eye-witnesses and a mashir were not examined by the prosecution for no obvious reason, therefore, the presumption would be drawn under Art. 129(g) of Qanun-e-Shahadat, 1984, that if they had been produced and examined in the case they would have been unfavourable to the prosecution case---Incident was said to have taken place during broad hours of the day near link road of the city, where number of people had gathered as admitted by the witnesses, yet no independent person from the area was cited as witness to prove the version of the complainant party---Material contradictions were noticed in the evidence of prosecution witnesses, which shattered the veracity of their evidence and demolished the whole case of prosecution---Facts and circumstances of the present case showed that the presence of eye-witnesses at the place of occurrence on relevant time had been found to be doubtful and the medical evidence coupled with recovery had also been belied by the ocular account furnished by the complainant party---Circumstances established that prosecu-tion had failed to establish the guilt against the accused persons beyond any reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

2006 PCr.LJ 1826; 1995 SCMR 127; 1982 SCMR 178; 1997 SCMR 25; 1999 SCMR 697; 2005 YLR 2301; 2005 YLR 1757; 2005 YLR 1629; 2005 YLR 1490; 2005 YLR 2192; 2000 YLR 1307; 2000 YLR 862; 2005 YLR 86; PLD 1994 SC 368; PLD 2000 Kar. 94; 2006 MLD 1104; 2000 YLR 2123; 2004 YLR 2787; 2000 YLR 3166; 2003 MLD 820; 2004 YLR 2343; PLD 2005 SC 63; 2005 YLR 627; 2001 SCMR 41; 2005 YLR 1226; 2005 YLR 1240; 2003 SCMR 457; PLD 1998 Kar. 502; 1969 SCMR 461; 2005 YLR 2972; 2005 YLR 3174; 2005 PCr.LJ 1442; 2005 PCr.LJ 1384; 2011 YLR 2238; 2018 MLD 394; 2018 PCr.LJ Note 46 p.55; 2009 SCMR 523; 2009 SCMR 1133; PLD 2006 SC 109; 2015 YLR 2642; 2005 SCMR 49; 2005 SCMR 1568; 2007 SCMR 1519; 2007 SCMR 518; 2011 SCMR 429; 2011 SCMR 725; 2003 SCMR 884; 2015 MLD 92; 2010 SCMR 1020; 2008 SCMR 222; 2015 YLR 150; 2015 YLR 2018; PLD 2002 SC 52; 2015 YLR 1015; PLD 2015 SC 424; Cr.LJ 265 Lahore; 2015 SCJ 368 (e) SCAJK; 2008 YLR 2496; PLD 2004 SC 663; 2004 PLD SC 271; 2001 SCMR 199; 1971 SCMR 659; 1971 SCMR 530; 2007 MLD 1511; 2012 SCMR 1869; PLD 2015 Lah. 426; 2016 MLD 730; 2011 YLR 2238 and 2018 MLD 394 ref.

Muhammad Rafiq v. The State 2014 SCMR 1698; Wajahat Ahmed v. State 2016 SCMR 2073; Muhammad Nadeem alias Deemi v. State 2011 SCMR 872; Muhammad Zubair v. State 2007 SCMR 437; Muhammad Akram v. State 2012 SCMR 440; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Haq Nawaz and others v. State and others 2018 SCMR 95 and Mst. Shazia Parveen v. The State 2014 SCMR 1197 rel.

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

----Ss. 302, 364, 506(2), 114, 148 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, criminal intimidation, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Effect-Record showed that FIR had been lodged with delay of more than 29 hours---Police station was at distance of seven kilometres from the place of incident, FIR, in circumstances, seemed to have been lodged after consultation and deliberation.

Sardar Bibi and others v. Muneer Ahmed and others 2017 SCMR 344 rel.

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

----Ss. 302, 364, 506(2), 114, 148 & 149----Qatl-i-amd, kidnapping or abducting in order to murder, criminal intimidation, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Complainant in his cross-examination admitted that co-accused fired at deceased from the distance of one or two feet and other co-accused made fire upon deceased from distance of one or half feet---Eye-witness supported the version of complainant by stating that co-accused persons fired from distance of two to three feet---Medical evidence showed that Medical Officer did not find any blackening or charring on the injuries of the deceased---If any fire was made from the distance of one to two feet, then blackening did occur---Such circumstance totally negated the version of complainant party.

Muhammad Zaman v. The State 2014 SCMR 749 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind, its benefit would be extended in favour of the accused not as a matter of grace or concession, but as a matter of right.

Muhammad Masha v. The State 2018 SCMR 772 rel.

Athar Abbas Solangi for Appellants.

Altaf Hussain Surhio and Safdar Ali Bhutto for the Complainant.

Sharafuddin Kanhar, A.P.G. for the State.

2019 Y L R 2052

[Sindh]

Before Salahuddin Panhwar, J

AMIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1635 of 2018, decided on 7th February, 2019.

Criminal Procedure Code (V of 1898 )---

----Ss. 497 & 103---Control of Narcotic Substances (XXV of 1997), Ss. 9(c), 25 & 51---Possession of Charas weighing 3700 grams---Bail, refusal of---Huge quantity of narcotic substance---Scope---Further inquiry---Scope---Petitioner contended that provisions of S.103, Cr.P.C. had not been followed and real culprit, in the offence, had been benefitted---Validity---Application of S. 103, Cr.P.C had specifically been excluded by virtue of S.25 of the Control of Narcotic Substances Act, 1997 , therefore, Trial Court had rightly attended the plea of the petitioner---Accused while seeking bail in a case, falling within prohibitory clause of S.497, Cr.P.C., was required to bring his case within the meaning of further inquiry not by raising defence but from collected material , which too, by tentative referral thereof---Section 51, Control of Narcotic Substances Act, 1997, prima facie, had created bar in granting bail in such like cases, therefore, the bail, normally, need not be granted on mere claim of further inquiry ---Contention of the petitioner, regarding his substitution by releasing real culprit, had no substance---In absence of any serious animosity there appeared no reason for the police to implant such huge quantity of charas, which, admittedly, the petitioner had not attempted to establish by placing any documentary material---Aspects like arrangement of measurement tool etc. could not be touched/examined at bail stage as such like questions would always require a response from the concerned---Petitioner had failed to make out a case for the concession of bail---Bail was refused to the petitioner, in circumstances.

Munir Ahmed Gilal for Applicant.

2019 Y L R 2056

[Sindh]

Before Nazar Akbar, J

TALIB HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 51 of 2017, decided on 28th January, 2019.

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

----Ss. 320 & 337-G---Criminal Procedure Code (V of 1898), S. 516-A---Motor Vehicles Act (IV of 1939), S. 94---Provincial Motor Vehicles Ordinance (XIX of 1965), S. 94---Qatl-i-khata by rash or negligent driving, hurt by rash or negligent driving, vicarious liability of owner of vehicle---Superdari of vehicle given by investigating officer---Effect---Non-production of case property in court---Effect---Necessity for insurance against third party risk---Duty of driver in case of accident and injury to any person---Scope---Appellant had filed appeal against conviction under Ss.320 & 337-G, P.P.C.---Validity---High Court observed that investigating officer did not produce the bus involved in the offence under S.320, P.P.C. with challan in the Trial Court nor did he produce any document of inspection of the bus by Motor Vehicle Inspector---Record showed that bus was taken into custody by the investigating officer on the same day (13.11.2009) and without inspection by Motor Vehicle Inspector said bus was probably handed over to the owner on 15.11.2009---Owner of the bus was also supposed to be interrogated as he was co-accused, since his employee had caused death by an accident while driving bus owned by him---Owner had vicarious responsibility of the consequences of the offence---Bus owner, before entrusting the bus to his employee/driver was supposed to have a third party insurance---Investigating officer did not inquire about any insurance policy by the bus owner regarding third party risk---Owner was guilty of violating S. 94 of Motor Vehicles Act, 1939---Investigating officer, on the order of High Court, produced a superdaginama through which he had handed over the bus on 15.11.2009 to the owner---Superdaginama had not been produced before the Trial Court---Report prepared by investigating officer revealed that bus owner had scraped the bus in 2012 and died in 2015---Trial Court had ordered for payment of diyat amount as the death was caused by accident in which bus was the case property---Payment of diyat was in the nature of liability---Custody of bus, in the given facts and circumstances of the case, had always remained with the police---Investigating officer could not be trusted for whatever he had reported---Senior Superintendent of Police (Investigation) was directed to take action against the investigating officer and to deposit the amount of diyat, as ordered in the impugned judgment---Case was adjourned.

(b) Motor Vehicles Act (IV of 1939)---

----S. 94---Necessity for insurance against third party risk---Scope---Use of word "shall" for the person to use or allow any other person to use motor vehicle meant that it was a statutory duty of the owner of the vehicle to have covered the third party risk otherwise he should not allow his driver to use the vehicle.

Appellant present in person.

Ms. Rahat Ehsan, Additional P.G. for the State.

Muhammad Farooq, SSP (Investigation) East Karachi.

2019 Y L R 2078

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

YAR MUHAMMAD and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-1012 and 1023 of 2018, decided on 23rd January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qatl-i-Amd, concealing of evidence and abetment---Bail, refusal of---Further inquiry---Common intention---Assessment of evidence---Accused persons were arrested with a specific role in commission of murder---Plea raised by accused persons was that they were innocent and falsely involved in the case---Validity---Prima facie accused persons shared their common intention in commission of heinous offense and tried to conceal evidence---If several persons were united with common purpose to do any criminal offense, all those who would assist in completion of their object would be equally guilty---Nothing was available on record to believe that complainant party had falsely implicated accused persons in commission of offence---Charge was framed by Trial Court and case was to be fixed for recording of evidence---Material available connected accused persons with commission of offense which carried capital punishment and they failed to make out their case within purview of S.497(2) of Cr.P.C.---Tentative assessment of evidence was to be made and deeper appreciation was to be avoided---Bail was refused in circumstances.

Muhammad Tanveer v. The State and another PLD 2017 SC 733; Nisar Ahmed v. The State and others 2014 SCMR 27; Amir Bux Machi v. The State 2013 YLR 2190; Mulo Ahmed v. The State 2011 MLD 1171 and Alam Zar Khan v. The State and another 2014 YLR 1595 ref.

Mian Taj Muhammad Keerio for Applicants (in Criminal Bail Application No.S-1012 of 2018).

Aijaz Shaikh for Applicant (in Criminal Bail Application No.S-1023 of 2018).

Muhammad Yaseen M. Khaskheli for the Complainant.

Shahid Ahmed Shaikh, D.P.G. for the State.

2019 Y L R 2086

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

ALLAHDAD alias DADAN and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-35 of 2015 and Confirmation Case No. D-03 of 2015, decided on 6th November, 2018.

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

----Ss. 302, 324, 457, 147, 148 & 149---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, house breaking by night in order to commit offence, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Appreciation of evidence---Prosecution case was that the accused party while armed with deadly weapons entered into the house of complainant, made indiscriminate firing upon the inmates of the house and committed murder of five persons and caused fire arm injuries to two persons---Motive behind the incident was that three dacoits/companions of accused party were murdered in the encounter by police but accused party had asked the complainant party that they had given such information to the police, hence they committed the offence---In the present case, there were two sets of accused, one who were nominated in FIR and second, whose names had been disclosed in further statement of the complainant after two days of the FIR---Accused were identified by the complainant and other eye-witnesses in the light of bulb as at that time bulbs were glowing in the house of the complainant---Though the Investigating Officer had not collected the bulbs but he had confirmed the version of the complainant---Parties were known to each other which was evident from their evidence, so there was no question of mistaken identity of three accused---Prosecution had produced four eye-witnesses including complainant and injured, who supported the version of complainant---Record showed that ocular evidence was corroborated by medical evidence furnished by Medical Officers, who conducted post-mortem of deceased persons---Said witnesses had deposed that the injuries were ante-mortem in nature and were caused by discharge from fire arm and were sufficient to cause death of deceased persons in ordinary course of life---Act of accused persons appeared to be a shocking and brutal which created sense of insecurity in the public-at-large---Record transpired that two accused were implicated by the complainant in his further statement recorded after two days of the FIR---Evidently, said accused were previously known to the complainant party but the complainant did not disclose their names in FIR and implicated them after two days of the FIR---Such circumstances created reasonable doubt regarding their involvement in the case---Appeal of said two accused was allowed and they were acquitted by setting aside the conviction and sentences recorded by the Trial Court---Motive set-up by prosecution against the three nominated accused stood established and post-mortem examination on the dead bodies of the deceased were conducted with no lapse of time---Investigating Officer had visited the place of incident which was situated in the house of complainant, secured empties, blood stained earth of each deceased separately from place of incident, inspected injuries of injured ladies, dead bodies and secured last worn clothes of deceased---Investigating Officer had produced mashirnamas and inquest reports and deposed that he arrested the accused and prepared memo of arrest which was produced by him---Said witness had corroborated the evidence of mashir on each count and deposed that blood-stained earth and clothes were sent to Chemical Examiner, chemical report reflected that articles were stained with human blood---Said piece of evidence substantiated the ocular testimony of the complainant and his witnesses---Circumstances established that act of the nominated three accused was gruesome and merciless, thus appeal was dismissed to the extent of said accused persons.

Barkat Ali v. Mohammad Asif and others 2007 SCMR 1812; Attaullah alias Qasim and another v. The State 2006 YLR 3213; Kamran Khan and another v. The State 2005 PCr.LJ 129; and Nasir Khan and others v. The State 2005 PCr.LJ 1 ref.

Khalid Javed and others v. The State 2003 SCMR 1419 rel.

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

----Ss. 302, 324, 457, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, house breaking by night in order to commit offence, punishment for rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Appreciation of evidence---FIR was lodged promptly---Scope---Incident occurred on 16.6.2009 at 12.00 night and the FIR was lodged on the following day at 2.00 a.m., after two hours, wherein three accused had been nominated---No question of consultation or cooking-up false story arose, in circumstances.

(c) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Mere relationship of the witness with the deceased alone was not enough to discard his/her testimony until the malice was proved.

(d) Criminal trial---

----Benefit of doubt---Principle---Any reasonable doubt arising out of the prosecution evidence pricking the judicious mind was sufficient for acquittal of the accused.

Mohammad Mansha v. The State 2018 SCMR 772 rel.

Haji Shamsuddin Rajper for Appellants.

Illahi Bux Jamali for the Complainant along with Complainant.

S. Sardar Ali Shah, D.P.G. for the State.

2019 Y L R 2098

[Sindh (Larkana Bench)]

Before Agha Faisal, J

Haji ARZ MOHAMMAD---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and 8 others---Respondents

Election Appeal No.8 of 2016, decided on 18th September, 2018.

Sindh Local Government Act (XLII of 2013)---

----S. 46---Sindh Local Councils (Elections) Rules, 2015, Rr. 62(3), 61(b) & 64---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Scope---Neither election petition was verified nor prior notice was served upon the respondents---Election Tribunal dismissed the election petition---Validity---Provisions with regard to verification of pleadings were mandatory in nature and same did not confer Election Tribunal with any discretion to condone any infraction thereof---Petitioner did not serve prior notice of proceedings upon the respondents---Requirement for serving copies of election petition upon the respondents prior to institution of election petition had been violated in circumstances---Appeal was dismissed, in circumstances.

Inayatullah v. Syed Khursheed Ahmed Shah and others 2014 SCMR 1477 ref.

Oil and Gas Development Corporation Ltd. v. Claugh Engineering Ltd. 1999 MLD 254; Muhammad Afzal v. Mubarak Ali Anjum and 3 others 1997 MLD 769 and Salahuddin v. Syed Mansoor Ali Shah and others 1997 SCMR 414 distinguished.

Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312; Bilal Akbar Bhatti v. Election Tribunal Multan and others PLD 2015 Lah. 272; Jaleel Ahmed v. Election Commission of Pakistan and others 2017 YLR 557 and Muhammad Ameen and another v. Jawaid Ali and others 2017 YLR Note 429 rel.

Inayatullah G. Morio for Appellant.

Rafique Ahmed K. Abro for Election Commission.

Khadim Hussain Khoso for Respondent No.4.

Abdul Rasheed Abro, Assistant Attorney General for Federation of Pakistan.

Ali Raza Pathan, State Counsel for Province of Sindh.

2019 Y L R 2121

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD ZUBAIR through Attorney---Appellant

Versus

Mst. LALA RUKH SAMAD KHAN and 2 others---Respondents

First Rent Appeal No.S-28 of 2017, decided on 14th September, 2018.

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

----S. 17---Ejectment petition---Default---Landlord and tenant, relationship of---Registered document---Presumption of ownership--- Scope--- Tenant, after passing of ejectment order, approached Rent Controller and claimed ownership of rented premises---Rent Controller set aside the ejectment order and dismissed the ejectment case---Validity---Appellant had presented himself as owner of the premises while instument of ownership was not in his name---Sub-Registrar concerned had reported that 'B-Lease' was executed in the name of tenant---Rent Controller had rightly presumed ownership on the basis of registered document---Presumption of ownership would go in favour of tenant as long as registered 'B-Lease' was in existence---High Court declared the order passed by Rent Controller as proper and beffitting to the scenario---Appeal was dismissed.

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

----S. 27---Power of Rent Controller to set aside his own order---Scope---Rent Controller, being a tribunal, has inherent power to set aside his own order in case fraud or misrepresentation is committed during the proceedings.

Murtaza Hussain for Petitioner.

Bashir Ahmed for Respondent No.1.

2019 Y L R 2128

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD YOUSIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 367 of 2010, decided on 1st December, 2018.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Prosecution case was that accused party while armed with weapons assaulted on complainant party, made firing upon them, as a result of which nephew of complainant succumbed to the injuries---Allegedly, incident had taken place in a broad day light at the lands of complainant, where accused together with other accomplices arrived---Identification of the accused was not dubious because both parties were known to each one---Death of deceased had been caused with one fire shot---Medical Officer had opined that one head injury was sufficient to cause death of deceased---Record transpired that Trial Court acquitted co-accused persons by extending benefit of doubt though they were members of unlawful assembly---Said acquitted accused were also in league, members and facilitators created harassment at the scenario---Accused with their help and assistance, lost his control and had caused murder of the deceased---Common intention of the co-accused persons could not be ruled out---Co-accused persons also made aerial firing and their identity was not doubtful and they had been ascribed with specific role of firing, thus Trial Court had wrongly acquitted the co-accused persons---Circumstances established that prosecution had proved its case beyond shadow of any reasonable doubt and had rightly convicted the accused for the offence for which he had been charged---Appeal was dismissed, in circumstances.

2004 SCMR 1185; 2008 SCMR 707; 2008 SCMR 6; 2009 SCMR 230; 2018 MLD 1821; 2011 SCMR 1190; 2010 SCMR 1791; 1995 SCMR 1793; 1995 SCMR 599; 2008 SCMR 1064; 2011 YLR 674; PLD 1973 SC 418; 2009 SCMR 825; 2009 SCMR 502; 2007 SCMR 455; 2011 SCMR 1046; 2017 YLR 428, 2018 PCr.LJ Note 91; 2018 YLR Note 109, 2018 YLR 786 and 2018 PCr.LJ 991 ref.

1994 SCMR 1 rel.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Weapon of offence was recovered on the pointation of accused---Reliance---Scope---On the pointation of accused one 12-bore single barrel gun without number was taken into police custody---Weapon with crime empty was sent to Chemical Examiner with delay---Positive report was received to the effect that one 12-bore crime empty was fired from the 12-bore SBBL shot gun---Such recovery supported the prosecution case.

2009 SCMR 493 rel.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Delay of about more than fourteen hours in lodging the FIR---Effect---Fact remained that distance between place of incident and the police station was approximately twenty kilometres---Complainant first reported the matter together with injured at police post, obtained letter for treatment of the injured then took him to the hospital from where the injured was referred to civil hospital---Consumption of time in travelling with the injured deceased was explained because injured was shifted with the help of complainant from one place to another---Such delay was not fatal to the prosecution case, in circumstances.

2009 SCMR 565 rel.

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

----S. 342---Examination of accused---Scope---Merely taking plea in the statement recorded under S.342, Cr.P.C. would not render the entire evidence of prosecution questionable because the culmination of truth was attached to the prosecution evidence.

Mehmood A. Qureshi for Appellant.

Mamoon A.K. Shirwany for the Complainant.

Talib Ali Memon, Assistant Prosecutor General for the State.

2019 Y L R 2144

[Sindh]

Before Omar Sial, J

MEHBOOB ELLAHI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 315 of 2014, decided on 11th October, 2018.

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

----Ss. 302(b), 337-A(i), 452 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, causing shajjah-i-khafifah, house trespass, common intention---Appreciation of evidence---Benefit of doubt---Withholding of best evidence---Effect---Prosecution case was that the accused persons along with their two other brothers assaulted on the complainant party, which resulted in a firearm injury to son of complainant, who died subsequently---Admittedly, none of the accused-appellants had been assigned the role of shooting at the deceased---Shot that caused the death of deceased had been attributed solely to the absconding co-accused---Allegation on accused was that he had instigated his brothers to shoot at the complainant party---Co-accused was alleged to be present on the spot---Vague allegations of making firing and beating the complainant and his son were raised at trial---No evidence to the effect that two accused had a pre-planned to murder the deceased---Prosecution had produced four witnesses including complainant in order to establish that the shooting occurred at the instigation of accused---One of the prosecution witnesses had testified that the accused was arrested from the hospital while he was present there---Memo of arrest showed that accused was arrested from a bus stop---Said witness had a completely different version to give as compared to the other eye-witnesses regarding post shooting---Testimony of other prosecution witness became unreliable when he categorically testified that the shooting incident took place on the ground floor of the house whereas the official version according to other witnesses was that it took place on the first floor---Witnesses to the memo of site inspection had given a different version as to where the incident took place thus creating dent in their credibility---Version given in the FIR by the complainant that three accused were duly armed with weapons arrived first on the scene, accused arrived later and told his brothers to enter the house, shoot and kill them--- Witness had deposed that three accused arrived and entered his house first and ten minutes later accused-appellant arrived and instigated them to shoot---Eye-witness had testified that all four brothers/accused reached at the same time, holding pistols and that there was a fifth brother accompanying them who was holding stick and a bat---Said fifth mysterious person did not find mention in the accounts narrated by the other witnesses---Contradictions between the witnesses on basic facts created element of doubt regarding presence at the place as of occurrence claimed---In spite of claim that all the accused fired indiscriminately, only one empty was recovered from the spot---Witness to the memo of seizure had testified that even that empty was not sealed on the spot by the Investigating Officer nor did he sign anything---Admittedly, no blood was found on the scene and there was no damage to the property---In spite of the alleged indiscriminate firing only deceased got injured whereas complainant and his son standing with him were not injured, nor was any of many other occupants of the 120 square yard house injured in the firing---Son of complainant not being examined as a witness without any reason which raised a presumption under Art. 129(g) of the Qanun-e-Shahadat, 1984 that had he been examined he would have not supported the prosecution case---Investigating Officer had admitted at trial that no incriminating material had been found against the accused-appellants---First Information Report showed that the incident took place at 7:00 p.m. and the FIR was registered at 9:35 p.m. on the same day---Police Official had testified that he received a telephone call at 7:30 p.m. same day informing him that a person had been injured in a firing incident and that the injured had been taken for treatment to hospital---Said was the first information of the incident, however, the record revealed that the Police Officer did not register the FIR at that moment but instead headed towards the hospital---Police Officer had testified that at 9.35 p.m. the complainant accompanied by his son came to the police station and got registered the FIR, and complainant had a different account to give---Complainant had testified that immediately upon the firing he and his son fell unconscious and they gained consciousness on the same day at about 4.00 a.m.---If complainant fell unconscious at 7.00 p.m. and remained unconscious till 4.00 a.m., there was no way complainant could be present at the police station at 9.35 p.m. on the day of incident---Investigating Officer had testified at trial that on a day earlier to the incident he firstly visited the house of the accused persons at about 10:00 p.m., would indicate that either the incident took place on that very day of visit or that the investigation had begun before the FIR was registered---Circumstances established that prosecution was unable to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 337-A(i), 452 & 34---Qatl-i-amd, causing shajjah-i-khafifah, house trespass, common intention---Appreciation of evidence---Delay in recording the statement of witnesses---Effect---In the present case, statements of two witnesses were recorded under S. 161, Cr.P.C. after a lapse of seven days---No reason was attributed for the delay---Evidentiary value of said statements corroded, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 34---Common intention---Scope---To constitute common intention, it was necessary that intention of each one of the accused persons was known to the rest and shared by them---Accused was entitled to the benefit in case there was a lacuna.

Mohammad Akbar v. The State PLD 1991 SC 923; Mohammad Yaqoob, Sub-Inspector v. The State PLD 2001 SC 378 and Shoukat Ali v. The State PLD 2007 SC 93 rel.

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

----Ss. 302(b), 337-A(i), 452 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, causing shajjah-i-khafifah, house trespass, common intention---Appreciation of evidence---Medical evidence---Scope---In the present case, death of deceased in the firing incident remained unproved as the Medical Officer who had issued the death certificate was not examined at trial---Absence of said Medical Officer without any reason would give rise to presumption under Art. 129(g)---Qanun-e-Shahadat, 1984---Medical certificate of cause of death did not have a date of issuance---No post-mortem of the deceased was conducted to determine the real cause of death---Medical certificate was inconsequential, in circumstances.

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

----Art. 46---Dying declaration---Scope---Dying declaration would receive sanctity only when it was shown that the declaration was indeed given while the deceased had his faculties intact, and was without any external influence or prompting.

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

----Ss. 302(b), 337-A(i), 452 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, causing shajjah-i-khafifah, house trespass, common intention---Appreciation of evidence---Dying declaration---Scope---In the present case, victim was allegedly shot on 20.4.2012 and his statement under S. 161, Cr.P.C. was recorded on 27.4.2012 and finally he died on 15.5.2012---Said statement was being termed as "dying declaration"---Investigating Officer had admitted that he had not sought permission of the Medico Legal Officer to record the statement and that the Medico Legal Officer had given him oral permission to do so---Said witness had admitted his inability to produce any record or evidence to support his assertion---Said statement was not signed by anybody (Doctor, Nurse, Magistrate, independent person), which would help in showing that it was indeed recorded by the deceased---No witness was produced to establish that Investigating Officer even visited the hospital to record the statement of deceased---Senior Medico Legal Officer had, however, testified in court that he had never seen Investigating Officer in the hospital and that he could also not confirm whether the Investigating Officer had visited the hospital---Statement of injured/deceased did not mention time when the Investigating Officer recorded the statement of deceased---Admittedly, the Investigating Officer did not make any effort to record the statement of deceased between 20.4.2012 and 27.4.2012---Said aspect created doubt in the genuineness of the statement of deceased---Prosecution was unable to prove that the declaration was recorded by deceased on his own and with free will, in circumstances.

Mamoon A.K. Sherwani and Aamir Mansoob Qureshi for Appellants.

Muhammad Raza Katwar, A.P.G. for the State.

Zulfiqar Ali Shah for the Complainant.

2019 Y L R 2162

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

Syed SHOAIB HASSAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and others---Respondents

C. Ps. Nos. D-1260, D-2244, D-2656 and D-2657 of 2018, decided on 27th September, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Case of hardship---Direction, non-compliance of---Petitioners were arrested for having assets beyond known sources of income and causing loss to financial exchequer and sought bail on grounds of hardship caused by delay in conclusion of trial---Validity---Earlier bail petitions of petitioners were dismissed by Supreme Court on merits and that huge loss was caused to national exchequer---Non-compliance of a direction given by High Court to a Trial Court to conclude trial within a given period of time did not lead to automatic grant of bail---Such non-compliance was not a fresh ground for grant of bail---Trial could be completed within a period of 3 months as there was no ground of hardship---Bail was dismissed in circumstances.

Anwar Saifullah Khan v. The State 2001 SCMR 1040; Muhammad Saeed Mehdi v. State 2002 SCMR 282; Muhammad Nadeem Anwar v. National Accountability Bureau PLD 2008 SC 645; Himesh Khan v. National Accountability Bureau (NAB) 2015 SCMR 1092; Muhammad Afzal Butt v. State 2015 SCMR 1696; Muhammad Amin Qureshi v. State 2007 PCr.LJ 105; Mansoor Ali v. Chairman NAB PLD 2016 Sindh 41; Mushtaq Ahmed v. Chairman, NAB 2018 YLR 134; Nisar Ahmed v. The State and others PLD 2016 SC 11 and Shahid Umer v. Chairman NAB SBLR 2018 Sindh 357 ref.

Hamood ur Reham Qazi v. Government of Sindh (Civil Petition No. 3381 of 2017); Muhammad Nawaz v. State 2002 SCMR 1881 and Rehmatullah v. State 2011 SCMR 1332 rel.

Barrister Khawaja Naveed Ahmed for Petitioner (in C.P. No.D-1260 of 2018).

Ishrat Ali Lohar for Petitioners (in C.Ps. Nos.D-2244 and D-2657 of 2018).

Arshad H. Lodhi for Petitioner (in C.P. No.D-2656 of 2018).

Fazal Hussain Jamali, Assistant Attorney General of Pakistan for Respondent.

Jangu Khan, Special Prosecutor NAB for Respondents.

2019 Y L R 2178

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

Mst. BANO---Petitioner

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.XII, HYDERABAD and 8 others---Respondents

C. P. No.D-1969 of 2016, decided on 12th September, 2018.

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

----Ss. 173 & 190---Discharge of accused by Magistrate on police report---Refusal to take cognizance of offence by Magistrate---Scope---Petitioner assailed order of Magistrate whereby he approved the report of police and disposed of the case under "C" class---Validity---Accused persons were nominated in the FIR with specific role---Statements of eye-witnesses were recorded under Ss.161 & 164, Cr.P.C.---Prosecution witnesses supported the case and claim of complainant---Magistrate had to make only tentative assessment of the material collected by the Investigating Officer and produced before the Court---Detailed and deeper appreciation was to be made after recording evidence---Sufficient material was available to corroborate the contention of complainant and there was no ground or justification to disbelieve the evidence of prosecution witnesses at earlier stage---Constitutional petition was allowed and the impugned order of the Magistrate was set aside, in circumstances.

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

----Ss. 190, 173 & 161---Refusal to take cognizance of offence by Magistrate---Discharge of accused by Magistrate on police opinion---Scope---Where prosecution witnesses had fully implicated the accused in their statements recorded under S.161, Cr.P.C., Magistrate could not discharge the accused on the basis of police opinion.

Abdul Hameed v. State PLD 1997 Lah. 164 rel.

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

----S. 190---Cognizance of offence by Magistrate---Magistrate could take cognizance of offence even if report submitted by Investigating Officer was that accusation was baseless and no case was made out against the accused.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63 rel.

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

----S. 173---Report of police officer---Ipse dixit of investigating officer could not be accepted to exonerate the accused from the commission of alleged offence.

Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 ref.

Shamsuddin Khushk for Petitioner.

Aijaz Shaikh for Respondents Nos. 3, 4 and 8.

Muhammad Ismail Bhutto, Additional A.G. for Respondents.

Syed Meeral Shah Bukhari, Additional P.G. for Respondents.

None present on behalf of remaining private Respondents.

2019 Y L R 2185

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

BAHRAM---Applicant

Versus

ZUBAIR AHMED and 11 others---Respondents

Criminal Miscellaneous Application No. S-945, decided on 15th March, 2019.

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

----Ss. 497(5)---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 147, 148 & 149---Qatl-i-amd, hurt by rash or negligent act, rioting, armed with deadly weapon and common object---Application for cancellation of bail, refusal of---Delay in lodging of FIR---Role of aerial firing---Further inquiry---Scope---Complainant sought cancellation of bail granted to accused persons, who in prosecution of their common object with main accused committed murder by firing upon the deceased---First Information Report of the incident was lodged with delay of 26 hours for which no plausible explanation was given by the complainant, hence possibility of consultation before registration of FIR could not be ruled out---Role of firing deceased was attributed to main accused while the allegation against respondents was that they made aerial firing---Main accused and three other accused persons were found innocent during investigation and their names were placed in Column No.2 of the challan---Trial Court had rightly held that the case against respondents required further inquiry---Discretion exercised by Trial Court in granting pre-arrest bail to respondents was not arbitrary or against settled principles of law---Criminal miscellaneous application was dismissed being devoid of merits.

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

----Ss. 497 & 497(5)---Bail, cancellation of---Principles for grant of bail and its cancellation are altogether different---Once bail is granted by a court of competent jurisdiction by exercising its powers then strong and exceptional grounds are required for interference.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 ref.

Ali Gul Abasi for Applicant/Complainant.

A.R. Kolachi, D.P.G. for the State.

2019 Y L R 2187

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

SHAH FAHAD and another---Applicants

Versus

Pir GHULAM KAREEM and others---Respondents

Civil Revision Applications Nos.260 of 2014 and 42 of 2017, decided on 21st December, 2018.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Plaint could not be rejected in piecemeal and even if single relief/prayer could be granted, the plaint of the suit would survive.

(b) Words and phrases---

---'Waiver'---Meaning.

Black's Law Dictionary (Ninth Edition) rel.

Imdad Ali R. Unar along with Ghulam Murtaza Shaikh for Applicants (in R.A. No. 260 of 2014 and for Respondents Nos.2 and 3 in R.A. No.42 of 2017).

Ishrat Ali Lohar along with Ashok Kumar for Applicant (in R.A. No.42 of 2017).

Mrs. Razia Ali Zaman Khan for Respondent No.1 (in R.A. No.260 of 2014).

Ms. Ambreen Siyal along with Zulqarnain Talpur for Respondent No.1 (in R.A. No.42 of 2017 and for Respondent No.2 in R.A. No.260 of 2014).

Mian Taj Muhammad Keerio for L.Rs. of Respondent No.3 (in R.A. No.260 of 2014).

Habib-ur-Rehman Jamali, Assistant A.G. Sindh for Respondents.

2019 Y L R 2198

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Messrs NAUSHEHRO FEROZE-1 through Managing Partner---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 2 others---Respondents

C.P. No. D-2165 of 2012, decided on 2nd August, 2018.

(a) Compressed Natural Gas (Production and Marketing) Rules, 1992---

----Rr. 3 & 7---Letter No. CNG-7(8)/11-Vol-1-MPM dated 04-10-2011, Ministry of Petroleum and Natural Resources---Compressed Natural Gas license---Petitioner was a partnership firm and sought natural gas connection for supply to its CNG filling station---Petitioner was aggrieved of non-issuance of license by Oil and Gas Regulatory Authority (OGRA) for supply of gas to his CNG station--- Validity--- CNG Connections/ Supply was permitted to entities that were in conformity with prescriptions of laws, rules and regulations---Order passed by Oil and Gas Regulatory Authority did not merit petitioner as petitioner was not in the list of entities those were granted relief by Supreme Court after having been determined that they had complied with all relevant laws, rules and regulations as per regulatory mechanism of Oil and Gas Regulatory Authority---Decision of Oil and Gas Regulatory Authority was in field stating that petitioner had not complied with all relevant laws, rules and regulations as per regulatory mechanism of Oil and Gas Regulatory Authority---High Court in exercise of Constitutional jurisdiction, declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Al-Karim CNG v. Government of Pakistan and others W.P. No. 28949 of 2015 and Maqbool Ahmed v. Oil and Gas Regulatory Authority and others C.P. No. D-395 of 2015 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policies of Government---Interference by High Court---Principle---Policies of Government may not be interfered with by High Court unless it is manifest that a policy is violative of Fundamental Rights enshrined in the Constitution.

Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602 rel.

Khalid Jawed for Petitioner.

Asim Mansoor Khan, Deputy Attorney General for Respondent No.1.

Asim Iqbal and Farmanullah for Respondents Nos.2 and 3.

Date of hearing: 23rd May, 2018.

2019 Y L R 2246

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

TARIQ HAMEED PARACHA and others---Appellants

Versus

DANISH AHMED and another---Respondents

Special Criminal Anti-Terrorism Acquittal Appeal No. 41, Special Criminal Anti-Terrorism Jail Appeals Nos. 58 to 61 of 2014 and Confirmation Case No. 7 of 2017, decided on 4th December, 2018.

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

----Ss. 365-A & 34---Kidnapping for ransom---Several accused---Object of kidnapping the abductee for ransom could not be achieved without mentioning the role of each accused and that all accused had the same objective i.e. to kidnap the abductee for ransom---All the accused, in such a case, were liable for the same offence of kidnapping for ransom and same punishment.

Khwaja Hasanullah v. The State 1999 MLD 514; State v. Farman Hussain PLD 1995 SC 1 and Noor Muhammed v. State 1999 SCMR 2722 rel.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Delay of about twenty days in lodging the FIR---Effect---Record showed that abductee went missing on 27.1.2012---On the same day, complainant lodged missing report---Later on, Bhabi of complainant, on the same day, received a call on her mobile, demanding Rs.15 lac for the return of abductee---Negotiation with kidnappers started and ransom amount of Rs. six lac was settled---Uncle of abductee handed over Rs. six lac ransom to three of the accused, who told him that his nephew would be released; however, the abductee was not released and uncle of abductee received a call two days later from the kidnappers demanding a further ransom for the return of abductee---During said period, uncle of abductee was in contact with the Citizens Police Liaison Committee who had encouraged him to continue the negotiations so that they could try and trace the cell numbers of the kidnappers---On 15.2.2012, FIR was lodged---Early missing report indicated little chance of the FIR being concocted and the delay thereafter was caused by the family through uncle of abductee trying to negotiate for the return of abductee for which they even paid a ransom---Family of the abductee had tried with the assistance of the Citizens Police Liaison Committee to secure the return of the abductee on their own but when their effort failed FIR was got registered---Said circumstances had given sufficient explanation as to why there was such a long delay in registration of the FIR---Twenty days delay in registering the FIR was not fatal to the prosecution case as the missing report was lodged on the very first day which lessened the chance of any concoction.

(c) Criminal trial---

----Extra judicial confession---Reliance---Scope---Extra judicial confession could be relied upon if it was supported by some unimpeachable corroborative evidence in order to bring home a conviction.

Sajid Mumtaz v. Basharat 2006 SCMR 231 rel.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Sentence, alteration of---Accused were charged for kidnapping the nephew of complainant for ransom and then murdering him---In the present case, dead body of the abductee/child had been recovered on the pointation of accused persons---Place, where the body was recovered, was undisputed although there were some contradictions as to how the body was recovered---Record showed that two accused had been caught red-handed coming to collect the second ransom knowing well that they could be recognized from the collection of the first ransom and their calls traced through the SIM recovered from accused whilst arranging meeting point with uncle of abductee and they might have hoped that the Police Officials could make them approvers---Accused had failed to furnish explanation as to how they had knowledge of dead body of abducted boy lying in the waste land---Presumption, in circumstances, could be that the accused were the persons who had thrown the dead body of abductee/boy onto the waste land---Constant contact of uncle of abductee boy with the kidnappers was corroborated by the CDR records---Evidence of uncle of abductee boy linked accused persons to the offence of kidnapping for ransom, who delivered the initial Rs.six lac ransom to three kidnappers---Said witness had seen the said accused persons by virtue of the street lights---Said witness did not know any of the kidnappers before the incident; he was truthful, reliable and trustworthy witness who identified three of the accused in the identification parade---Co-accused took Investigating Officer to the place where victim was abducted, the flat where he was kept prior to his murder and showed him the pillow which was used to suffocate victim which was recovered and the suit case which was used to carry the dead body of deceased from the flat to the waste ground where he was dumped which was also recovered---Non-recovery of ransom money was insignificant as the prosecution had proved its case against all the accused through other evidence on record---All the accused played a role in the kidnapping for ransom and murder of the boy to a lesser or greater extent with the same goal and therefore were equally liable---Circumstances of the case showed that prosecution had proved its case beyond a reasonable doubt against all the accused-appellants and as such their convictions were upheld---Record transpired that three accused had been awarded the death penalty whereas the fourth accused had been awarded rigorous imprisonment for ten years under S. 7(e), subsection (2) of the Anti-Terrorism Act, 1997; however, it was unclear as to which of the accused out of three actually murdered the kidnapped the boy for ransom---Death sentence was converted to that of imprisonment for life by the High Court---Conviction of the fourth accused was upheld and sentence had been enhanced to that of imprisonment for life, keeping in view the legal position that "for a conviction under S. 7(e), subsection (2) of the Anti-Terrorism Act, 1997, the only legal sentence was either death or imprisonment for life and none other".

Hakeem and others v. The State 2017 SCMR 1546; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Tufail v. The State 2013 SCMR 768; Mst. Mehboob Bibi and others v. The State 2017 SCMR 1835; Waqar Zaheer v. The State PLD 1991 SC 447; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Anwar alias Lalu v. The State 2003 YLR 300; Aurangzeb v. The State 2010 PCr.LJ 1281; Ali Imran v. The State PLD 2006 SC 87; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Ahmed Hussain alias AMI and others v. The State PLD 2008 SC 110; Hamid Mahmood and another v. The State 2013 SCMR 1314 and Nazir Shehzad and another v. The State 2009 SCMR 1440 ref.

Muhammad Anwar v. State 2003 YLR 300; Ahmed Hussain v. The State PLD 2008 SC 110 and Ali Imran v. State PLD 2006 SC 87 rel.

(e) Criminal trial---

----Contradictions in the statement of witnesses---Effect---Contradictions of minor nature and not material could be ignored as different witnesses had seen matters from different angles, position, proximity and location.

Zakir Khan and others v. The State 1995 SCMR 1793 rel.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Disclosure by accused---Effect---In the present case, defence objected that recovery of the body of the abducted boy was made on the joint pointation of the accused, which could not be used against them---Validity---Held, plurality of information received before discovery shall not necessarily take any of such information out of Art.40 of Qanun-e-Shahadat, 1984---Discovery of dead body on the pointation of the accused persons was admissible under Art. 40 of Qanun-e-Shahadat Order, 1984.

Nazir Shehzad v. The State 2009 SCMR 1440 rel.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Specific plea taken by accused in their statement---Effect---In the present case, two accused were brothers, they had taken the defence that they had a partnership agreement with uncle of the deceased and because they refused to leave the partnership on the demand of uncle of deceased, who falsely implicated them in the case---Said fact of defence was not put to any of the prosecution witness and as such it was a complete afterthought.

Said Muhammed v. State 1999 SCMR 2758 rel.

(h) Criminal trial---

----Evidence---Statement of related witnesses---Reliance---Scope---Some of the witnesses were related and the defence had not shown that they had any personal enmity towards the accused or any reason to falsely implicate any of them---Such relationship was not relevant in assessing the reliability of their evidence.

Aurangzeb v. The State 2010 PCr.LJ 1281 rel.

Habib Ahmed for Appellant (in Spl. A. T. Acquittal Apeal No. 41 of 2014).

Irshad Ahmed Jatoi for Respondent No.1 (in Spl. A.T.A. Acquittal Appeal No.41 of 2014).

Irshad Ahmed Jatoi for Appellants (in Spl. A.T. Acquittal Appeals Nos.58 to 61 of 2014).

Muhammad Iqbal Awan, D.P.G. for the State (in Spl. A.T. Acquittal Appeals Nos.58 to 61 of 2014).

Dates of hearing: 1st, 8th and 20th November, 2018.

2019 Y L R 2287

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

SARTAJ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-40 of 2015, decided on 10th August, 2018.

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

----Ss. 9(c) & 25---Possession of narcotic substance---Appreciation of evidence---Excise Officials as recovery witnesses---Competence---Principles---Prosecution case was that 35-kilograms of charas was recovered from the truck trailer of accused---Ocular account was furnished by complainant and mashir---Record showed that 35-kilograms of charas contained in 35-packets and arms and ammunition were recovered from the secret cavity of truck trailer driven by the accused---Two hundred grams of charas was separated as samples from each packet for chemical examination---Circumstances suggested that the accused was found responsible for transportation of narcotics---Nothing was available on record to suggest that the said truck trailer was either hired by someone else or he had no knowledge about the availability of narcotic substance therein---In the present case, Excise Officials were witnesses, who were competent witnesses and their evidence could not be discarded only for the reason that they were Excise Officials---Said witnesses had furnished straight forward and confidence inspiring evidence---Nothing was on record to show that said witnesses had deposed against the accused maliciously or out of any animus---Circumstances suggested that it could not be believed that the Excise Officials would plant such a huge quantity of narcotic along with arms and ammunitions against the accused at their own sources---Objection of defence that the complainant had acted as Investigating Officer in the case and that all the witnesses were Excise Officials was of no help to the accused as there was no bar in the law for a complainant to act as Investigating Officer of the case---Witnesses had deposed in the same line to support the prosecution case and despite cross-examination at length, the defence had failed to point out any dent or to extract any material contradiction fatal to the prosecution case---Circumstances established that prosecution had succeeded to bring the guilt of accused to home and had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Kashaf Ameer v. The State PLD 2010 SC 1052; The State v. Zaffar 2008 SCMR 1254 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

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

----Ss. 9(c) & 25---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 35-kilograms charas was recovered from the truck trailer of accused---Defence had objected that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---In view of S. 25 of Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C. had been excluded and non-inclusion of any private person was not a serious defect to vitiate the conviction of accused---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness--- Evidence of Police Official---Reliance---Scope---Prosecution witnesses being Police Officials by itself could not be considered as a valid reason to discard their statements.

Zaffar v. The State 2008 SCMR 1254 rel.

(d) Criminal trial---

----Conviction--- Scope--- Procedural formality could not be insisted at the cost of completion of the offence---If the accused was otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation would not help the accused.

State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

(e) Criminal trial---

----Witness--- Interested witness---Statement of interested witness---Reliance---Scope---Mere status of one as official would not alone prejudice the competence of such witness until and unless he was proved to be interested, who had a motive to falsely implicate the accused or had the previous enmity with the person involved.

Farooq v. The State 2008 SCMR 970 rel.

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

----S. 9(c)---Possession of narcotic substance--- Appreciation of evidence---Acquittal on technicalities---Technicali-ties of procedural nature or otherwise were to be overlooked in case of transportation or possession of narcotics---If such case stand otherwise proved, the approach of the court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

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

----Ss. 9(c) & 29---Possession of narcotic substance---Presumption from possession of illicit articles---Scope---Record showed that recovery of charas from the secret cavity of truck trailer stood to established, hence it was the turn of the accused to prove contrary---Without such proof, the accused would be held guilty by virtue of S. 29 of the Control of Narcotic Substances Act, 1997.

Abdul Baqi Jan Kakar for Appellant.

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

Date of hearing: 6th August, 2018.

2019 Y L R 2316

[Sindh (Hyderabad Bench)]

Before Muhammad Junaid Ghaffar and Amjad Ali Sahito, JJ

MUHAMMAD PARYAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-71 of 2015, decided on 26th June, 2018.

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

----Ss. 302 & 384---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)---Qatl-i-amd, extortion, extortion of money or property, act of terrorism---Appreciation of evidence---Sentence, modification of---Prosecution case was that accused, a police constable, demanded bhatta from younger brother of complainant, on refusal, accused committed his murder---Ocular testimony was furnished by the prosecution in the shape of statements of complainant and two witnesses---Record showed that complainant was not eye-witness and only two persons were eye-witness of the incident---One eye-witness had deposed that on the day of occurrence, he along with other eye-witness was talking to deceased, accused came and demanded money from the deceased to which he replied that today he had no money and he would pay on the next day---Harsh words were exchanged, accused angrily went to the police line and then fired twice at deceased, who fell down on the ground and they shifted him to hospital but he died on the way---Other eye-witness of the occurrence had also supported the version of said eye-witness---Record showed that there had not been any serious challenge to presence of said private eye-witnesses at place of incident nor there was any denial to claim of friendship of said witnesses with the deceased---Accused had also brought nothing on record against eye-witnesses as well as complainant which could justify replacement of real culprit with accused---Eye-witnesses were friends of deceased whose words were believed by complainant, hence, it did not appear to be believable that both of them agreed in substitution of real culprits with innocent person/accused when undeniably the incident was of day-light---Prosecution had examined Police Constable/witness, who was performing his duty on the main gate of police line---In his evidence, said witness had deposed that on the day of incident, his duty was on main gate of police line, accused was also assigned duty at main gate with him---Said witness had stated that he went to sit in the guard room to check the mail, during that accused took his SMG rifle and immediately fired at deceased, standing in front of the gate---Accused had fired two rounds, one hit on the right chest and the other on the right cheek of the deceased, who fell down and other Police Officials came there, apprehended the accused and recovered SMG from him---Said witness had supported the evidence of private eye-witnesses and since the defence never denied murder of deceased in consequence of fires from SMG then it was under obligation to explain otherwise the fact resulting into death of deceased by use of SMG, which was never attempted by defence---Direct evidence of eye-witnesses, duly supported by other witnesses/Police Officials showed that the availability of witnesses at the venue of occurrence at the relevant time was quite natural---Witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of occurrence in clear manner---Said witnesses had also explained the mode and manner of taking place of the occurrence, qua the culpability of the accused---Multiple questions were asked to shatter the confidence of said witnesses and also their presence at the scene of occurrence, but defence could not extract anything from both eye-witnesses as well as other Police Officials and they remained constant on all material points---Record transpired that there was no denial to arrest of the accused along with weapon, used in commission of the offence, which was also a strong corroboration to ocular account---In the present case, ocular account of eye-witnesses was substantiated by the Medical Officer, who conducted post-mortem on the dead body of the deceased---Prosecution never brought any substantial evidence/ material on record to establish demand of bhatta---Mere use of word bhatta would never justify punishment for offence under S. 6 of the Anti-Terrorism Act, 1997---Prosecution had successfully proved its case against accused through ocular account furnished by complainant and eye-witnesses, duly supported by Investigating Officer and Police Officials as well as Medical Officer, hence conviction and sentence under S.302(b), P.P.C. was maintained, however, conviction and sentence for offence punishable under Ss.6(2)(k) & 7(h) of the Anti-Terrorism Act, 1997 was set aside---Appeal was dismissed with said modification.

Muhammad Shah v. The State 2010 SCMR 1009; The State through Prosecutor-General Accountability National Accountability Bureau Islamabad v. Misbahuddin Farid 2003 SCMR 150; Saindad and 2 others v. The State 1972 SCMR 74; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 and Mst. Rukhsana Begum v. Sajjad and others 2017 SCMR 596 ref.

Zahoor Ahmed v. The State 2007 SCMR 1519 and Sagheer Ahmed v. The State 2016 SCMR 1754 rel.

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

----S. 154---First Information Report---Scope and purpose---Basic purpose of FIR was not meant to decide guilt or innocence but to activate the law enforcing agencies to immediately move for collection/preservation of evidence.

Sikandar v. The State and another 2006 SCMR 1786 rel.

(c) Criminal trial---

----Witness--- Interested witnesses---Scope---Interested witness was not the one who was relative or friend but the one who had motive to falsely implicate accused.

Zulfiquar Ahmed and others v. The State 2011 SCMR 492 rel.

(d) Criminal trial---

----Witness---Minor discrepancies in the statement of witnesses---Effect---Minor discrepancies in the statement of witnesses were not enough to demolish the case of prosecution because such discrepancies always occurred on account of lapse of time which could be ignored.

(e) Criminal trial---

----Witness---Statement of the witnesses had to be read as a whole---Scope---Statements of the witnesses had to be read as a whole and the court was not to pick up a sentence in isolation from the entire statement and ignoring its proper reference, used the same against or in favour of a party.

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

----Ss. 302 & 384---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)---Qatl-i-amd, extortion, extortion of money or property, act of terrorism---Appreciation of evidence---Recovery of crime weapon, empties and other articles--- Reliance--- Scope--- Record transpired that Investigating Officer sent recovered crime weapon and empties to Forensic Science Laboratory and report showed that crime empties were fired from the SMG, in question---Clothes of deceased and blood-stained earth were sent to the Chemical Examiner, report of which was positive---Said evidence showed that death of deceased was unnatural at the hands of accused.

Ali Bukhsh and others v. The State 2018 SCMR 354 rel.

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

----Ss. 302 & 384---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)---Qatl-i-amd, extortion, extortion of money or property, act of terrorism---Appreciation of evidence---Motive was not proved---Effect---Prosecution had examined nine witnesses, out of them eight witnesses had not supported the motive/demand of bhatta by the accused---Only one eye-witness had supported the prosecution motive for demand of bhatta---Police Officer/witness, who was on duty at police line, had stated in his cross-examination that being line officer of police line, he had not received any such complaint against accused---Investigating Officer in cross-examination had admitted that he had not heard any complaint of the accused in the past---Rest of the witnesses being Police Officials posted at police line had admitted that previously no complaint was received against the accused regarding demand of bhatta---Prosecution eye-witness had not been corroborated by any of the cited witnesses regarding demand of bhatta---Whether demand of money was for the purpose of bhatta or otherwise, no evidence had been led by the prosecution during the course of trial in that regard---Even the quantum of bhatta had not been disclosed by any of the witness---Prosecution had failed to prove the motive, in circumstances, hence, real cause of occurrence remained shrouded in mystery.

Mst. Nazia Anwar v. The State 2018 SCMR 911 rel.

Aijaz Shaikh for Appellant.

Syed Meeral Shah Bukhari, Addl. Prosecutor General for the State.

Date of hearing: 12th June, 2018.

2019 Y L R 2333

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

Syed AIJAZ ALI SHAH---Appellant

Versus

IFTIKHAR UNAR---Respondent

Criminal Acquittal Appeal No. 100 of 2015, decided on 11th February, 2019.

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

----Ss. 324, 109 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)--Attempt to commit qatl-e-amd, abetment and common intention---Appeal against acquittal---Appreciation of evidence---Non-recovery of empties---Effect---Prosecution case was that accused persons fired upon the complainant party with intention to cause hurt---Accused persons had approached the investigation officer with the plea of alibi and had stated that at the time of occurrence they were present in the office of an advocate--Investigation officer had accepted the plea of alibi---One of the accused persons was acquitted by the High Court under S. 265-K, Cr.P.C.---Complainant and witnesses had deposed that accused was armed with mouser, yet not a single empty shell of mouser was found/collected by the police from the place of incident at the time of inspection---Trial Court by an elaborate and well-reasoned order had arrived at the conclusion that prosecution failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Presumption---Appeal against acquittal has distinctive features and approach to deal with the appeal against conviction is distinguishable from the appeal against acquittal because presumption of innocence is attached in case of appeal against acquittal---Order of acquittal can only be interfered with, if same is found on the face of it to be capricious, perverse, arbitrary in nature or based on mis-reading, non-appraisal of evidence or is artificial, arbitrary and leads to gross miscarriage of justice---Mere disregard of technicalities in a trial without resulting injustice is not enough for interference---Order/judgment of acquittal gave rise to strong presumption of innocence rather double presumption of innocence is attached to such order---Substantial weight is to be given to the findings of lower courts while examining the facts in the order of acquittal.

Muhammad Ijaz v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Amin-ullah and others 2010 SCMR 491 ref.

(c) Criminal trial---

----Benefit of doubt---Whenever there is doubt about guilt of accused its benefits must go

to him and court would not come to rescue the prosecution to fill up the lacuna appearing in its evidence.

Muhammad Akbar Khan for Appellant.

Mehmood A. Qureshi for Respondent No.1.

Abrar Ali Khichi, Additional Prosecutor General Sindh for the State.

Date of hearing: 30th January, 2019.

2019 Y L R 2337

[Sindh]

Before Zulfiqar Ahmad Khan, J

KAIKOBAD EDUL BANKWALA---Plaintiff

Versus

Messrs SHELL PAKISTAN LTD., KARACHI and 2 others---Defendants

Suit No. 632 of 2005, decided on 19th September, 2019.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O. XL, R. 1---Suit for recovery of possession---Appointment of receiver/ administrator---Plaintiff sought recovery of possession of suit property which was resisted by defendants---Validity---Defendants did not bring on record any document to substantiate their title to carved out portion except what had emanated from compromise agreement in an earlier suit---Status of predecessor-in-interest of defendant in earlier suit was admitted to be tenant of ground floor of adjoining building---Rights or interests of defendants could not be prejudiced by appointing administrator in respect of carved out portion---High Court appointed official assignee as administrator of the suit property---Application was allowed accordingly.

Media Max (Pvt.), through Chief Executive v. ARY Communication Pvt. Ltd. through Chief Executive and another PLD 2013 Sindh 555; Sikandar Abdul Karim v. Mst. Qamar Jahan and 11 others 2009 CLC 42; Zafrain Iqbal v. The State 2008 CLC 741; Abdul Karim v. Abdul Karim 2001 MLD 1905; Sardar Walt Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492; Sahib Khan v. Muhammad Ramzan and another 2000 MLD 729; Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others 1997 CLC 243; Muhammad Siddiqui and another v. Muhammad Latif and 3 others 1997 MLD 181; Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others 1993 CLC 1606; Benoy Krishna Mukherjee and others v. Satish Chandra Giri and others AIR 1928 PC 49 and Firm, Manghanmal Tarachand v. Mikanbai and others AIR 1933 Sindh 231 rel.

R.F. Virjee for Plaintiff.

Haq Dad Khoso holds brief for Muhammad Ehsan for Defendant No.1.

Imran for Defendants Nos.2 and 3.

2019 Y L R 2362

[Sindh (Hyderabad Bench)]

Before Mrs. Kausar Sultana Hussain, J

Syed AHMED DANISH---Petitioner

Versus

Mst. MARIAM BAIG and another---Respondents

Constitutional Petition No.S-837 of 2016, decided on 23rd April, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 8 & 14---Limitation Act (IX of 1908), S. 5---Suit for dissolution of marriage---Ex parte decree, setting aside of---Limitation---Condonation of delay---Sufficient cause---Appeal---Scope---Petitioner (husband) assailed order of Family Court whereby it had dismissed his application for setting aside ex-parte judgment and decree for dissolution of marriage---Validity---Petitioner had filed application for setting aside the judgment and decree of khula' after delay of more than 30 days---Conduct of petitioner towards suit of respondent showed that he deliberately avoided to appear inspite of service of notice through different modes including publication---Petitioner again delayed the application for setting aside ex-parte judgment and decree within stipulated period of 30 days---Petitioner was required to explain delay of each day but he failed to do so by not filing application for condonation of delay under S. 5 of Limitation Act, 1908---Section 14(2)(a), Family Courts Act, 1964 prohibited filing of appeal in case of dissolution of marriage on any ground except the one in clause (a) of item (viii) of S. 2 of Dissolution of Muslim Marriages Act, 1939---Object of legislature behind not providing provision as to appeal in case of dissolution of marriage is to protect women from prolonged and costly litigation---Constitutional petition, being not maintainable, was dismissed in limine.

Syed Anayat Hussain Shah for Petitioner.

Date of hearing: 9th April, 2018.

2019 Y L R 2364

[Sindh]

Before Adnan Iqbal Chaudhry and Muhammad Ali Mazhar, JJ

Mst. SAJEDA MUSHTAQ---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 3 others---Respondents

High Court Appeal No.171 of 2018, decided on 15th November, 2018.

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

----Ss. 12 & 21 (d)---Easements Act (V of 1882), Ss. 52 & 60 (b)---Civil Procedure Code (V of 1908), O. VII, R. 11---License agreement, cancellation of---Suit for specific performance---Maintainability---Suit for enforcement of license agreement which was revocable was filed after its cancellation---Trial Court dismissed the suit being not maintainable---Validity---Section 21(d) of Specific Relief Act, 1877 did not allow for specific enforcement of a contract which was revocable---Alleged license was granted for a period of five years and its extension for a further period of five years was conditional on mutual consent of the parties---Impugned license had been cancelled---Suit had abated on the expiry of license---Appeal was dismissed, in circumstances.

M.A. Naser v. Chairman Pakistan Eastern Railways PLD 1965 SC 83; Zaidis Enterprises v. Civil Aviation Authority PLD 1999 Kar. 181; M.A. Naser v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83; Noorani Traders v. Pakistan Civil Aviation Authority PLD 2002 Kar. 83; Bank Alfalah Ltd. v. Neu Multiplex and Entertainment Square Co. 2015 YLR 2141; Aftab Hussain v. Government of Sindh 2015 MLD 1688; Messrs Zaidi's Enterprises v. Civil Aviation Authority PLD 1999 Kar. 181 and Royal Foreign Currency v. Civil Aviation Authority 1998 CLC 374 ref.

Green Fuels v. Shell Pakistan Ltd. 2005 CLC 1602; Pervaiz Hussain v. Arabian Sea Enterprises Ltd. 2007 SCMR 1005; Jagat Singh v. District Board, Amritsar AIR 1940 Lah 18; Hafiz Manzoor Ahmed v. Mohammad Abdul Jamil AIR 1933 Allahabad 842; and Mathuri v. Bhola Nath AIR 1933 Allahabad 517 distinghished.

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

----O. VII, R. 11---Plaint, rejection of---Factors to be considered.

Though for the purpose of deciding rejection of a plaint it is primarily the contents of the plaint that are to be looked into, but apart from the plaint, other material on the record which is admitted by the plaintiff can also be taken into consideration for said purpose; and that the Court is not obligated to accept each and every averment contained in the plaint to be true, nor does the provision of Order VII, Rule 11, C.P.C. contemplate that the plaint must be deemed to contain the whole truth and nothing but the truth.

Jewan v. Federation of Pakistan 1994 SCMR 826; Muhammad Saleemullah v. Additional District Judge, Gujranwala PLD 2006 SC 511; S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan 2002 SCMR 338 and Haji Abdul Karim v. Florida Builders PLD 2012 SC 247 fol.

Anwar Hussain and Shafqat Ali Shah Masoomi for Appellant.

Muhammad Shoaib Mirza, Assistant Attorney General for Pakistan for Respondents Nos. 1 and 2.

Dr. Shah Nawaz Memon for Respondents 3 and 4.

Dates of hearing: 28th September, 9th and 12th October, 2018.

2019 Y L R 2376

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Haji ABDUL KARIM MEMON and another---Applicants

Versus

The STATE and another---Respondents

Criminal Appeal No. S-51 and Criminal Revision Application No.S-66 of 2017, decided on 24th January, 2019.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Sindh Katchi Abadis Act (II of 1987), S. 19---Illegal dispossession--- Government land---Declaration of Katchi Abadi---Scope---Complainant alleged that he was illegally dispossessed from his property, which he had acquired through registered lease deed duly issued by Katchi Abadi authorities--- Appellant claimed ownership of property on the basis of a series of judgments and decrees---Trial Court convicted the appellant---Validity---Court, in the judgment produced by appellant, had observed that survey number claimed in the suit was municipal and public property but on its own motion permitted the parties residing thereon to continue their possession---Claim of complainant was not sustainable, since there was no notification issued under S. 19 of Sindh Katchi Abadis Act, 1987---Trial Court had decided the matter in a slipshod manner without looking into the depth of property documents---Case between the parties appeared to be of civil nature---Record showed that both the parties were falsely claiming their right on the property which in fact was a municipal land---High Court allowed the appeal, set aside the judgment passed by Trial Court and acquitted appellant of the charge, in circumstances.

Ayaz Kareem Memon for Appellants (present on bail in Criminal Appeal No.S-51 of 2017).

Shahnawaz Brohi for Complainant.

Shahid Ahmed Shaikh, D.P.G. for the State along with SIP Ghulam Mustafa Laghari, Ex-SHO, Police Station Baldia, Hyderabad.

Date of hearing: 24th January, 2019.

2019 Y L R 2381

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

WARIS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-169 of 2017, decided on 20th February, 2019.

(a) Sindh Arms Act (V of 2013)---

----S. 23---Criminal Procedure Code (V of 1898), Ss. 103 & 342---Possession of unlicensed arms---Roznamcha entry---Non-production of--- Effect--- Non-association of private witnesses---Examination of accused---Scope---Accused was charged for possessing unlicensed arms---Validity---Roznamcha entry through which police party had left the police station for patrolling was not produced in evidence nor was the same referred to in the memo of arrest/ recovery and the statement of complainant---Arrival entry through which, the police party came back at police station from the place of recovery was not produced in evidence---Police party, despite advance information, did not associate private witnesses---Mere fact that the witness of recovery had no apparent reason to depose against the accused, was not sufficient to hold him trustworthy and/or he had no enmity with the accused to implicate him falsely---Trial Court had not invited the attention of accused towards the report of Ballistic Expert while recording his statement under S. 342, Cr.P.C., which was fatal to the prosecution case---Rifle recovered from the possession of accused was sent to the Ballistic Expert with inordinate delay of six days---Positive report of Expert, in circumstances, did not improve the prosecution case---High Court acquitted the accused from the charge and set aside the conviction and sentence recorded by Trial Court.

Abdul Sattar and others v. State 2002 PCr.LJ 51 and Qaddan and others v. State 2017 SCMR 148 ref.

(b) Criminal trial---

----Benefit of doubt---Where circumstances in the prosecution evidence create doubt, the benefit thereof must go to the accused.

Muhammad Nawaz and another v. State PLD 2005 SC 40 ref.

(c) Criminal trial---

----Sentence--- Harsher the sentence, stricter the standard of proof.

Muhammad Mansha v. State 2018 SCMR 772 ref.

Badal Gahoti for Appellant.

Nazar Muhammad Memon, Additional Prosecutor General for Respondent/State.

Date of hearing: 18th February, 2019.

2019 Y L R 2390

[Sindh (Sukkur Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

KHADIM HUSSAIN and 18 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Irrigation Department Sindh and 4 others---Respondents

C. P. No. D-1043 of 2018, decided on 13th June, 2018.

(a) Sindh Irrigation Act (VII of 1879)---

----Preamble---Supply of water, regulation of---Scope---Purpose and concept of heads, gates and modules are nothing but to first receipt of proper discharge and then supply thereof to whole command areas of canals---Any breach or tampering with design discharge always results in affecting rights of those to follow---Supply of water by way of construction, maintenance and regulation of canals has been made prime rather sole obligation/duty of irrigation authorities.

(b) Sindh Irrigation Act (VII of 1879)---

----S. 28---Water rotation plan---Petitioner was aggrieved of water rotation plan on plea of denial to rights guaranteed by Constitution---Validity---Application of provision of S. 28 of Sindh Irrigation Act, 1879 was visible with irrigation authorities---Such exercise (water rotation program) could be continued if circumstances so demanded---Water rotation program was not to be exercised at cost of rights of other Khatedaran---High Court directed that proper application of water rotation program should be made in advance---High Court also directed that farmers/ Zamindars should also be made aware of Part-V in Sindh Irrigation Act, 1879 with title 'of award of compensation' which could not be expected from laymen---While holding first open Katchehri, holder thereof should ensure briefing thereof and good publication of complete mechanism---Constitutional petition was disposed of accordingly.

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Province of Sindh v. Kabir Bokhari 2016 SCMR 101 and 2014 SCMR 353 ref.

Irfan Ahmed Baloch for Petitioners.

Ahmed Ali Shahani, Assistant Advocate General Sindh along with Aftab Ali Talpur, Executive Engineer and Imdad Hussain, Assistant Engineer for Respondents.

2019 Y L R 2415

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD SHAFIQUE and 3 others---Appellants

Versus

HAMID AHMED and others---Respondents

IInd Appeal No. 32 of 2012, decided on 12th February, 2019.

(a) Islamic law---

----Pre-emption suit---Talbs, performance of---Requirements---Non-appearance of pre-emptor in the witness box---Effect---Pre-emptor did not appear before the Trial Court and only his attorney was examined---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Performance of Talb-i-Muwathibat and Talb-i-Ishhad were the conditions precedent to exercise right of pre-emption---Talb-i-Muwathibat was to be performed the moment pre-emptor came to know that land had been sold and Talb-i-Ishhad would be performed after first demand in presence of witnesses---Right of pre-emption was a feeble right and making demands was oral process---Evidence in exercise of right of pre-emption being oral was required to be direct---Pre-emptor was required to establish and prove that two demands i.e. Talb-i-Muwathibat and Talb-i-Ishhad were validly performed---Pre-emptor was to mention the particulars with regard to name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of Talb-i-Ishhad in his plaint---No valid reason had been advanced as to why pre-emptor did not appear in the witness box before the Trial Court---Pre-emptor had filed the present suit in his personal capacity after performing Talb-i-Muwathibat---Non-appearance of pre-emptor in the witness box would adversely affect his right of pre-emption---Right to pre-empt was a personal right and Talb-i-Muwathibat being a personal act was to be proved by the pre-emptor through his own statement; attorney might not be a substitute of a pre-emptor---Best evidence having been withheld, adverse inference would be drawn against the pre-emptor---Attorney was not present when the alleged demands were made by the plaintiff---Plaintiff, in circumstances, had failed to prove the performance of requisite demands of pre-emption and his suit was liable to be dismissed---Findings recorded by the Appellate Court were not in consonance with the record---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Second appeal was allowed, in circumstances.

Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 rel.

Para-236 of Muhammadan Law (By D.F. Mulla) rel.

(b) Islamic law---

----Talb-i-Muwathibat---Meaning and scope.

The Talb-i-Muwathibat literally means immediate demand, that is commonly known as jumping demand; and foundation of claim of pre-emption rested on making an immediate declaration of intention to assert one's right (Talb-i-Muwathibat) and if the same is not done that would be fatal for whole claim of pre-emption and making of valid demands namely the Talb-i-Muwathibat and Talb-i-Ishhad are the condition precedent to exercise of the right of pre-emption. The first one i.e. Talb-i-Muwathibat is made the moment the pre-emptor comes to know that the land on which he/she wants to assert his/her right of pre-emption has been sold and the second demand i.e. (Talb-i-Ishhad) is made after the first demand namely Talb-i-Muwathibat, in presence of the witnesses with reference to the first one that so and so has sold or purchased, as the case may be, such and such land and that he has already made his first demand (Talb-i-Muwathibat) and he is making the second demand, asking the witnesses, to be the witness to that. The right of pre-emption is a feeble right and making of demands is oral process and the evidence in case of exercise of right of pre-emption being oral is required to be a direct as stipulated by Article 71 of Qanun-e-Shahadat Order, 1984, which envisages that "Oral evidence must, in all cases whatever, be direct;" Oral evidence is required to be confidence inspiring and supported by the witnesses to prove such case. The onus to prove lies upon the pre-emptor to establish and prove that two demands i.e. Talb-i-Muwathibat, and Talb-i-Ishhad were validly made by the pre-emptor. Pre-emptor should come forward with all the details with full particulars i.e. name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of Talb-i-Ishhad, which are required to be mentioned in the plaint, so that the pre-emptor may prove the same during the trial and so also he/she may not make any departure from the pleadings by improving his/her case during the trial.

Para-236 of Muhammadan Law (By D.F. Mulla) ref.

Suresh Kumar for Appellants.

Ishrat Ali Lohar for Respondent No.3.

Date of hearing: 2nd October, 2018.

2019 Y L R 2442

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

SAJJAN and another---Applicants

Versus

The STATE---Respondent

1st Criminal Bail Application No. S-105 of 2019, decided on 18th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 376, 511 & 506(2)--- Attempt to commit rape, criminal intimidation---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Scope---Complainant lady alleged that her father-in-law being drunk, entered into her room and attempted to commit zina with her; she also nominated her husband as accused in the FIR--- Petitioners (two in number) contended that complainant had been divorced and the allegations were found false during investigation---Parties were related to each other and had exchange marriages between them---Version of the complainant, particularly when her parents were admittedly also available in her house on that day, did not appeal to a prudent mind---Conduct of the parties showed strained relations over matrimonial affairs which gleaned that the story mentioned in the FIR was not true---First Information Report was lodged with the delay of twenty-two days and no plausible explanation had been furnished by the prosecution for such delay---Case of the petitioners called for further inquiry as envisaged under S.497(2), Cr.P.C---Ad-interim pre-arrest bail already granted to the petitioners was confirmed, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Ali Nawaz Ghanghro for Applicants along with applicants (on bail).

Shahzado Sodhar for the Complainant.

Sharafuddin Kanher, A.P.G. for the State.

2019 Y L R 2446

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

JADAL and others---Petitioners

Versus

HASSAN MUKHTIAR and others---Respondents

R.A. No. 81 of 1992, decided on 7th March, 2018.

Limitation Act (IX of 1908)---

----S. 5--- Revision--- Condonation of delay--- Principle--- Parties disputed ownership of evacuee land and same was decided in favour of plaintiff by Trial Court but Lower Appellate Court reversed findings---Plaintiff filed revision petition before High Court and sought condonation of delay---Validity---Plea of plaintiff about condonation of delay could have had substance if they had been kept in dark about proceedings but they themselves being plaintiffs in suits and respondents in appeal were unable to make out a case for condonation of delay---No material was brought on record in support of their request that delay of four months should be excused for any reason/factor beyond control of plaintiffs---High Court declined to interfere as revision was time barred---Revision was dismissed in circumstances.

Mst. Jamila Khatoon and another v. Mst. Tajunissa and others PLD 1984 SC 208; City District Government, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Government of N.W.F.-P. and others v. Abdul Malik 1994 SCMR 833 and Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 ref.

T.David Lawrence of Applicants.

A. M. Mobeen Khan for Respondents.

Nemo for Respondents Nos.9-13.

Date of hearing: 10th October, 2017.

2019 Y L R 2460

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Muhammad Karim Khan Agha, JJ

The STATE/ANTI NARCOTICS FORCE through Assistant Director---Applicant

Versus

SESSIONS JUDGE/SPECIAL JUDGE CNS COURT, HYDERABAD---Respondent

Criminal Revision Application No. D-20 of 2018, decided on 3rd September, 2018.

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

---S. 540---Examination of material witness--- Scope--- Petitioner sought examination of Incharge Malkhana and the official who took the case property to Chemical Examiner, which application was dismissed by the Trial Court---Validity---Claim of prosecution was that case property after the alleged incident was initially kept at Malkhana of the police station and then it was sent to the Chemical Examiner for its analysis, therefore, witnesses sought to be examined by the prosecution appeared to be material in order to arrive at proper decision of the case---Technicalities were to be avoided by the court while dispensing justice to arrive at right conclusion---Trial Court ought not to have dismissed the application of the prosecution under S. 540, Cr.P.C. to summon and examine its witnesses---High Court directed the Trial Court to summon and examine the said witnesses---Revision application was allowed.

Ikramullah and others v. The State 2015 SCMR 1002; Mukhtar Ali and 3 others v. The State 2000 PCr.LJ 372 and Jamatraj Kewalfi Govani v. State of Maharashtra AIR 1968 SC 178 rel.

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

----S. 540---Examination of material witness---Scope---Section 540, Cr.P.C. consists of two parts, one gives discretionary powers to the court and the other imposes an obligation on it---Said section gives wide powers to the court to examine any person as a witness at any stage of trial and imposes a duty on the court to summon any person as a witness, who otherwise could not be brought before the court.

Muhammad Ayoub Kassar, Special Prosecutor, ANF for Applicant.

Ghulamullah Chang for Respondent.

2019 Y L R 2470

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

Syed SADAM HUSSAIN---Appellant

Versus

FAISAL SHAH and others---Respondents

Criminal Acquittal Appeal No.D-16 of 2018, decided on 10th October, 2018.

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

----S. 417---Appeal against acquittal---Presumption---Double presumption of innocence was attached to the order of acquittal---Order of acquittal was not interfered until findings were perverse, arbitrary, foolish, artificial, speculative and ridiculous.

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

----Ss. 365-A, 392, 511, 504(2) & 34---Criminal Procedure Code (V of 1898), S. 417---Kidnapping for ransom, robbery, attempt to commit offence punishable with imprisonment for life or a shorter term, intentional insult with intent to provoke breach of peace, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the abductee for ransom---Trial Court, after hearing the parties and assessing the evidence available on record acquitted the accused---Validity---Record showed that the abductee was twenty four years of age however, when he managed to escape, he waited for four days to register FIR, which delay remained unexplained---As per record, there was dispute and enmity between the parties---Chance of being a false case could not be ruled out---Record transpired that witnesses made dishonest improvements in their initial statements by making supplementary statements a month after the event---Evidence of said witnesses could not be relied on---Witnesses were closely related being father and son and there were major contradictions in their evidence, which could not be relied upon---Father/witness could not prove as to how he obtained the ransom money which was not paid---Abductee, somehow, managed to escape despite being tightly bound---Abductee was allegedly kept in a room with some women but he did not mention that fact in his statement and even the landlord who lived in the lower part of the house was not aware of his presence---No Call Data Record records were produced to link the ransom calls to any of the accused or mobile phones---Tape evidence was not mentioned by the father in his statement recorded under S.161, Cr.P.C.---Prosecution evidence was not found to be either reliable, trust worthy or confidence inspiring---Appeal against acquittal was dismissed accordingly.

Mohammed Mansha v. State 2018 SCMR 772; Basharat Ali v Muhammed Safdar 2017 SCMR 1601 and Haq Nawaz v. State 2018 SCMR 95 rel.

Kashif Ali Lakho for Appellant.

Nemo for Respondents Nos. 1 to 3.

Syed Meeral Shah Bukhari, Additional Prosecutor General for Respondent No.4.

Date of hearing: 10th October, 2018.

2019 Y L R 2500

[Sindh]

Before Muhammad Shafi Siddiqui, J

CAPRI AUTOS, NMOTORCYCLE DEALERS---Petitioner

Versus

Dr. MASUMA HASAN and others---Respondents

C. P. No. S-922 of 2012, decided on 23rd April, 2018.

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

----Ss. 15 & 18---Eviction petition---Default in payment of rent---Denial of relationship of landlord and tenant---Deposit of rent in court---Notice of change in ownership, service of---Scope---Landlord while claiming default in payment of rent asserted that the tenant was inducted in the premises by previous tenant and that he was a trespasser---Tenant asserted that he came to know about the change of ownership of premises through public notice; that he offered the rent personally which the landlord's attorney refused to receive; that the rent was then tendered through money order which too was refused and that the rent was being deposited in court---Validity---Eviction petition was not maintainable against a trespasser or an illegal occupant---Landlady admitted that no notice regarding change in ownership was ever served upon the tenant however, claimed that two notices requiring vacation of premises were sent---Landlady had been quiet until filing of eviction application and had never attempted to inform the tenant regarding change of ownership---Notices were not proved to be served upon the tenant---Tenant, soon after acquiring knowledge of publication of notice, had offered the rent and on its refusal and denial, deposited the same in miscel-laneous rent case, which deposit was within a reasonable period of acquiring knowledge of the change of ownership---Default, as claimed by landlady, was an engineered one---Eviction application was dismissed, in circumstances.

Hirjibhai Behrana Dar-e-Mehar v. Messrs Bombay Steel Works 2001 SCMR 1888 rel.

Shaikh Muhammad Wasim for Petitioner.

Shahan Karimi for Respondents.

2019 Y L R 2530

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

GHULAM SARWAR---Appelant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-47 of 2011, decided on 5th September, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of complainant's daughter---Motive of the occurrence was that the accused wanted friendship with the deceased and on refusal he committed her murder---Prosecution produced three witnesses including complainant to prove the ocular account---Complainant deposed that accused used to tease females of his family, whereupon, he along with his family members and daughters shifted to other village---Accused did not refrain from teasing the girls even in other village---Complainant had deposed that on the day of occurrence accused came across and asked the deceased that she had refused friendship with him and he would not spare her, on that, deceased harshly replied the accused, whereupon accused fired a shot from a T.T. pistol which hit at the abdomen of deceased, she fell down---Deceased was shifted to hospital, where she was provided first aid and was refereed to other hospital for better treatment, but she died on the way---Witness had stated that the accused had fired upon his daughter from a distance of about two paces---Complainant was supported by two eye-witnesses---All the said witnesses were cross-examined by the defence at length---Witnesses remained consistent on material points---Said witnesses could not be termed to be chance witnesses---Evidence of natural witnesses carried worth and their presence at the spot in support of their claim to have witnessed the incident was not disputed---Eye-witnesses had sufficiently explained the date, time and place as well as each and every event of the occurrence in clear-cut manner---Parties were known to each other as evident from their evidence and it was a day time incident, so there was no chance of mistaken identity of the accused---No substance had been brought on record by the accused to justify his false implication in the case---Defence objected that prosecution had produced interested witnesses being relative of deceased---Mere relationship of said eye-witnesses with the deceased was not enough to discard the testimony of complainant and his witnesses---Direct evidence found corroboration from the medical evidence with regard to cause of death, time of the incident and weapon used in the commission of offence---Duration between death and post-mortem was five hours---Medical Officer had confirmed the version of the complainant---Circumstances established that the act of the accused was gruesome and merciless---Deceased, a young woman aged about thirty years having four children, was deprived of her life only on the ground that she refused friendship with the accused---Appeal was dismissed, in circumstances.

Ghulam Abbas v. The State 2002 PCr.LJ 1240; Pervaiz Masih v. The State 2005 PCr.LJ 1232; Muhammad Yakoob v. The State 2005 YLR 3147 and Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82 ref.

Lal Khan v. State 2006 SCMR 1846; Farooq Khan v. The State 2008 SCMR 917; Zulfiqar Ahmed and another v. State 2011 SCMR 492; Zahoor Ahmed v. The State 2007 SCMR 1519 and Zahoor Ahmed v. The State 2017 SCMR 1662 rel.

(b) Criminal trial---

----Witness--- Interested witness, statement of---Scope---Interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate the accused.

(c) Criminal trial---

----Discrepancies in the statement of witnesses---Effect---Such discrepancies were not enough to demolish the case of prosecution because these always occurred on account of lapse of time, which could be ignored

(d) Criminal trial---

----Eye-witnesses, statement of---Contradictions---Effect---Statements of the witnesses had to be read as a whole---Court was not to pick up a sentence in isolation from the entire statement and ignore its proper reference---Contradictions is statements of witnesses must be material and substantial so as to adversely affect the case of prosecution.

Mehfooz Ahmed Awan for Appellant.

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

2019 Y L R 2544

[Sindh]

Before Salahuddin Panhwar, J

Mst. FOUZIA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 224 of 2019, decided on 19th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 51---Possession of two kilograms of Charas---Bail, grant of---Accused, a lady with two minors---Effect---Crime against society---Scope---Such charge/allegation alone was not sufficient to keep one behind the bars for an indefinite period---Existence of reasonable grounds must be shown to believe prima facie linkage of accused with the charged offence---Bar provided by S. 51 of Control of Narcotic Substances Act, 1997 could not operate as decisive for petition for bail---Bail pleas were to be granted or rejected in tentative examination of available material and not on the basis of charged offence---First Information Report had not mentioned the shape of alleged recovered Charas nor the thing in which the same was wrapped---Such aspects prima facie would require explanations from prosecution---Law had provided some privileges to female accused under S. 497(1), Cr.P.C., which alone was not sufficient for releasing the lady on bail but could well be taken as a favouring circumstances---Court was guardian of minors, and their welfare was to be kept in view in all circumstances---Two minors with the petitioner were not shown to have any other refuge, except the petitioner---Prosecution had not claimed any apprehension of absconsion of petitioner during trial, if released on bail---Petitioner was admitted to bail, in circumstances.

Zaigham Ashraf v. State and others 2016 SCMR 18 and Javed v. State 2017 SCMR 531 ref.

Ahmed Khan Baloch and Asif Mastoi for Applicant.

Faheem Hussain Panhwar, Deputy P.G. Sindh for the State.

2019 Y L R 2561

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Messrs UNIVERSAL BROTHERS (PVT.) LTD. through Duly Authorized Officer and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Religious Affairs and Interfaith Harmony Pakistan Secretariat, Islamabad and 2 others---Respondents

Constitution Petition No. D-4479 of 2018, decided on 12th February, 2019.

Constitution of Pakistan---

----Art. 199---Private Hajj group operator---Hajj quota, reduction in---Relegation from Category "A" to Category "D", for allotment of Hajj quota---Petitioner, being a private Hajj group operator, assailed the decision of the Ministry of Religious Affairs ('the Ministry') relegating the petitioner from Category "A" to Category "D", for allotment of hajj quota, and as a consequence significantly reducing the number of pilgrims that the petitioner was permitted to entertain---Held, that the petitioner had carried the maximum number of pilgrims permissible in the top Category 'A' from 2009 till 2017---Further the petitioner was also entitled to the maximum number of marks as per the assessment criteria set-forth by the Ministry for private hajj group operators---Said criteria in place stipulated that the load of pilgrims carried during last six (06) hajj operations was to be considered and upon the said criteria the petitioner would remain entitled to the award of Category "A"---Impugned letter whereby petitioner's quota of pilgrims was reduced unilaterally marginalized the categorization of the petitioner, and did not give any cogent reasoning for doing so--- Marginalization of the category awarded to the petitioner and the diminution of its pilgrim's quota was unmerited and unjustified--- Constitutional petition was allowed and impugned letter was set aside.

Barrister Abid Shahid Zuberi and Barrister Ayan Mustafa Memon for Petitioners.

Zahid Fakhrudin Ebrahim, Additional Attorney General for Respondents.

Syed Imtiaz Ali Shah, Deputy Director, Hajj, Ministry of Religious Affairs.

Rashid Ahmed Malik, Deputy Assistant Director, Ministry of Religious Affairs.

2019 Y L R 2593

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Muhammad Karim Khan Agha, JJ

GHULAM ALI and 3 others---Petitioners

Versus

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

C.P. No. D-2869 of 2017, decided on 16th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Alternate remedy--- Scope--- Petitioners sought quashing of FIR on the ground that the complainant had longstanding enmity with them therefore, false implication could not be ruled out---Validity---FIR had already been registered against the petitioners and investigation was in progress---High Court declined any finding on merit of the case and observed that legal and factual issues raised in the petition could be taken by petitioners before Investigating Officer and if challan was submitted, the Trial Court had the power to discharge petitioners---Petitioners had adequate and alternate remedy available to them under the law---Constitutional petition was not maintainable and the same was dismissed.

Khawaja Nazir Ahmed's case AIR 1945 PC 18 and Nasreen Bibi v. Farrukh Shahzad and others (Criminal Appeal No.280 of 2013) rel.

Tarique Ali Mirjat for Petitioners.

Irfan Ahmed Qureshi for Respondent No.3.

Muhammad Ismail Bhutto, A.A.G and Shahzado Saleem Nahiyoon, D.P.G for the State.

2019 Y L R 2609

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Mirza NASEEM BAIG ---Plaintiff

Versus

K.E.S.C. EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. and others ---Defendants

Suit No. 1408 of 2016, decided on 1st April, 2019.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Suit for declaration could be filed within six years. (b) Specific Relief Act (I of 1877)--

----S. 39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of instrument--- Limitation--- Suit for cancellation of instrument could be filed within three years.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 ref.

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

---O.XII, R.6---Judgment on admission---Pleadings though do not themselves have evidentiary value, unless the Plaintiff and or Defendant, as the case may be, enter the witness box and lead the evidence in support or defence of their pleadings; but, an exception to such rule is, that pleadings or a Written Statement can be considered when there is an admission on the part of Defendant; because, depending upon the facts of each case, even on the basis of Written Statement a Judgment as envisaged under R. 6 of O. XII of C.P.C., can be pronounced.

Farooq Akhtar Shaikh for Plaintiff.

Nemo for Defendant No. 1.

Sohail Rana for Defendant No. 2.

Sharyar Qazi, Additional Advocate General for Defendants Nos.3 to 6 and Shabir Shaikh, Law Officer, Board of Revenue.

Nemo for Defendants Nos.7 to 10.

2019 Y L R 2623

[Sindh]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

SHEHARYAR WAQAS MALIK and another---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary, Karachi

and 15 others---Respondents

Constitutional Petitions Nos.D-4560 and D-3898 of 2017, decided on 20th March, 2019.

(a) Sindh Land Revenue Act (XVII of 1967)---

----S. 164(3)---Land acquisition and claim of compensation---Scope---Matter of land acquisition and claim of compensation does not fall within ambit of S. 164(3) of Sindh Land Revenue Act, 1967.

(b) Constitution of Pakistan---

----Arts. 10-A & 24---Constitutional petition---Property rights---Due process of law---Natural justice, principles of---Forcible dispossession---Petitioners claimed to be owner of subject land and were aggrieved of orders passed by authorities whereby they were forcibly dispossessed from subject land---Validity---Adverse action was taken by authorities against petitioners without affording opportunity of hearing to them---Petitioners were not only entitled to get back possession of property in question but were also deserved to be permitted to again raise construction of demolished boundary wall at subject land---Action of dispossession of petitioners by authorities and demolishing boundary wall raised by them was not only illegal but was taken at instigation of respondents---Order passed by authorities was without justification, mala fide and void ab initio---Stand of respondent regarding ownership and/or location of survey number where subject land was situated was not only self-conflicting but also self-destructive---Such stand led to a presumption that respondent had no genuine case---High Court in exercise of Constitutional jurisdiction set aside orders passed by authorities and declared that all such actions taken/orders passed by authorities pursuant to such orders were mala fide, illegal without jurisdiction and of no legal effect---High Court directed the authorities to give peaceful possession of subject land to petitioners---Constitutional petition was allowed accordingly.

Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 ref.

Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Limited and 5 others 2006 CLC 342 rel.

(c) Constitution of Pakistan---

----Art. 24---Transfer of Property Act (IV of 1882), S. 54---Registration Act (XVI of 1908), S. 17---Property rights---Registered sale deed---Cancellation---Sale is transfer of ownership of immovable property for price paid or promised---Once a document is registered then it can only be cancelled by another registered document or through a declaration of competent court of law---One cannot be deprived of its ownership rights in respect of land lawfully owned and/or holding of its lawful possession except in due course of law.

The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 and Mrs. Zaibun Nisa through Attorney v. Karachi Development Autho-rity and 5 others PLD 1998 Kar. 348 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Constitutional jurisdiction is not an appropriate forum, for resolution of factual controversy, as it is intended for providing an expeditious remedy where action of an executive can easily be established without recording of evidence---Constitutional jurisdiction is meant for enforcing of a vested right and not for establishing such right being based upon/involving factual controversy.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 rel.

Salahuddin Ahmed along with Salman Mirza and Muhammad Rizwan for Petitioners (in Constitutional Petition No.D-4560 of 2017).

Ms. Shamim Imran, Internee of A.G. Sindh for Respondent No.1

(in Constitutional Petition No.D-4560 of 2017).

Sartaj Malgani along with Rao Sarfaraz Ahmed for Respondent No. 8 (in Constitutional Petition No.D-4560 of 2017).

Umsan Tufail Shaikh and Khurram Ghayas along with Jameel Ahmed Baloch, Additional Director and Asif Ali Memon, Director Land Management and Estate, K.D.A. for Respondent No.10 (in Constitutional Petition No.D-4560 of 2017).

Khaleeq Ahmed for Respondent No.13 (in Constitutional Petition No.D-4560 of 2017).

Fayyaz Ahmed for Respondent No.15 (in Constitutional Petition

No.D-4560 of 2017).

Fayyaz Ahmed for Petitioner (in Constitutional Petition No.D-3898 of 2017).

Ms. Shamim Imran, Internee of A.G. Sindh for Respondent No. 1.

(in Constitutional Petition No.D-3898 of 2017).

Usman Tufail Shaikh and Khurram Ghayas along with Jameel Ahmed Baloch Additional Director and Asif Ali Memon, Director Land Management and Estate, K.D.A. for Respondent No.2 (in Constitutional Petition No.D-3898 of 2017).

Sartaj Malgani along with Rao Sarfaraz Ahmed for Respondent No.7

(in Constitutional Petition No.D-3898 of 2017).

Khaleeq Ahmed for Respondent No.8 (in Constitutional Petition No.D-3898 of 2017).

2019 Y L R 2682

[Sindh]

Before Syed Hassan Azhar Rizvi and Zulfiqar Ahmad Khan, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Secretary and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department Board of Revenue and others---Respondents

Constitutional Petitions Nos. D-306 of 2011 and D-3606 of 2010, decided on 31st October, 2018.

Sindh Government Lands (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2000)---

----S. 3---Colonization of Government Lands (Sindh) Act (V of 1912), Ss. 10 & 24---Sindh Government Notification No. 868/71/4083-PI dated 22-06-1971, Conditions. 8, 9, 11 & 21---Cancellation of allotment---Non-deposit of lease amount--- Effect--- Petitioner was a Housing Authority and was aggrieved of cancellation of allotment of land made in its favour---Validity---Allotment was made on 14-09-1977 at rate of Rs. 10 per square yard---As per requirements of Notification No. 868/71/4083-PI dated 22.06.1971, initial payment of 25% was never made but only a token payment was made and that too on 01-01-1978---Agreement for lease was entered on 06.12.1979 however, requirement that 50% of land price should have been paid prior thereto was also not complied with---All such inconsistencies led transaction in question to unfortunate end envisaged by Condition 21 of Notification No. 868/71/4083-PI dated 22-06-1971 resulting in resumption of land under S. 24 of Colonization of Government Lands Act, 1912 without payment of any compensation whatsoever---No land could be considered as an exchange or alternative land and provisions of Sindh Government Lands (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 were also applicable---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Globe, Textile Mills Ltd. v. TC 1993 SCMR 900; Lal Khan v. Muhammad Yousuf PLD 2011 SC 657; C.B.R. v. SevenUp Bottlers 1996 SCMR 700; PLD 1996 SC 738; 1991 CLC 694 and 1980 CLC 664 ref.

XEN Shalpur Division v. Collector 2016 SCMR 1030; Wali Muhammad v. Muhammad Rafiq and others 2003 CLC 718 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 480 distinguished.

Khalid Javed Khan for Petitioner (in C. P. No. D-306 of 2011).

Muhammad Ishaq Ali for Petitioners (in C. P. No. D-3606 of 2010)

Jawad Dero for Additional Advocate General along with Jaam Habibullah, State Counsel for Respondents (in C.P No.D-306 of 2011).

2019 Y L R 2703

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MUMTAZ AHMED QURESHI---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Karachi and 8 others--Respondents

Constitutional Petitions Nos. D-2940 and D-1137 of 2015, decided on 6th September, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Show-cause notice---Compliance of order---During pendency of proceedings under constitutional petition, High Court issued show-cause notices to respondent authorities--- Validity--- Authorities informed the High Court that Federal Government had launched a policy for insurance in city in question---High Court directed Provincial Government to pursue policy and to provide mechanism in whole of the province---High Court further directed the authorities to issue notice to Deputy Attorney-General and Federal Government for submission of policy and there criterion along with correspondence with Provincial Government--- Show-cause notice was recalled in circumstances.

Mst. Rukhsana Mehdi v. Waryam and others PLD 2006 SC 189 ref.

Sarfraz Abbasi for Petitioner along with Petitioner (in C.P. No.D-1137 of 2015).

Asif Hussain Chandio for Respondents Nos. 2 and 3 (in C.P. No. D-1137 of 2015).

Petitioner present in person (in C.P. No. D-1137 of 2015).

Allah Bachayo Soomro, Addl. A.G. for Respondents.

2019 Y L R 2713

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

ALI SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-264 of 2010, decided on 21st January, 2019.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Examination of accused---Scope---Accused was charged for committing murder of two persons---Trial Court while convicting and sentencing the accused to suffer life imprisonment did not specifically elaborate whether the sentence awarded to him was on each count---Statement of accused recorded under S. 342, Cr.P.C. was patently stereotype, wherein few routine questions were put to the accused but material pieces of incriminating evidence were not put to him by the Trial Court---Conviction and sentence awarded to the accused was not sustainable, in circumstances---Appeal was allowed; conviction and sentence awarded to accused was set aside and the case was remanded to the Trial Court for recording statement of accused under S. 342, Cr.P.C. afresh.

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

----Ss. 342 & 537---Examination of accused---Purpose---Finding or sentence when reversible by reason of error or omission in charge or other proceedings---Purpose of recording statement of accused in terms of S. 342, Cr.P.C. is to inform the accused about the prosecution case, so that he may also be able to explain the circumstances created in the evidence against him and also for the purpose of preparing his defence, which is the right of the accused as per law---Each and every material incriminating piece of evidence being relied upon by the prosecution against the accused must be put to the accused at the time of recording his statement---Failure to comply with such mandatory requirement of law, being incurable under the provisions of S. 537, Cr.P.C. would vitiate the conviction and sentence awarded to the accused---Incriminating piece of evidence not put to the accused at the time of recording statement under S. 342, Cr.P.C. cannot be used as piece of evidence against him.

Imtiaz alias Taj v. The State and others 2018 SCMR 344; Qadan v. The State 2017 SCMR 184; Muhammad Nawaz v. The State 2016 SCMR 267; Muhammad Shah v. The State 2010 SCMR 1009; Munawar Hussain alias Asghar Ali v. The State 1991 SCMR 1601; Nadir Khan v. The State 2001 MLD 1873; Ashique Ali v. The State 2005 PCr.LJ 48; Nazir Ahmed and others v. The State PLD 2005 Kar. 18 and Muhammad Ayoub v. The State 2006 PCr.LJ 257 ref.

Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68 rel.

Muhammad Jaffar Raza, Bashir Ahmed Almani and Abdul Rauf Arain for Appellant.

Nazar Muhammad Memon for Respondent.

2019 Y L R 2765

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Mst. ADEEBA BEGUM through Authorized Attorney---Petitioner

Versus

TRAVEL CORPORATION (PVT.) LTD. through MD and Chief Executive

and another---Respondents

C.P. No. S-1144 of 2014, decided on 17th July, 2018.

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

----Ss. 8 & 9---Fair rent, fixation of---Requirements---Rent Controller fixed fair rent @ Rs. 30,000/- per month of demised premises but same was reduced to Rs. 20,000/- per month by the Appellate Court---Validity---Tenancy agreements produced by the landlady were with regard to different premises and same did not contain area/ measurement of the same---Said tenancies could not be relied upon for determining fair rent of demised premises---No documentary evidence had been produced to assess fair rent of demised premises---Cost of construction had raised to manifold and property tax had also enhanced which could be considered for fixing the fair rent of rented premises---Demised premises was situated in the heart of city and business area---Tenant was paying monthly rent to the landlady by enhancing time to time even after institution of present petition---Appellate Court had passed impugned order after consideration of all the relevant facts of the case which was justified and lawful on account of prevailing circumstances---Constitutional petition was dismissed, in circumstances.

2010 SCMR 1582 distinguished.

Mukhtaral Omar v. Messrs State Life Insurance Corporation of Pakistan and 2 others 2009 YLR 204; Abdul Rahman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954 and Altaf Hussain v. Arifa Farooqui and 7 others PLD 2013 Lah. 95 rel.

(b) Evidence---

----Photocopy of a document was inadmissible in evidence.

Aminuddin Ansari for Petitioner.

Naveed Ahmed Khan for Respondent No. 1.

2019 Y L R 2778

[Sindh]

Before Fahim Ahmed Siddiqui, J

Syed TAJUDDIN---Plaintiff

Versus

Messrs CITY DEVELOPERS through Chief Executive---Defendant

C.M.A. No.8570 of 2011 in Suit No. 1964 of 2010, decided on 21st February, 2019.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract having been disposed of in terms of undertaking given by the defendants---Subsequent suit---Plaint, rejection of---Plaintiff had raised new and different cause of action in the fresh case---Defendant had not fulfilled his obligation as per his undertaking given in the earlier suit---Parties were at variance as compared to earlier litigation and such divergent questions could only be settled after framing of issues and examining of witnesses---Petition for rejection of plaint was dismissed in circumstances.

1993 MLD 2138; 2006 MLD 187 and 2011 CLD 523 ref.

(b) Words and phrases---

----"Compensation" and "damages"---Distinction.

'Compensation' and 'damages' are two distinct things and the same should not be commingled. Compensation is a word, which is merely used to express the award of monitory benefit to offset for an imponderable and intangible thing like mental agony and torture. On the other hand, 'damages' are an allowance for the injury caused by a wrongdoer. Compensation is amends for something which was taken without the owner's choice while damages are in respect of harm caused by a transgressor or malefactor. In a suit, it is not necessary, for the plaintiff to make a specific prayer for compensation, as the same comes under the discretion of court and the court may award compensation even without a prayer.

Muhammad Ilyas Tanoli for Plaintiff.

Rafiq Kalwar for Defendant.

2019 Y L R 2788

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-34 of 2015, decided on 24th January, 2019.

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

----S. 337-G---Hurt by rash or negligent driving---Appreciation of evidence---Benefit of doubt---Prosecution case against accused, a van driver, was that he rashly drove the van into a tractor trolley---Trial Court convicted the accused person---Validity---Trial Court failed to frame the charge in accordance with the contents of FIR as well as the manner in which the incident occurred--- No one had reported that van was being driven rashly when it hit the tractor trolley, which was standing in the middle of the highway---Question as to whether the van was travelling within speed limit was not brought on record---Trial Court failed to consider whether driver of tractor trolley took precaution to sideline it away from the main road; whether trolley was laden extraordinarily; whether its driver had valid license or not and that had the trolley not been parked on the road the incident would not have taken place---Driver of trolley was put in Column No. 2 and was let off without any deposition---Driver of trolley had neither produced his original license nor original papers/documents of tractor trolley before Trial Court---Prosecution was obligated to prove its case beyond reasonable doubt against the accused---Prosecution failed to prove its case against the accused beyond reasonable doubt---High Court, while extending benefit of doubt, acquitted the accused from the charge, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

(b) Criminal trial---

----Benefit of doubt---Even a single doubt and not a combination of several doubts if found reasonable, would entitle the accused person to acquittal.

Hashim Qasim v. State (Criminal Appeals Nos.115 and 116 of 2013) and Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 ref.

Razaque Rahim Shaikh for Appellant.

Shahid Ahmed Shaikh, Deputy Prosecutor General for the State.

2019 Y L R 2807

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

IMTIAZ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-43 of 2016, decided on 11th February, 2019.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, illegal gratification---Appreciation of evidence---Delay of about eight years in lodging the FIR---Effect---Prosecution case was that the accused had embezzled/ misappropriated 4421 bags and 32 Kilograms of wheat and the total value of the missing wheat was Rs. 41,07,34/- ---Record showed that the incident pertained to the year 2001; however, the FIR was registered after eight years---No explanation for such long and inordinate delay by the prosecution was furnished---Un-explained delay in lodging of FIR had tarnished the authenticity of the FIR.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, illegal gratification---Appreciation of evidence---Prosecution case was that the accused had embezzled/ misappropriated 4421 bags and 32 Kilograms of wheat the total value of the missing wheat was Rs. 41,07,34/----Prosecution witness in his cross-examination had stated that the shortage of wheat might be due to natural decay---Statement of the witness had shown that wheat stock was stored in the year 1999-2000 and was disposed of in the years 2003 and 2004, and the stock was lying open as well as in godowns which were damaged; it became quite doubtful whether there was any misappropriation of the wheat by the accused-appellant or there was loss of wheat due to natural decay---Wheat was a perishable commodity having a longer life span than the other such items like vegetables and fruits---Accused-appellant had examined himself on oath and stated in his examination-in-chief that the stock was shifted after four years, therefore, shortage occurred---Witness had stated that he had been intimating his superiors about the shortage of wheat from time to time but no action was taken---Witness had stated that an inquiry had been conducted with regard to shortage of wheat---Investigating Officer had not collected the said inquiry report during investigation---Investigating Officer had stated that he did not know whether the stock was kept for four years and that wheat stock if kept for such long period would lose its weight---If the Investigating Officer did not know such facts investigation was not proper---Such facts showed that the Investigating Officer had completely followed the direction given to him by the complainant and had not performed his duty honestly and fairly---Accused/appellant during cross-examination was not confronted with any document to disprove his assertions nor was any suggestion made to him that no inquiry was conducted or that no responsibility was fixed with regard to loss of wheat---Allegation against the accused-appellant was that he misappropriated 422 metric tons of wheat or 4221 bags of wheat---Undeniable fact that such a huge quantity of wheat could not be moved by a single person from one place to another---Circumstances suggested that it was quite reasonable to presume that if such a huge quantity of wheat was embezzled then a number of persons would be involved---Not a single person other than the accused-appellant had been shown as the accused---Nothing had been brought on record to show that in what manner the misappropriation was made---Circumstances established that the impugned judgment suffered from contradictions and flaws and was not sustainable in the eye of law---Appeal was allowed and accused was acquitted, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Appellant in person.

Sharafuddin Kaanhar, A.P.G. for the State.

2019 Y L R 2846

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

ZAHID HUSSAIN---Petitioner

Versus

SALEEM YOUSUF and others---Respondents

C. Ps. Nos. S-1486 to S-1488 of 2015, decided on 20th June, 2018.

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

----Ss.16, 15 & 10---Eviction of tenant---Non-compliance of tentative rent order---Default in payment of future monthly rent---Scope---Rent Controller, on the application of petitioner/landlord, passed tentative rent order for payment of arrears of rent as well for next (coming ) three months and subsequently struck off defence of tenant (respondent ) for non-compliance of deposit of three months in advance---Appellate Court set aside the order passed by Rent Controller and remanded the matter to the Trial Court to decide the same on merit---Petitioner/ landlord contended that order to deposit the future rent in advance could not be condoned---Respondent/tenant contended that tentative rent order did not specify whether future rent was required to be deposited in advance or after becoming due on expiry of the month---Validity---Points for consideration which remained to be resolved were, whether the tentative rent order were properly interpreted/ understood by the Rent Controller and the Appellate Court, keeping in view the language of Ss.10, 15(2) & 16(1)(2) of the Sindh Rented Premises Ordinance, 1979 and whether the date on which the future monthly rent deposited were in time or not---Said tentative rent order reflected that directions were given to the tenant/respondent for payment of future monthly rent on or before the 10th of each calendar month next following, when in terms of S. 10 or 15(2) the rent for the previous month would become due---Provision of S. 16(1) of the Ordinance did not permit the Rent Controller to pass order for advance payment of rent for current months ---If the Rent Controller had taken reasonable care at the time of passing the orders under S.16(1) of the Sindh Rented Premises Ordinance, 1979, he could have clarified said legal position in his orders regarding payment of future/ current monthly rent by incorporating the words "next month'' "coming month" "subsequent month" or "succeeding month", while forming such view---Rent Controller, in the present case, proceeded a misinterpretation of the rent order under misconception of law that the rent for alleged three months of default was payable in advance by the 10th of each calendar month, though in accordance with law to avoid commission of default, rent for the each said month was payable by the 10th of next (succeeding) month, when it would have become due---In the present case, as per report of Nazir/C.O.C the respondent had deposited the future rent for disputed period, which was well within time in view of the scale of law---By no stretch of imagination, the respondent could be held defaulter in the compliance of tentative rent order as alleged by the appellant/petitioner---No illegality or infirmity having been noticed in the impugned orders passed by the Appellate Court, constitutional petitions were dismissed accordingly.

Ibrahim Trust Karachi v. Shaheen Freight Services PLD 2001 SC 331 ref.

Muhammad Riaz for Petitioner.

Iftikhar Javed Qazi for Respondent No.1.

2019 Y L R 2855

[Sindh (Sukkur Branch)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

SHAHABUDDIN and others---Petitioners

Versus

FEDERATION OF PAKISTAN, through Secretary Law and 3 others---Respondents

C.Ps. Nos. D-155, D-2046, D-2177, D-2253, D-2256, D-2257, D-2259, D-2274 and D-2415 of 2017, decided on 29th November, 2018.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail---Prima facie case---Misuse of authority and causing loss---Petitioners were holders of public office and contractors who were jointly accused of misuse of authority, causing loss to national exchequer for a sum of Rs. 212.532 million and sought bail before arrest---Validity---Illegal and unlawful payments were made to contractors by petitioners who were officials of Town Municipal Administration by misusing their official capacity---Prima facie, officials of Town Municipal Administration were involved in misappropriation of government funds which were lawfully entrusted to them---Town Municipal Administration failed to exercise their authority and rendered undue benefits/favours to contractors to withdraw government funds for which accused contractors were not lawfully entitled and caused loss to government exchequer and gains acquired were amounting to twenty-one crore twenty-five lac thirty-two thousand eight hundred five rupees---Prima facie, there was sufficient material on record to connect accused persons with offence and they failed to make out case for grant of pre-arrest bail---Petitioners could not point out any mala fide on part of National Accountability Bureau authorities or investigating officer---Pre-arrest bail was dismissed in circumstances.

Muhammad Khan v. NAB through Chairman and others 2017 SCMR 1152; Asif Ayoub v. The State 2010 SCMR 1735; Hamood-ur-Rehman v. Chairman NAB Islamabad 2016 PCr.LJ 934 and Kamran Saeed v. Chairman NAB and others 2017 PCr.LJ 340 ref.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail---Return of liability---Petitioner was accused of causing loss to national exchequer and sought bail before arrest---Validity---Petitioner had voluntarily returned/ deposited his individual liability amounting to Rs. 14,65,627/- in favour of Chairman National Accountability Bureau and such report filed before Director-General National Accountability Bureau was approved which was pending before Accountability Court---Pre-arrest bail was granted to the petitioner in circumstances.

Nisar Ahmed Bhanbhro for Petitioner (in C.P. No.D-155 of 2017).

Shakeel Ahmed Abro for Petitioners (in C.P. No. D-2046 of 2017).

Irfan Ahmed Panhwar for Petitioner (in C. P. No. D-2177 of 2017).

Ali Nawaz /Ghanghro for Petitioner (in C. P. No. D-2253 of 2017).

Qurban Ali Malano for Petitioner (in C.P. No. D-2256 of 2017).

Zulfiquar Ali Sangi for Petitioner (in C. P. No. D- 2257 of 2017).

Shahid Ali K. Memon for Petitioner (in C.P. No. D-2259 of 2017).

A.R. Faruq Pirzada for Petitioner (in C.P. No. D-2274 of 2017).

Nisar Ahmed Bhanbhro for Petitioner (in C.P. No. D-2415 of 2017).

Muhammad Zubair Malik, and Ubedullah Abro, Special Prosecutor NAB Sukkur.

Oshaque Ali Sangi, Assistant Attorney General.

2019 Y L R 2872

[Sindh]

Before Mohammed Karim Khan Agha and Omar Sial, JJ

ROSHAN ALI LAKHANI---Petitioner

Versus

SAEED ULLAH SHAH and 51 others---Respondents

Constitutional Petition No. 5841 of 2018, decided on 27th May, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 18---Reference to NAB---Public project---Utilization of funds---Dispute was with regard to completion of public projects for which funds had already been allocated---Validity---Prima facie there was a misuse of authority/ failure to exercise authority by concerned officials in dealing with E&P funds which led to embezzlement/ misappropriation / misuse / unauthorized use of funds provided to a number of districts by E&P companies and in particular, Karachi where loss to district was caused and/or other offences falling within purview of S. 9 of National Accountability Ordinance, 1999 could have been committed---High Court directed to send copy of Auditor-General of Pakistan's Special Audit Report on Collection and Utilization of Social Welfare Obligation, Production Bonus and Marine Research Fee for year 2012-2018 to Chairman NAB---High Court directed that Chairman NAB was to open an inquiry into such potential wrongdoings under National Accountability Ordinance, 1999 and proceed against concerned persons; to submit a Joint Compliance Report to ensure more efficient and effective accounting of funds provided by E&P companies to districts in Sindh; PAO to devise an accounting framework in consultation with Auditor-General of Pakistan to bring SWO, PB and MRF funds into government accounts; Director-General (PC) and Sindh Government to make coordinated efforts for efficient and effective implementation of guidelines through an improved mechanism of monitoring and for utilization of funds received on account of Social Welfare Obligations, Production Bonus and Marine Research Fee; Petroleum Division to make CMS fully operational to be able to generate data regarding due amounts of obligations versus actual payments; Government of Sindh to ensure transparent utilization of funds in line with guidelines and Development Procurement Rules by carrying out Orientation Workshops for relevant District Management Staff regarding different funds and their utilization as per guidelines; Transfer of funds by E&P companies to Ministry of Energy (Petroleum Division) being focal division, same were to be transferred to respective province's public account for onward distribution among districts and mechanism needed to be developed to ensure that E&P companies would also pay their obligations promptly and comply with guidelines of Government.

Wahab Baloch for Petitioner.

Salman Talibuddin, Advocate-General Sindh, Zahid Ibrahim, Additional Advocate General, Muhammad Ahmed, Assistant Attorney General, Ghulam Mustafa Mahesar, Additional Advocate General and Kamran Ali Hashmi, Auditor General for Respondents.

Shahab Sarki for Respondent No.27.

Basil Nabi Malik for Respondents Nos.27 and 29.

Syed Ijaz Ali Shah, Legal Advisor DGPC Petroleum Division, Islamabad (Respondent No.1).

2019 Y L R 2902

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

DEEDAR ALI and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 207, 216, 217 and 242 of 2018, decided on 30th April, 2019.

Penal Code (XLV of 1860)---

----Ss. 384, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(h)---Extortion of money (bhatta) or property---Extortion by putting person in fear of death or grevious hurt, common intention---Appreciation of evidence---Reduction in sentence---Mitigating circumstances---Scope---Accused persons were alleged to have snatched the vehicle of complainant and demanded extortion money for its return---Accused persons did not press their appeals on merits and prayed for reduction in their sentence---Accused was arrested in presence of complainant when he came forward to receive extortion---Accused, after his arrest, had disclosed the names of co-accused and they were also arrested during investigation---Mashirs of the arrest as well as complainant had supported the case of prosecution---Prosecution case was mainly based upon the evidence of private and independent persons, whose vehicle was lost and accused person had negotiated for return of the same, subject to payment of extortion---Trial Court had discussed the evidence at length---Mitigating circumstances for reduction of sentence such as the accused persons were required to support their families and were first offenders, not previously convicted were available on record---High Court dismissed the appeals as not pressed, maintained the conviction, however, reduced the sentences.

G.M. Abdullah, Ishaque Ahmed Khawaja and Moula Bux Bhutto for Appellants.

Farman Ali Kanasro for Respondent.

2019 Y L R 2911

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD PANAH JOKHIO and 4 others----Appellants

Versus

The STATE----Respondent

Criminal Appeals Nos. 188, 193, 198, 199 and 202 of 2015, decided on 11th May, 2018.

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

----Ss.217, 218, 468, 166, 167, 420 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, forgery for purpose of cheating, public servant disobeying law with intent to cause injury to any person, public servant framing an incorrect document with intent to cause injury, cheating and dishonestly inducing delivery of property, common intention, illegal gratification---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused purchased the land of co-accused by fraudulent means in connivance with revenue officials---Evidence available on record showed that accused purchased the land in question from co-accused and the same was not directly transferred in his name---No evidence was available to show that accused made any efforts in collision with the revenue officials to get the land in question transferred in his name---Accused was a bona fide purchaser having paid valuable sale consideration for the land---Record showed that no allegation against the co-accused neither in the complaint nor in the FIR had been levelled---No allegation had been levelled against co-accused but he had not been arrayed as accused---However, name of co-accused was mentioned as accused in the delayed final challan, which was not legally justified---Said two accused were private persons, whereas Ss. 217, 218 & 467, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947 were specifically meant for public servants and not private persons---Allegation against the Tapedar/ co-accused was that he had changed the original sketch of demarcation of land of complainant and prepared a fake report in favour of co-accused---Record showed that said site-plan did not bear the signature of said official co-accused, as such there was no evidence/material available with the prosecution to establish the said allegation against the official co-accused---Said site-plan/ sketch produced by witness was not original but the same was only photo-stat copy of the said site-plan/sketch which could not be equated with the original---Evidence of the prosecution witnesses transpired that none of the witnesses had made any direct allegation against the co-accused and it seemed that neither in the complaint nor in the FIR and nor even in the interim challan, any allegation had been made against the said co-accused-appellant--- Record showed that complainant had made no allegation against official co-accused in his complaint; likewise, no allegation had been made against him in the FIR---Complainant had not implicated said co-accused official in the commission of the alleged offence---Other official co-accused was alleged to have helped in preparation of fake sketch in question but by virtue of S.39 of the Land Revenue Act, 1967, sketch could not be termed as official document, as such, there was no foundation of the said allegation---No original sketch was ever produced during the course of evidence---Admittedly, no signature of the said official/co-accused had been found on any of the documents---No evidence was available on the record that any such document ever remained in the custody of said co-accused/official---Allegation of preparing forged or fake document had not been established against him, in circumstances---Main custodian of the document alleged to have manipulated / forged the document was the concerned Mukhtiarkar, who in the present case, at the relevant time, was co-accused whose name was mentioned in the final challan by the Investigating Officer---However, the said co-accused was acquitted and proceedings against him were quashed by the court---However, after conclusion of the trial, official co-accused persons had been convicted by the Trial Court, although case of those appellants was on the same footings---Rule of consistency demanded that if an accused had been acquitted from the charge on the basis of certain evidence and had been extended benefit of material discrepancies/ contradictions in the evidence, other accused charged with similar allegations was also entitled to the same concession/ treatment---Said legal flaws, lacunas and discrepancies in the evidence of the prosecution witnesses made the case of prosecution doubtful---Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Syed Hamid Saeed Kazmi v. State 2017 PCr.LJ 854; Nasir Abbas v. The State and another 2011 SCMR 1966; Mohammad Akram v. The State 2012 SCMR 440 and Umar Farooque v. State 2006 SCMR 1605 rel.

(b) Prevention of Corruption Act (II of 1947)---

----S. 5(2)--- Illegal gratification---Investigation---Scope---Anti Corruption Police was neither conferred with any power nor authority to investigate into a dispute regarding private lands, nor Prevention of Corruption Act 1947, permit the Anti Corruption Police to entertain any complaint with regard to the title dispute between the private parties.

Dilbar Hussain v. Habib-ur-Rehman and another 2017 PCr.LJ Note 218; Muhammad Moosa v. State 2005 CLC 487 and Khadim Hussain v. The State 2001 PCr.LJ 1006 rel.

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

----Art. 84---Comparison of signatures by the court---Scope---Court had power to compare the two signatures or handwritings; however, the safe mode for comparing such signatures or handwritings was to refer the same to Handwriting Expert.

Muhammad Nural Haq Mia and another v. The State PLD 1958 Dacca 341 and Muhammad Anwar v. The State 1984 PCr.LJ 1324 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance, which created doubt in the prosecution story---Benefit of doubt would be extended to the accused as a matter of right and not as a grace or concession.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mirza Adil Baig for Appellant (in Criminal Appeal No.188 of 2015).

Syed Muqeem Shah for Appellant (in Criminal Appeal No.193 of 2015).

Malik Altaf Javed for Appellant (in Criminal Appeal No.198 of 2015).

Ahmed Pirzada for Appellant (in Criminal Appeal No.199 of 2015).

Mohammad Ashraf Kazi for Appellant (in Criminal Appeal No.202 of 2015).

Abdul Jabbar Korai for the Complainant.

Ms. Robina Qadir ADPP for the State.

2019 Y L R 1

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

MEHDI HASSAN through Legal Heirs and others---Appellants

Versus

PUNJAB CO-OPERATIVE BANK and others---Respondents

R.F.A. No.134 of 2018/BWP, decided on 11th September, 2018.

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

----Ss. 4, 5 & 12---Appeal---Condonation of delay---Sufficient cause---Death of counsel---Time spent in obtaining certified copy, exclusion of---Vacations of court of appeal---Scope---Suit filed by applicant was dismissed and appeal filed was beyond prescribed period of limitation---Applicant sought condonation of delay on the ground that he had handed over the documents to his counsel, who died before filing of appeal and applicant had no knowledge of his death---Validity---Suit filed by applicant was dismissed on 23.5.2018 and he filed appeal on 4.9.2018, that is, after 104 days---Limitation for filing appeal was 30 days from the date of decree---Applicant applied for obtaining certified copies on 29.5.2018 and the same was prepared on 23.7.2018 and delivered on 26.7.2018, which meant that 56 days were required for preparation of the certified copies and 59 days were consumed on the date when copy was actually delivered to the applicant---By deducting 89 days, that is, 30 days for limitation and 59 days required for obtaining certified copies for filing appeal, appeal still remained barred by 15 days---Applicant could only be allowed further time for filing appeal, had the appeal been filed on 3.9.2018, that is, opening day after vacations, which time could then be excluded but the same was not done and appeal was filed on 4.9.2018 thus the period of vacations could not be excluded from limitation---Applicant had not been able to establish that the counsel had accepted the brief from him and it was his duty to keep in contact with the office of his counsel to ensure that appeal was filed within time---Law did not help the indolent and each and every day of delay in filing of appeal was required to be explained by the applicant which was not done and where delay was not explained through sufficient reason, same could not be condoned---Application for condonation of delay was dismissed.

(b) Limitation---

----Condonation of delay---Law did not help the indolent---Each and every day of delay in filing of appeal was required to be explained by the party and where delay was not explained through sufficient reason, same could not be condoned.

Lt. Col. Nasir Malik v. Additional District Judge and others 2016 SCMR 1821 ref.

2019 Y L R 43

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD IQBAL (deceased) through L.Rs.---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Revision No.1090 of 2011, heard on 26th September, 2018.

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

----O. IX, R. 13 & S. 115---Suit for declaration and permanent injunction---Ex-parte decree, setting aside of---Suit dismissed for non-prosecution was restored without issuing notice to the defendant---Effect---Audi alteram partem, principles of---Applicability---Counsel for the defendant joining proceedings of the Court after restoration of suit without fresh instruction from his client---Effect---Suo motu revisional powers of High Court---Scope---Suit was dismissed for non-prosecution against which application was moved for its restoration---Trial Court restored the suit without issuing notice to the defendant---Counsel for the defendant who had been attending suit proceedings before its dismissal joined the proceedings without fresh instruction-consent but thereafter disappeared and defendant was proceeded against ex-parte---Ex-parte decree was passed against the defendant who after acquiring knowledge filed an application for setting aside the same which was dismissed concurrently---Validity---Suit fixed for recording evidence of plaintiffs was dismissed for non-prosecution---Application for restoration of suit was allowed on the first date of hearing without any reason and notice to the defendant-petitioner---Decision for restoration of suit being contrary to the principles of audi alteram partem was nullity in the eye of law---Said decision was not tenable and entire superstructure built thereon would annul the proceedings culminating into ex parte decree---Trial Court on appearance of previous counsel who had been attending the proceedings before dismissal of suit commenced the suit proceedings---Said counsel appeared before the Trial Court without fresh consent-instruction of client on revival of suit---Power of attorney submitted by the counsel in the suit did not revive after dismissal of suit---Counsel of petitioner was having no authority to represent him without getting fresh instructions---Defendant-petitioner could not be blamed for not attending the proceedings in circumstances---Application for restoration of suit was not to be accepted without notice to the defendant when he/she was present at the time of its dismissal---Service of defendant had not been effected in the present case---Service of defendant-petitioner was necessary so that he should be made aware of pendency of any lis against him---Courts below had committed material illegality and irregularity and their orders could not sustain in the eye of law---High Court for correcting such errors even could exercise suo motu revisional jurisdiction---Appellate Court had committed illegality while passing the impugned order---Impugned orders passed by the Courts below were set aside---Application for setting aside of an ex-parte proceedings and judgment and decree was allowed---Suit filed by the plaintiffs should be deemed to be pending before the Trial Court---Trial Court was directed to adjudicate the matter in accordance with law---Revision was allowed in circumstances.

Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCMR 664; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Province of the Punjab through Member Board of Revenue and others v. Muhammad Hussain through legal heirs and others PLD 1993 SC 147; Anant Ram v. Ram Saran Das and others AIR 1936 Lah. 209; Bashir Ahmad v. Shafi and others 1985 SCMR 469; Muhammad Anwar v. Muhammad Masood Akhtar and others 1993 MLD 1889; Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67; Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79; Nasir Ali v. Umar Draz and others PLD 2011 Lah. 599 and Government of Balochistan through Secretary Revenue, Board and another v. Rashid and 3 others 2010 CLC 1496 ref.

Province of Punjab and others v. Muhammad Farooq and others 2012 SCMR 1942; Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 and Hafeez Ahmad and others v. Civil Judge Lahore and others PLD 2012 SC 400 rel.

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

----S.115---Revision---Delay in filing revision petition---Effect---Delay in filing revision petition would not be a hurdle to correct the illegality floating on record.

Hafeez Ahmad and others v. Civil Judge Lahore and others PLD 2012 SC 400 rel.

Syed Zamir Hussain Shah, Abdul Qayyum Bhutta and Syed Salman Haider for Petitioners.

Nemo for Respondents.

2019 Y L R 59

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ZEESHAN alias MANNA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.237-J of 2014, decided on 25th June, 2018.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Delay of about forty five minutes in lodging of FIR---Effect---Record showed that occurrence took place at about 10.30 p.m. whereas matter was reported to the police at about 11.15 p.m.---Accused was nominated in the promptly lodged FIR with specific role of causing firearm injury on the back side of the head of the deceased---Eye-witnesses had been nominated in the said FIR---Such promptly lodged FIR excluded chances of consultations and deliberation.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, proof of---Motive for the occurrence was an altercation taken place between the accused and deceased but the matter was settled between the parties through respectables of the locality---Prosecution witnesses had submitted that accused had grudge in his mind that why deceased had quarrelled with him---Accused made good his escape from the place of occurrence after resorting to firing at the deceased, and he raised "lalkara" that he had taught a lesson to deceased for insulting him and quarrelling with him---Witness had deposed that accused threatened deceased that he would teach a lesson for his insult---Prosecution had proved the motive part of its story against the accused.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused armed with pistol fired at the son of complainant who succumbed to the injuries---Ocular account was furnished by the witnesses including complainant---Prosecution witnesses had fully supported the prosecution version as narrated by the complainant in FIR---Although, complainant was father of deceased, whereas remaining witnesses were cousin and uncle of the deceased, yet they were not inimical to the accused, therefore, their testimony could not be discarded merely on account of their relationship with deceased---Said witnesses were natural witnesses and their evidence was confidence inspiring and trustworthy---Occurrence had taken place at night time yet the witnesses had given the source of identification by stating that they identified the accused at the spot in the light of electricity bulb---Said witnesses remained consistent on all material points and there was no discrepancy in their evidence---Said witnesses had given full detail of occurrence leading to the murder of deceased at the hands of the accused---Eye-witness was cross-examined at length but defence failed to shatter the evidence of said witness---Single accused was involved in the present case and it could not be expected from complainant, who was real father of deceased that he would let off the real culprit and would falsely involve accused in the murder of his real son in the absence of enmity between them---Substitution in such situation was rare phenomenon---Ocular account furnished by the witnesses found corroboration from the medical evidence of the deceased---Medical evidence of deceased corroborated the seat of injury, weapon used by the accused and established the time of occurrence---Medical evidence of the deceased was in line with the ocular account furnished by the prosecution--- Circumstances established that prosecution had proved its case beyond reasonable doubt against the accused---Appeal having no force dismissed.

Mawas Khan v. The State and another PLD 2004 SC 330 and Mir Dad v. The State 1985 PCr.LJ 881 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Specific plea taken by accused in his statement---Effect---Accused took specific plea in his defence that deceased was murdered by unknown dacoits during the wardat of dacoity in the darkness of night but said plea taken by the accused was not proved by him during the trial---Accused was bound to prove the said plea taken by him in defence.

Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that pistol along with two live bullets was taken into possession by the police from the residential house of the accused on his pointation, yet no crime empty was secured by the police from the place of occurrence---Alleged recovery of pistol was inconsequential and was not a corroborative piece of evidence against the accused because nothing had been matched with the said pistol allegedly recovered after the period of six years---Recovery was only corroborative piece of evidence and same was not fatal for the prosecution case.

Ch. Muhammad Anwar Bhinder for Appellant.

Ch. Sarfaraz Ali Dayal for the Complainant.

Ali Hassan DPP for the State.

2019 Y L R 84

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

Mst. RUKHSANA MAJEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.6780 of 2016, heard on 12th September, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of dower---Gold ornaments and a constructed house was incorporated in the Nikahnama as "dower" at the time of marriage---Execution of exhibited agreement admitted by the party---Effect---Petitioner/ ex-wife contended that Appellate Court had wrongly set aside the decree passed by the Family Court as written agreement exhibited by the respondent/ex-husband was disbelieved by the Family Court---Respondent contended that petitioner had waived off the right incorporated in Nikahnama in light of agreement between the parties duly written on stamp paper---Validity---Record revealed that petitioner/plaintiff (ex-wife) had admitted the fact that she purchased the stamp paper, mentioning certain serial number and date, which contained her signature as well as thumb impression; she also admitted that she signed the stamp paper after the same was written---Record revealed that document exhibited by the respondent bore the serial number and date as referred to by the petitioner---Respondent produced not only attesting witnesses and the scribe of said exhibited document , but also one witness to prove the purchase of exhibited stamp paper---Witnesses proved the fact that the petitioner had waived her dower in favour of the respondent while she admitted the execution of the document exhibited by the respondent---Appellate Court had rightly appreciated the evidence on record---High Court upheld the impugned decree and judgment passed by the Appellate Court----Constitutional petition was dismissed accordingly.

Nadeem Iqbal Chaudhry for Petitioner.

Respondents proceeded against, ex parte vide order dated 21.5.2018.

2019 Y L R 123

[Lahore]

Before Amin-ud-Din Khan, J

MAQBOOL HUSSAIN AWAN---Petitioner

Versus

ZAIN MALIK---Respondent

Civil Revision No.238288 of 2018, decided on 28th September, 2018.

Civil Procedure Code (V of 1908)---

----S. 115---Second revision petition---Maintainability---Petitioner filed revision under S.115, C.P.C. against the acceptance of application under O. IX, R. 13, C.P.C. by the Trial Court---Petitioner, along with revision petition, filed an application for stay of proceedings of Trial Court as well as grant of injunction against the alienation of suit property and injunction with regard to interference in possession of petitioner, which was declined---Validity---Second revision petition under S.115, C.P.C. was not competent---Order passed under S.115, C.P.C. by the revisional court was not further challengeable through a revision petition before High Court.

Anjum Chemical Storage (Pvt.) Ltd. v. Messrs Chenab Limited Nishatabad and others 2016 SCMR 177 distinguished.

2019 Y L R 125

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD RAFIQ CHAUDHARY---Petitioner

Versus

FAHMEEDA BEGUM---Respondent

Civil Revision No.1188 of 2017, heard on 7th September, 2018.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.133---Suit for specific performance of agreement to sell---Scribe being witness to the transaction---Evidentiary value of statement of scribe---Defendant purchased the stamp paper and had admitted his signatures thereupon---Vendor had denied the purpose of stamp paper as well as contents of agreement to sell---When a person had challenged some part of contents of a document then onus would be upon that person to prove the allegations pleaded by him---Oral evidence was not sufficient against documentary evidence---Stamp paper was issued for an agreement on behalf of defendant in favour of plaintiff---Plaintiff was in possession of the suit property---Remaining sale consideration had been paid in the Trial Court---Scribe could not be considered as an attesting witness---Alleged agreement and transaction took place in presence of scribe in the present case---Scribe was witness to the transaction and his statement could be relied upon---Major portion of statement of witnesses of plaintiff had not been cross-examined---If any portion of statement of witness was not cross-examined then same would be presumed to have been admitted by the other side---Defendant filed a suit for declaration to challenge the validity and legality of alleged agreement of sale but same was withdrawn subsequently---Defendant had not appended the documents produced before the Trial Court---Revision petition was defective in circumstances---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.

Muhammad Rasheed Khan v. Mst. Mehr-un-Nisa 2009 SCMR 740; Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900; Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Bashir Ahmed through L.Rs. and another v. Muhammad Ali through L.Rs. and another 2007 SCMR 1047 and Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98 ref.

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

----S. 115---Revisional jurisdiction of High Court, invoking of---Requirements---Petitioner for invoking revisional jurisdiction of High Court was required to prove that findings rendered by the Courts below were result of mis-reading or non-reading of evidence

Azhar Maqbool Shah for Petitioner.

Salman Hanif Rajput for Respondent.

2019 Y L R 316

[Lahore (Multan Bench)]

Before Muhammad Ameer Bhatti and Tariq Saleem Sheikh, JJ

MULTAN ELECTRIC POWER COMPANY (MEPCO) through Chief Executive Officer and another---Appellants

Versus

Messrs ASIM QAISAR & CO. through Managing Partner and 4 others---Respondents

I.C.A. No.243 in W.P. No.8066 of 2018, decided on 2nd July, 2018.

Electricity Act (IX of 1910)---

----S.24---Discontinuance of supply to consumer neglecting to pay charges--- Scope---Clear and obvious requirement of law was that if any unit out of total units became defaulter, the said liability could be recovered from running units provided they are owned by the same person but after adopting the mechanism mandated in law---Default amount of defaulting unit for that purpose, might be shifted upon the running units by informing the owner in that regard through written notice/letter in an unequivocal manner---Running units on the basis of shifting of liability, be declared non-payer, where-after notice be issued for recovery of the outstanding amount from the running unit as stipulated under S. 24(1) Electricity Act, 1910---Order accordingly.

2019 Y L R 355

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi, Qazi Muhammad Amin Ahmad and Ch. Mushtaq Ahmad, JJ

AZIZ AHMAD---Petitioner

Versus

Syed IRSHAD HUSSAIN SHAH and 18 others---Respondents

Criminal Revision No.417 of 2006, decided on 31st May, 2018.

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

----Ss. 302, 324, 353, 186, 148 & 149---Anti Terrorism Act (XXVII of 1997), S. 25---Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Appeal against final order under S.25, Anti-Terrorism Act, 1997---Scope---Prosecution case was that on the fateful day, a police contingent headed by Inspector in hot pursuit for the arrest of the accused of homicide was confronted by outlaws, duly nominated as well as unknown, variously armed, as a result whereof, Inspector was caught in the line of fire---Group of proclaimed offenders joined the accomplices from the opposite direction---Both sides exchanged fires for almost three hours and as the guns went silent, from amongst the accused, seven were spotted dead---Accused, eight in number, were apprehended at the spot while the remainders took to heels---Accused came up with their own story, related by complainant, he arrayed as many as 18-accused, comprising Police Officials as well as members of opposite clan, for playing havoc with the family with colossal loss of life as well as properties---Private complaint filed by complainant against eighteen accused came up before the court, but the court after recording cursory evidence declined to issue process, hence the revision---Validity---Section 25 of the Anti Terrorism Act, 1997, provided an appeal against the final order---High Court's authority to issue an appropriate writ, inter alia, in the form of mandamus or certiorari was far much wider than statutory jurisdiction to examine correctness, legality or propriety of any finding---Argument that a contra construction of the Act would expose the aggrieved person to the risk of denial of remedy did not hold water---Revision petition being misconceived was held as incompetent, thus, failed.

Abdul Aziz v. The State PLD 1981 SC 352; Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853 and Fazeelat Bibi's case PLD 2013 SC 361 ref.

(b) Interpretation of statutes---

----Interpretation---Principle---Statute was to be read and constructed as a whole and the same holistic approach was to be adopted with regard to a particular provision/section thereof and, thus, a provision could not be dissected into pieces to space a power, otherwise barred---Approach for a partial construction would be anomalous inasmuch as requisition of record for examination of vires of any finding without authority to rescind, modify or set aside the same was venture in futility.

Shannon Realities Limited v. Ville de st Michel 1924 AC 1014 rel.

Malik Muhammad Saleem, Rana Asif Saeed and Khawaja Qaiser Butt for Petitioner.

Malik Aamir Manzoor Awan and Makhdoomzada Syed Najam-ul-Saqib and Qazi Sadar-ud-Din for Respondents.

Muhammad Azhar Khan, Deputy Attorney General, Shan Gull, Additional Advocate General Punjab, Abdul Wadood Khan, Deputy Prosecutor General, Muhammad Ali Shahab, Deputy Prosecutor General and Mehr Nazar Abbas Chawan, Assistant Advocate General Punjab for the State.

Syed Badar Raza Gillani, Amicus curiae.

2019 Y L R 388

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD RASHEED (DECEASED) through L.Rs. and others---Petitioners

Versus

MUHAMMAD BASHIR and others---Respondents

C.R. No.1060-D of 2009, heard on 12th November, 2018.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.I., R.3---Suit for declaration for pre-existing right---Necessary parties, impleading of---Scope---Trial Court decreed the suit and Appellate Court allowed the appeal against the decree---Validity---Plaintiffs could not prove that the suit property was owned by their predecessor---Land had been allotted being evacuee property to plaintiff's predecessor and his brothers---Plaintiff's predecessor had sold out all of his property through registered sale deed in the year 1966 and became landless and the present suit was filed by his legal heirs in the year 2000---Suit for declaration for pre-existing rights but did not create new right---Connivance with the officials of Provincial Government had been pleaded in the suit---Neither the Province nor the officials had been impleaded as defendants in the suit---Non-impleading of Revenue Officials as defendants in the suit was a fatal defect---Revision petition was dismissed, in circumstances.

Ch. Muhammad Saeed for Petitioners.

Agha Intizar Ali Imran and Ali Hassan for Respondents.

2019 Y L R 401

[Lahore]

Before Amin-ud-Din Khan, J

AZAM ALI (Late) through Legal Heirs and others---Petitioners

Versus

ALAM SHER and others---Respondents

Civil Revision No.151 of 2013, heard on 13th September, 2018.

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

---S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Mutation, attestation of---Scope---Declaratory decree---Scope---Contention of plaintiff was that impugned mutation was result of collusion of defendants---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Neither original mutation had been challenged nor transferees of the land had been impleaded as defendants in the present suit---Suit had been filed with a delay of more than twenty years which was barred by time---Limitation for filing a suit for declaration was six years from the date when right to sue accrued---Declaratory decree could declare pre-existing rights but could not the new one---Present suit was not competent---Trial Court had rightly dismissed the same---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Suit was dismissed with costs throughout---Revision was allowed in circumstances.

National Bank of Pakistan v. Emirates Bank International Ltd. and others 2004 CLD 1490; Messrs Chanar Sugar Mills Ltd. and others v. Collector (Sales Tax) and others 2006 SCMR 901 and Saddar Hussain through L.Rs. and others v. Dost Muhammad 2007 CLC 1349 distinguished.

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

----S. 42---Suit for declaration---Declaratory decree could declare pre-existing rights but could not create a new right.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Limitation for filing a suit for declaration was six years from the date when right to sue accrued.

Mian Shah Abbas Iqbal and Mian Wasim Shahabi for Petitioners.

Tahir Mahmood Khokhar for Respondent No.1.

2019 Y L R 415

[Lahore]

Before Malik Shahzad Ahmad Khan, J

NADEEM ASLAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.237490-B of 2018, decided on 10th October, 2018.

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

----Ss. 403 & 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art. 13---Bail, grant of---Double jeopardy, principle of---Applicability---Two FIRs---Accused was arrested by police for committing forgery and using forged "No Objection Certificate" for acquiring a driving license---Accused was earlier convicted and sentenced under Ss. 420, 468 & 471 P.P.C. for preparation of a fake driving license--- Effect--- First Information Report in question was registered for preparation of fake "No Objection Certificate" for same driving license---Second FIR amounted to double jeopardy and was barred under Art. 13 of Constitution read with S. 403, Cr.P.C.---Entire prosecution case was based on documentary evidence and same was already in possession of prosecution---No chance of tampering with evidence existed and no useful purpose would be served by keeping accused behind bars---Offences mentioned in FIR did not fall within ambit of prohibitory clause of S. 497, Cr.P.C. and grant of bail in such like cases was a rule while refusal was an exception---Bail was allowed in circumstances.

Saeed Ahmad v. The State 1996 SCMR 1132; Muhammad Abid Farooq v. The State and another 2015 PCr.LJ 224; Amin v. The State 1998 PCr.LJ 1677; Shamon Jatoi v. The State 1996 PCr.LJ 783; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Mitho Pitafi v. The State 2009 SCMR 299; Qamar alias Mitho v. The State and others PLD 2012 SC 222; Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573; Muhammad Rafique v. The State 1997 SCMR 412 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 ref.

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

----S. 497(2)---Bail---Case of further inquiry---Previous conviction---Effect---No legal restriction existed on grant of bail to an accused due to his previous conviction for offence punishable with death or imprisonment for life if his case is covered under S. 497(2), Cr.P.C.

Rana Zahid Iqbal for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor General and Muhammad Yaqoob ASI for the State.

2019 Y L R 437

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

MUHAMMAD KAMRAN MUNEER---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES through Vice Chancellor/Chairman---Respondent

Writ Petition No.17389 of 2017, decided on 27th December, 2017.

(a) Education Institution---

----Expert opinion--- Judicial review--- Scope---Admission in Medical College on the basis of disability--- Quota of disabled persons--- Scope--- Petitioner applied for admission on the basis of disability---Petitioner was examined by a Medical Board comprising of three Professors and one Assistant Professor who concluded that petitioner was not eligible for disability seat--- Validity---Petitioner had neither challenged the recommendations of the Medical Board constituted by University nor copy of said recommendations had been appended with the petition---Petitioner had not claimed any partiality, bias or discrimination against the Medical Board which examined him---Court could not exercise powers of judicial review against an expert opinion---Petitioner had not joined other candidates who had been granted admission, as party to the petition nor their medical certificates had been appended or challenged---Constitutional petition was dismissed.

De Smith's Judicial Review (Sixth Edition) by Harry Woolf, Jeffrey Jowell and Andrew Le Sueur foll.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 and University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another 2016 SCMR 134 ref.

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

----O. I, R. 3--- Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981), S.10---Defendants, impleading of---Quota for disabled persons---Admission in MBBS on the basis of disability---Scope---Petitioner claimed that disability quota under S. 10 of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 must be 3 per cent of the total seats for MBBS---University contended that rules and regulations contained in prospectus were approved by provincial government which has not been arrayed as party to the petition---Validity---Petitioner's contention with regard to number of seats reserved for disability quota could not be entertained without impleading provincial government as party to the petition---Constitutional petition was dismissed.

Muhammad Usman Sharif Khosa for Petitioner.

M.A. Hayat Haraj for Respondent.

2019 Y L R 510

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

IMTIAZ ALI---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

W.P. No. 59124 of 2017, decided on 24th January, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.489-F---Direction by Ex-officio Justice of Peace---Scope---Petitioner contended that on the application of the respondent under S. 22-A, Cr.P.C., Ex-officio Justice of peace had wrongly passed direction to the police to record his version---Cheque-in-dispute contained three different writings which had made the cheque questionable---Record revealed that the cheque was given to someone else for its onward transmission but the same was deceitfully handed over to the respondent( complainant of the case ) who after filling columns of the cheque secured a direction from the Ex-officio Justice of Peace---Police report showed that petitioner was not found having any fiduciary relationship with the respondent, so issuance of the cheque in favour of the respondent , in circumstances, appeared to be doubtful---Application filed by the respondent was with mala fide intention which fact was not noticed by the Ex-officio Justice of Peace while issuing the direction----Impugned order was not sustainable in circumstances---Constitutional petition was allowed.

M. Ajmal Adil for Petitioner.

Mian Asim Ali for Respondent No.3.

2019 Y L R 547

[Lahore ]

Before Rasaal Hasan Syed, J

MUHAMMAD YAR---Petitioner

Versus

QASIM ALI and others---Respondents

Civil Revision No.125 of 2017, heard on 6th November, 2018.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Suit for declaration---Sale---Proof---Procedure---Contention of plaintiff was that he was owner in possession of suit land and alleged mutation was based on fraud and misrepresentation---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Trial Court had recorded valid reasons to conclude that oral sale could not be established and defendant was unable to prove the payment of sale consideration, transfer of possession or existence of any deal between the parties---Appellate Court did not advert to the contradictions in the evidence of the defendant while reversing the judgment passed by the Trial Court---Defendant had failed to prove the oral sale in his favour---Mutation was to be attested on the touchstone of the mandatory provision contained in Punjab Land Revenue Act, 1967---If Revenue Officer had overlooked the instructions in law or proceeded in derogation to the provisions of Punjab Land Revenue Act, 1967 then such illegality could not be countenanced by the Court---Plaintiff had on oath denied the transaction or receipt of any consideration---Defendant was bound to prove the oral transaction of sale and payment of consideration in circumstances---Evidence of defendant was self-contradictory with regard to payment of sale consideration---Where mutation was questioned on the plea that no oral sale was ever made then beneficiary of the transaction was bound to prove said sale by credible evidence---Impugned judgment passed by the Appellate Court could not be sustained as same suffered from material illegalities and mis-reading and non-reading of evidence---Judgment rendered by the Appellate Court was set aside and that of Trial Court restored---Revision was allowed accordingly.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SCMR 688; Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCMR 1043 and Abdur Rasheed through L.Rs. and others v. Manzoor Ahmad and others PLD 2007 SC 287 rel.

(b) Pleadings---

----No one could be permitted to produce evidence for which there was no foundation in the pleadings.

Abdul Haq and others v. Shaukat Ali and others 2003 SCMR 74 and Sardar Muhammad Naeem Khan v. Returning Officer 2015 SCMR 1698 rel.

Abdul Ali Saleem for Petitioner.

Sarfraz Ahmed Khan for Respondents.

2019 Y L R 565

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD IMRAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.204-J of 2015, heard on 8th November, 2018.

(a) Criminal trial---

----Circumstantial evidence---Scope---Chain of evidence to be in a geometrical progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of evidence---If one ring of chain was missing then whole evidence would be discarded and prosecution case would fall on the ground---In cases of circumstantial evidence, there were chances of procuring and fabricating evidence, therefore, court was required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself about its intrinsic worth and reliability, ensuring that no dishonesty was committed during the course of collecting such evidence by the investigators---If there were apparent indications of designs on part of the Investigating Agency in the preparation of a case resting on circumstantial evidence, court must be on its guard against the trap of being deliberately misled into a false inference.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---First Information Report was lodged after the delay of fifteen minutes---Accused not named in FIR---Effect---First Information Report having been registered with promptitude did not provide any corroboration to the extent of involvement of the accused as his name had not been mentioned therein---First Information Report, in circumstances, could not be used as a corroborative piece of evidence against the accused.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused was charged for committing murder of the deceased, robbery and receiving stolen property---Accused was involved in the present case through supplementary statement made by the complainant on the basis of information provided to him by two witnesses---Said witnesses had informed the complainant that they were coming towards village on their motorcycle and they had seen accused while coming from the village---Accused was carrying a blood-stained knife and his clothes were stained with blood and on call, he escaped---According to the complainant, the application was moved on the same day at 4.00 p.m. wherein he nominated the accused on the asking of witnesses yet it could not be considered as a gospel truth as the said application did not find mention any time of its submission---Admittedly, two other persons also got arrested in the present case during the course of investigation but they were got released subsequently from police custody which casted doubt qua the implication of the accused through said supplementary statement made by the complainant---If the complainant actually moved the supplementary statement on the said date and he was assured about the culpability of the accused then there was no need to associate the other two persons---Even otherwise, the supplementary statement was not put to the accused in his statement recorded under S. 342, Cr.P.C.---Admittedly, witness, who provided information to the complainant was not resident of the same village where the incident had taken place---Said witness had failed to disclose the purpose of coming along with other witness to the said village---Story of going to the village was nothing but a lie to lend crutches to another lie---Said witness had claimed that he informed the complainant as well as the police about the occurrence and the police was already present at the place of occurrence when they reached there---On the other hand, surprisingly neither the complainant nominated the appellant as an accused nor the police took any step in that regard as the documents pertaining to the said date including un-scaled or scaled site plan of place of wajtakkar was prepared by the Investigating Officer to substantiate the factum of wajtakkar---Wajtakkar evidence of the informer/ witness, in circumstances, was nothing but an attempt on the part of the prosecution to bolster up its case against the accused---Witness of extra-judicial confession, who was maternal uncle of the deceased and was important witness, was not produced at trial---Record showed that said witness was not produced as he was un-necessary---Said witness could provide the first degree of evidence of reliable nature, thus, adverse inference could be drawn that because he was not supporting the prosecution case so set up, therefore, he was dropped at the trial---Best evidence, independent in nature, thus was withheld from the court for obvious reasons---Record reflected that as many as 16 stab wounds were found on the person of the deceased but no person from the locality attracted to the house of the deceased despite raising of hue and cry by the deceased---Occurrence took place in day light and the house of the deceased was situated in the middle of the village, which casted serious doubt on the veracity of the prosecution story---Allegedly, occurrence had taken place at 9.30 a.m., whereas, according to the complainant, he along with witnesses reached at the place of occurrence at about 9.00 a.m. and the police had been informed about the incident at 9.30 a.m.---Said facts did not coincide with the inquest report, wherein in column No. 3, the time of death of the deceased becoming known was recorded as 9.45 a.m. and according to the witness, they reached at village at about 9.45 a.m.---Circumstances established that prosecution case was fraught with doubts; that a prudent mind would not decline to entertain being illusory or imaginary and as such the accused was entitled to benefit thereof---Appeal was allowed in circumstances and the accused was acquitted of the charge imputed against him by extending benefit of doubt.

Haq Nawaz v. The State 2018 SCMR 21; Muhammad Asif v. The State 2017 SCMR 486 and Arshad Khan v. The State 2017 SCMR 564 rel.

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

----S. 342---Statement of accused recorded under S. 342 Cr.P.C.---Scope---Any incriminating pieces of evidence which had not been put to the accused in his statement recorded under S. 342 Cr.P.C., could not be used against him.

Muhammad Siddique v. The State 2018 SCMR 71 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused was charged for committing murder of the deceased, robbery and receiving stolen property---Record showed that extra-judicial confession was allegedly made by the accused before two witnesses, one was not produced---Extra-judicial confession was made on 19.5.2013 at about 9.00 p.m., at the house of the witness, whereas, the complainant had already nominated the accused upon the information provided to him by the said witness on 18.5.2013---Question qua the making of extra-judicial confession by the accused before the said witnesses did not arise at all as he had already been nominated as the accused---Extra-judicial confession, in circumstances, was not worthy of reliance and could not be taken even as corroborative of the charge.

(f) Criminal trial---

----Extra-judicial confession--- Scope---Evidence of such type was doubtful and suspicious because of its easy concoction---Such evidence could be taken as corroborative of the charge if the same, in the first instance, rang true and then found support from other evidence of unimpeachable character---Extra-judicial confession was a very weak type of evidence and conviction could not be awarded without having strong corroboration.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Recoveries of different articles---Reliance---Scope---Weapon of offence was recovered from the accused who allegedly had kept the same in safe custody for a long period---Application, did not mention of wrist watch of the deceased and as to whether the deceased was wearing gold or artificial jewellery which was recovered on the pointation of accused---Though the application was moved by the complainant on the same day at 4.00 p.m. but in the said application it was not mentioned that artificial jewellery of the deceased was missing---Similar was the position with regard to blood-stained clothes allegedly recovered from the possession of the accused---In the absence of the evidence that the blood-stained clothes matched with the blood group of the deceased, it would not be in the interest of justice to connect the accused with the commission of the offence---Even otherwise, no report of serologist was available on the record---Investigating Officer did not send the last worn clothes of deceased and the blood-stained clothes of the accused to the Office of Chemical Examiner for forensic analysis---Unless the blood-stained earth or cotton and blood-stained clothes of the victim were not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapon and was the same group which was available on the clothes of the victim and the blood-stained earth/cotton, such inconclusive opinion could not be used as a piece of corroboratory evidence.

Muhammad Asif v. The State 2017 SCMR 486 rel.

Ch. Rabnawaz for Appellant.

Khadim Hussain for the Complainant.

Ikram Ullah Khan Niazi, DPG for the State.

2019 Y L R 610

[Lahore]

Before Amin-ud-Din Khan, J

Hafiz MUHAMMAD SALEEM and another---Petitioners

Versus

BOARD OF REVENUE through Member (Judicial-V) and others---Respondents

Writ Petition No.244340 of 2018, decided on 23rd October, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Right, creation of---Scope---Petitioners were aggrieved of orders passed by Board of Revenue whereby an order in favour of petitioner was declared as non-existent, having no value in the eyes of law---Validity---Rights claimed by petitioners were not in existence and by filing a petition under Art. 199 of the Constitution no rights could be created in favour of petitioners---Any person while invoking Constitutional jurisdiction of High Court was required to show that forum below had exercised jurisdiction not vested in it by law or there was some jurisdictional defect---High Court declined to interfere in the matter as order in question was passed in accordance with law and same could not be declared to be without jurisdiction---Constitutional petition was dismissed in circumstances.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635 Member, Board of Revenue, Punjab, Lahore v. Rafaqat Ali 1998 SCMR 2596; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 and Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab and 2 others v. Sagheer Muhammad Khan and others C.P. No.709-L of 2009 ref.

2019 Y L R 626

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD WASEEM alias VICKY---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.221977-B of 2018, decided on 4th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting when armed with deadly weapon, unlawful assembly, abetment---Bail, grant of---Statutory ground---Scope---Gravity of allegation; liberty of the individual---Scope---Accused and co-accused allegedly made collective firing resulting into murder of brother and Bhabhi of the complainant and two persons were also injured---Accused contended that delay in conclusion of trial could not be attributed to him while he had been behind the bars for more than four and a half years---Validity---Report submitted by the Trial Court revealed that charge was framed in the year 2014 but no prosecution witness had been examined---Seventy adjournments were provided to the prosecution for the production of evidence but the prosecution failed to produce evidence---Adjournments sought by the prosecution were more than adjournments sought by the defence/accused---Order sheet did not reflect that the evidence could not be recorded because of the reason attributable to the accused---High Court observed that gravity of allegation at certain stage, had to yield to consideration of individual liberty and could not be allowed to deny bail to accused even in a case where, despite he, having completed almost four years and ten months in jail, not a single prosecution witness was examined---Said period was quite a long period of an individual detention during trial---Record showed that petitioner was neither a previously convict nor hardened, desperate and dangerous criminal---Bail was allowed to the petitioner, in circumstances.

Tauqeer Hassan Butt for Petitioner.

Muhammad Zul Sabtain Aamir, DDPP and Imran, ASI along with record.

2019 Y L R 640

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

SAIMA ASHRAF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

W.P. No. 115845 of 2017 and W.P. No. 194724 of 2018, decided on 25th April, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of maintenance allowance and dower---Maintenance allowance proportionate to financial status of husband/father---Scope---Dower---Scope---Petitioner (wife) contended that she was entitled for maintenance allowance proportionate to the financial status of her husband and the dower amount as per entry in Nikahnama--- Validity--- Record revealed that respondent was a retired person getting monthly pension of Rs. 7000; he also owned some agricultural as well as urban land in addition to some cattle---Appellate Court, while dilating upon the issue of maintenance allowance, had taken into account the assets of husband and that he had three wives, including the petitioner---Husband had to maintain all three of them---Maintenance allowance to wife /children by a husband/father was governed by Injunctions of Islam---Appellate Court had determined the issue of maintenance allowance of the petitioner quite reasonably---Column No. 17 of Nikahnama showed that dower amount was only to be given to the petitioner in case of divorce by the husband, whereas marriage between the parties was still intact---No illegality or infirmity having been found in the impugned judgments and decrees passed by the two Courts below constitutional petition was dismissed.

Ali Haider and 2 others v. Syed Muhammad Asghar Shah 2015 YLR 511; Dr. Sabira Sultana v. Magsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384; Muhammad Shabbir v. Rehana Kausar and others PLD 2013 Lah. 102 and Mst. Sadia Bibi v. Additional District Judge and others 2013 MLD 247 distinguished.

Muhammad Naveed Shabbir Goraya for Petitioner.

2019 Y L R 710

[Lahore (Bahawalpur Bench)]

Before Ali Baqar Najafi, J

Hakeem KHADIM HUSSAIN through legal heirs---Petitioners

Versus

MEMBER (JUDICIAL-II), BOARD OF REVENUE, PUNJAB LAHORE and 3 others---Respondents

W.P. No.158 of 2008, decided on 20th November, 2018.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 42 & 53---Mutation sanctioned on the basis of decree passed by the Court---Review of said mutation by the Revenue Authorities--- Effect--- Revenue authorities cancelled mutation sanctioned on the basis of decree of Court---Validity---Alleged mutation sanctioned on the basis of judgment and decree was to sustain as long as the supportive decree was intact---Constitutional petition filed by the respondent had been dismissed by the High Court and leave had not been granted by the Supreme Court---Decree on the basis of which mutation was sanctioned had not been set aside and same was holding the field---Revenue authorities could not go against the decree passed by the Court---Sanction of mutation in pursuance of decree was formality and was not independent act and it had not created any independent right---Revenue authorities could not review the mutation sanctioned on the basis of a decree passed by the Court when said judgment and decree had been challenged and its final decision was yet to be made---Title of suit land could not be determined by the Revenue Authorities and it was within the jurisdiction of Civil Court to finally adjudicate the question of title---Impugned mutation had been cancelled without following the mandate of law---Constitutional petition was allowed, in circumstances.

Shahra and others v. Member, Board of Revenue, Punjab and others 2004 SCMR 117; Muhammad Aslam v. Collector and another 1992 CLC 851; Ataur Rehman Khan v. Dost Muhammad and others 1986 SCMR 598 and Muhammad Yousaf and 3 others v. Khan Bahadur through L.Rs. 1992 SCMR 2334 rel.

Malik Muhammad Aslam and Farooq Haider Malik for Petitioner.

2019 Y L R 743

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

NOSHER alias NOSHA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.216891 of 2018, heard on 15th January, 2019.

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

----Ss. 9(a) & 9(c)---Narcotic substances, recovery of---Appreciation of evidence---Quantity of narcotics---Proof---Charas weighing 1050 grams was allegedly recovered from the accused out of which 52.5 grams was sent for chemical analysis---Trial Court convicted accused and sentenced him to imprisonment for 4 years six months along with fine---Plea raised by accused was that safe custody of alleged recovered charas was not proved during trial---Validity---Only one parcel of sample was handed over to Moharir, which was transmitted and got deposited in office of Forensic Science Laboratory---Second parcel comprising remaining allegedly recovered charas/ case property was not handed over to Moharir who had tried to introduce dishonest improvement in such regard---Fact introduced by witness through dishonest improvement during his evidence before court did not carry any legal value rather such conduct had raised doubt regarding evidentiary value of statement of such witness---Case of prosecution against accused to the extent of narcotics received through sealed parcel by Forensic Science Laboratory was proved for purpose of conviction and sentence---High Court converted conviction and sentence recorded under Ss. 9(c) to 9(a) of Control of Narcotic Substances Act, 1997, resultantly, sentence of imprisonment was reduced to 9 months and fine was also reduced---Appeal was dismissed accordingly.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Ikramullah and others v. The State 2015 SCMR 1002; The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Ameer Zeb v. The State PLD 2012 SC 380; Khuda Bakhsh v. The State 2015 SCMR 735 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Ch. Arshad Iqbal Bhullar for Appellant.

Usman Iqbal, Deputy Prosecutor General for the State.

2019 Y L R 768

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

The STATE---Appellant

Versus

AASHIR NADEEM---Respondent

Criminal Appeal No.212430 of 2018, decided on 10th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 540---Qanun-e-Shahadat (10 of 1984), Arts. 129(e), 132 & 133(3)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b)---Recovery of narcotics---Re-examination of witness---Principle---Authorities, after lapse of 2 years of his examination-in-chief sought re-examination of Investigating Officer who was yet to be cross-examined---Validity---Only examination-in-chief of the said witness had been recorded and his cross-examination was not yet not undertaken, so there was no reason for re-examination of the witness---Re-examination could only be directed for explanation of matter referred to in the cross-examination and not regarding any matter deposed in the examination-in-chief---Provisions of S. 540, Cr.P.C. could not be allowed to be exercised in such a case---Appeal was dismissed in circumstances.

2019 Y L R 785

[Lahore]

Before Ali Baqar Najafi, J

ZAHIDA TAHIRA---Petitioner

Versus

JAVED IQBAL and others---Respondents

W.P. No.153370 of 2018, decided on 25th January, 2019.

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

----Ss. 12 & 25---Interim custody of minor sons---Mother a household lady---Schedule of meeting between minors and their father---Ages of the minors were 8 years and 6 years who needed proper care and attention of their real mother/ petitioner--- Father/respondent was a government servant who mostly remained on duty outside the house in view of the nature of his job in police department---Mother, on the other hand, was a household lady who stayed at home and could very well look after the minors even during the pendency of the guardianship petition---(Interim) custody of the minors was given to the mother till the decision on petitions under S. 25 of the Guardians and Wards Act, 1890 pending before the Guardian Court---High Court provided a schedule of meeting for the father to the effect that the mother shall ensure meeting of the minors with their father on first Saturday of every month from 11:00 A.M. to 1:00 P.M. through bailiff in visitation room; that on the occasion of Eid-ul-Fitar and Eid-ul-Azha, the father would be entitled to meet the minors on the second day of Eid from 11:00 A.M. to 2:00 P.M. and on the occasion of birthdays, father would be entitled to meet the minors from 11:00 A.M. to 2:00 P.M. in the visitation room---Constitutional petition was allowed accordingly.

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

----Ss. 12 & 25---Interim custody of minor sons---Interim schedule of meeting between minors and their father provided by Guardian court---Such interim schedule of meeting could always be modified/changed at the time of decision of application under S. 25 of the Guardians and Wards Act, 1890.

Petitioner in person.

2019 Y L R 805

[Lahore]

Before Ali Akbar Qureshi, J

MCB BANK LTD. through duly appointed Attorney---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through Chairman and another---Respondents

Cooperative Petition No.159094 of 2018, heard on 7th December, 2018.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S.11---Transfer of Property Act (IV of 1882), S.52---Lis pendens, principle of---Applicability---Specific performance of agreement to sell executed by Cooperative Society in favour of petitioner stood proved upto the Supreme Court---Punjab Cooperative Board for Liquidation, during pendency of proceedings between petitioner and Cooperative Society, sold the property to respondent--- Validity--- Litigation regarding property in question was very much in the knowledge of the Board, when the property was sold through negotiation, therefore, principle of lis pendens was fully applicable---Sale deed executed in favour of respondent by the Board and cancellation of "No Objection Certificate" issued and order passed by the Board in favour of respondent was set aside by the High Court with directions that Punjab Cooperative Board for Liquidation to execute sale deed of property in question in favour of petitioner after receiving remaining consideration amount---Constitutional petition was allowed in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Bagh Ali v. Mst. Ayesha and others 2013 SCMR 551 ref.

Furqan Naveed for Petitioner.

Khalid Bashir, Manager (Legal), PCBL for Respondent No.1.

Asad Manzoor Butt for Respondent No.2.

2019 Y L R 870

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SHAMIM AKHTAR through Special Attorney---Petitioner

Versus

PROVINCE OF PUNJAB through Collector/DOR and 3 others-- Respondents

Civil Revision No.485 of 2017, heard on 16th November, 2018.

Specific Relief Act (I of 1877) ---

----S. 42--- Suit for declaration---Limitation--- Mutation--- Fraud--- Proof of--- Requirements--- Contention of plaintiff was that impugned mutation was based on fraud---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Plaintiff was bound to plead and prove the fraud on the basis of standard set out through the law---When third party had challenged the validity of a mutation then standard for proving its contention was different from the case where a party had challenged the alleged transfer deed or oral mutation in favour of defendant---Principle of "shifting of onus" was applicable and only a statement on oath before the Court by the plaintiff was sufficient---When third party had challenged the validity of mutation between two other parties then third party was required to plead and prove the fraud with full details---Nothing was available with regard to details of fraud in the present case---Only plea that husband of defendant was a retired Patwari was not sufficient to hold the transaction as invalid---Impugned mutation was attested on 28.09.1995 and suit was filed on 14.10.2004 which was barred by time---Impugned judgment passed by the Appellate Court was not sustainable under the law---Findings recorded by the Trial Court were well reasoned and in accordance with law---Findings recorded by the Appellate Court were declared nullity in the eye of law---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8; Farman Ali v. Muhammad Ishaq and others (PLD 2013 SC 392; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Commissioner of Income Tax, Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Muhammad Younas v. Waris Baig and 2 others 2012 CLC 1846 and Rasheeda Begum v. Ghulam Ahmed and another 2007 CLC 172 rel.

Ch. Sajjad Tabassom for Petitioner.

Umer Farooq Khawaja, A.A.G. for Respondent No.1.

Mahmood Ahmad Bhatti for Respondent No.3.

Date of hearing: 16th November, 2018.

2019 Y L R 882

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

Qari MUHAMMAD SADIQ JAMEEL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.689 of 2012, heard on 28th November, 2018.

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

----Ss. 409, 420, 486 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating and forgery---Appreciation of evidence---Proof---Benefit of doubt---Accused was alleged to have prepared a forged documents on basis of which he misappropriated an amount of Rs.1,400,192/- in respect of salaries of bogus teachers---Trial Court convicted accused and he was variously sentenced maximum up to imprisonment for life---Validity---Complainant failed to state even a single word regarding involvement of accused in preparing of forged documents or he was witness of documents alleged against accused---Ingredients of S. 468, P.P.C. were not attracted in the case of accused---No evidence was available against accused that he cheated dishonestly to complainant and used forged documents as genuine, therefore, ingredients of Ss. 420 & 471, P.P.C. were also not made out---Benefit of even a single doubt was to be resolved in favour of accused and his conviction could not be sustained on such doubtful evidence adduced by prosecution---Prosecution failed to prove charge against accused beyond reasonable doubt and finding of conviction recorded by Trial Court could not be sustained---High Court set aside convictions and sentences recorded by Trial Court against accused and he was acquitted of the charge---Appeal was allowed accordingly.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 415 & 420---Intention of cheating---Proof---Intention of cheating has to be discovered from evidences and not from recital or complaint.

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

----Arts. 2(c)(ii) & 72---Documentary evidence---Proof---Truth of contents of documents cannot be proved by merely producing same for inspection of court within purview of Art. 2(c)(ii) of Qanun-e-Shahadat, 1984---Documents upon which a party relies at first be placed before court and then to prove same by calling witnesses.

Abdul Oayyum v. Muhammad Rafique 2001 SCMR 1651; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182 rel.

Muhammad Imran Chohan for Appellant.

Ikram Ullah Khan Niazi, Deputy Prosecutor General for the State.

Date of hearing: 28th November, 2018.

2019 Y L R 925

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

MUHAMMAD ARSHAD MUGHAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.526/J of 2016, heard on 22nd January, 2019.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analyst) Rules, 2001, R. 6---Possession of narcotic drug---Delay in registration of FIR---Safe custody and transmission---Proof---Report of Government Analyst---Non-mentioning of protocols of test applied---Effect---Prosecution case against accused was that he tried to smuggle heroin from international airport---Police, on secret information, apprehended accused and recovered huge quantity of heroin---Held; recovery was made at 12:45 a.m. (night) whereas complaint was prepared at 9:30 a.m. (next morning); such delay raised questions qua veracity of the case and signaled towards consultation, concoction, inducement and procurement on the part of prosecution---Forty five cartons were checked and only footballs were found therein, on further checking of two cartons, heroin was found therein---Prosecution witnesses could not separately point out before the court about the cartons from which heroin was allegedly recovered and could not prove safe custody and transmission of heroin to the Government Analyst---Prosecution witness deposed before court that he handed over recovered parcel to other prosecution witness who deposed on the same lines---Complainant deposed that he transmitted the recovered parcel to the Government Analyst---Report of Government Analyst revealed that he received parcels/samples from Incharge Anti-Narcotic Force by hand---Government Analyst had not mentioned the protocols of tests conducted by him which made the report inconclusive and rendered the same invalid and not reliable for the purpose of conviction---Appeal was allowed in circumstances and conviction and sentence recorded against accused was set aside.

Ikramullah and others v. The State 2015 SCMR 1002; The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Razzaque v. The State (Criminal Review Petition No.69 of 2018 rel.

Adnan Ahmad Khawaja and Ms. Malika Saba for Appellant.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State.

Date of hearing: 22nd January, 2019.

2019 Y L R 958

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ARSHAD and 2 others---Appellants

Versus

HAQ NAWAZ and 9 others---Respondents

Regular Second Appeal No.8 of 1998, heard on 28th November, 2017.

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

----S. 215---Suit for declaration---Principal and agent (attorney)---Transfer of property by attorney to his kith and kin---Permission of principal, requirement of---Concurrent findings of facts by two courts below---Plaintiffs claimed their ownership on basis of oral sale mutation got entered in their favour by their father who was holding General Power of Attorney in his favour by defendants---Suit was decreed in favour of plaintiffs by Trial Court and Lower Appellate Court---Plea raised by defendants was that father of plaintiffs as attorney was not competent to transfer suit land of his principal to his kith and kin without specific permission in such behalf---Validity---Neither agent himself could claim his ownership rights in suit land of his principal merely on basis of agency document nor for his own kith and kin; it was sine qua non for agent to have sought prior approval of principal in that behalf after acquainting principal with material circumstances on subject, failing which principal was at liberty to repudiate transaction---Both courts below failed to analyze facts and law on the subject and had committed grave irregularity and illegality while passing judgments and decrees and same could not be sustained in eyes of law---High Court in exercise of appellate jurisdiction set aside judgments and decrees passed by two courts below as same were passed erroneously, contrary to law and usage---Second appeal was allowed in circumstances.

Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488; Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Nazim ud Din and others v. Shaikh Zia ul Qamar and others 2016 SCMR 24 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 ref.

(b) Transfer of Property Act (IV of 1882)---

----S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---"Sale", proof of---Necessary ingredients---Onus to prove---Vendee, in order to enforce sale, must establish firstly that transaction was struck with title-holder or having authority to create a right, secondly it was settled against consideration and thirdly that it was accompanied by delivery of possession---Mere execution of agreement, attestation of mutation or even registration of document by itself does not furnish proof of ingredients of "sale"---Whenever any of such documents as well as transaction of sale reflected therein is denied or questioned, onus lies on beneficiary.

Mian Anwar Mubeen Ansari for Appellants.

Malik Javaid Akhtar Wains for Respondents Nos. 1 and 2.

Date of hearing: 28th November, 2017.

2019 Y L R 1008

[Lahore]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

SHAMSHAD ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.705 and Murder Reference No.194 of 2012, heard on 12th November, 2018.

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

----Ss. 302(b), 394, 511 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Appreciation of evidence---Supplementary statement---Scope---Prosecution case was that the accused and co-accused committed murder of brother of the complainant---Record showed that no accused was nominated in the FIR but alleged that four persons committed the offence---Complainant later on nominated three persons as accused, including the present accused-appellant through supplementary application---Application mentioned that two persons had told the complainant that his brother was murdered by accused and co-accused during dacoity---Said application did not show as to how it had come into the notice and knowledge of the informers that alleged three accused had committed murder of victim during dacoity---No source was mentioned in the said supplementary application in that regard although the application was moved about 1-1/2 months after the registration of the case---Supplementary application, in circumstances, was of no evidentiary value in the peculiar circumstances of the case particularly when testimony of both the informers had not been relied by Trial Court---Application on the basis of which FIR was got registered, showed that it was a targeted murder but through supplementary application entire mode and mechanism of the occurrence had been changed--- Supplementary application had changed the case that of murder during dacoity and number of accused had been reduced from four to three---Circumstances established that very registration of the case and nomination of the accused was of no help to the prosecution---Said vital aspect of the case had lost its efficacy and same was fatal for the case of prosecution.

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

----Ss. 302(b), 394, 511 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused committed murder of brother of the complainant---Ocular account was based upon the statement of complainant and his cousin---Complainant had claimed himself eye-witness of the case but from a considerable distance comprising forty four feet and that too in the darkness of night, at 9.30 p.m. and only in the lights of motorcycle---To identify the assailants in such light and distance was not possible---Source of light could not be termed as sufficient for seeing the faces of the accused persons---First Information Report mentioned that all the four unknown accused were healthy, young and of average height---Specific features of the said accused persons were not mentioned therein like complexion, shape of face including face cut, etc.---Said circumstances suggested that no specific features were available with prosecution which could be made basis for subsequent identification of the accused persons---No identification parade was held---Identification of the accused could not be proved and said aspect ipso facto smashed the case of the prosecution--- Complainant though claimed himself to be the eye-witness but non-mentioning of his name in the Medico-Legal Report of deceased in the column of name of accompanying person and relationship cast doubt upon his claim of being eye-witness---Complainant did not receive any injury during the occurrence although four assailants armed with weapons, were alleged to have made firing and furthermore no empty could be secured from the place of occurrence---Said fact also would go against the claim of complainant about his presence at the spot---Such circumstances showed that either said spot was not place of occurrence or complainant was not present there and even otherwise complainant, in the circumstances, appeared to be a chance witness---Ocular account was of no help to the case of prosecution in circumstances---Prosecution had failed to prove its case beyond shadow of doubt against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Abid alias Rana v. The State 2016 SCMR 1515 rel.

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

----Ss. 302(b), 394, 511 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Appreciation of evidence---Extra-judicial confession---Scope---Accused were charged for the murder of brother of complainant---Extra-judicial confession was introduced by prosecution through four witnesses---Extra-judicial confession was weak type of evidence and was usually introduced by the prosecution to protect its case---When accused persons made extra-judicial confession they were not apprehended and even no attempt was made in that regard---Witnesses of alleged extra-judicial confession were not of status or authority---Evidence of witnesses of extra-judicial confession was of poor quality---Said evidence had even been introduced at much belated stage and one set of witnesses of extra-judicial confession had already not been relied by the Trial Court---Extra-judicial confession introduced by the prosecution seemed to be improbable and thus of no evidentiary value.

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

----Ss. 302(b), 394, 511 & 34---Criminal Procedure Code (V of 1898), Ss.164 & 342---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Appreciation of evidence--- Judicial confession---Retraction---Scope---Statement of accused under S. 164, Cr.P.C. had been recorded on oath and thus, was of no evidentiary value---Even otherwise, it was exculpatory in nature and was retracted---Weight was to be given to the statement under S.342, Cr.P.C. as compared to statement under S. 164, Cr.P.C.

Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 and Nasir Mehmood and another v. The State 2015 SCMR 423 rel.

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

----Ss. 302(b), 394, 511 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that pistol was recovered from accused but it was of no help to the prosecution case because no empty was secured from the place of occurrence---Report of Forensic Science Laboratory only showed that weapon was in working order, which was of no help to the case of prosecution.

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

----Ss. 302(b), 394, 511 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Medical evidence---Scope---Medical evidence could only tell about seat of injury, its nature and weapon used for causing the same but could not identify its author.

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

----Ss. 302(b), 394, 511 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, common intention---Motive, not proved---Effect---Prosecution had firstly claimed motive to be targeted killing and thereafter murder during dacoity---Nothing had allegedly been looted or taken away---Record also showed that one brother of the deceased was also murdered---Motive lost its significance in circumstances. [p. 1016] N

Barrister Salman Safdar and Ms. Sheeba Qaiser for Appellants.

Ch. Zubair Ahmad Farooq, Additional Prosecutor General for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 12th November, 2018.

2019 Y L R 1046

[Lahore]

Before Shehram Sarwar Ch. and Farooq Haider, JJ

AWAIS and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.9/J and 12/J, PSLA No.28, Criminal Revision No.30 of 2016 and Murder Reference No.491 of 2015, heard on 13th December, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party armed with deadly weapons made firing upon the complainant party, due to which one person succumbed to the injuries at the spot---Motive of the occurrence was that accused had committed murder of eleven persons of the complainant party and whoever came forward as complainant or witness of those cases, accused persons committed his murder---Ocular account consisted of statements of two witnesses including complainant who had claimed themselves to be the eye-witnesses of the occurrence---Admittedly, both the said witnesses were not residents of the place of occurrence, neither they had any property nor any business/job over there---Said witnesses even could not offer or establish any valid reason for their presence at the time and place of occurrence---Complainant had claimed that they had gone to the place of occurrence because they had some work in NADRA office but neither NADRA office had been shown in the site plan nor any detail/nature of work had been disclosed the witnesses---Complainant had claimed that on the day of occurrence, they proceeded to the office of NADRA on his Dala (vehicle) but said Dala had neither been shown in the site plan nor it had been produced before the police---Witness had clearly stated that they had gone in his car at the place of occurrence which was being driven by the complainant---Neither the said car had been shown in the site plan nor produced before the police---Said witnesses had contradicted each other on that material point---Admittedly, both the said witnesses were also inimical to the accused persons---Evidence of such chance and inimical witnesses could not be relied in circumstances---Parentage and other particulars of co-accused were not given in the FIR and during entire investigation said fact was not disclosed by the complainant or any other prosecution witness---Record showed that four persons with the name of co-accused resided in the village---Identification parade, in circumstances, could have been safe mode which had not been done---Material and history available on record showed that both the said eye-witnesses were having grudge/ enmity against accused persons---If they were available at the place of occurrence in presence of accused persons, who were allegedly armed with lethal weapons like Kalashnikov then they both would have been first target of the accused persons---Record showed that complainant had also filed private complaint in the case and in his statement recorded under S. 200 Cr.P.C., he introduced two more accused persons in the case---Complainant during his examination under S. 200 Cr.P.C. had stated that one of the accused fired at them with intention to commit their murder---Complainant while appearing as witness had omitted the name of said two accused---Ocular account, in circumstances, was neither believable nor confidence inspiring and both the eye-witnesses were not truthful---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed in circumstances and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Mst. Shazia Parveen v. The State 2014 SCMR 1197; Muhammad Rafique v. The State 2014 SCMR 1698; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Arshad Khan v. The State 2017 SCMR 564 and Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Medical evidence---Prosecution case was that accused party armed with deadly weapons made firing on the complainant party, due to which one person was hit and succumbed to injuries at the spot---Complainant had stated that deceased received firearm shots from the distance of five feet but no blackening was found on any wound in the post-mortem report---Medical evidence had contradicted the ocular account and falsified the presence of the eye-witnesses at the place of occurrence, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging the FIR---Scope---Complainant's version was that the occurrence took place at 3.00 p.m.---Post-mortem report showed time of death as 1.00 p.m.---Post-mortem had been performed after about delay of nine hours for which no plausible reason had come on the record---Said fact showed adverse to the claim of prosecution that FIR was promptly recorded rather it was an un-witnessed occurrence---Time had been consumed by the prosecution for engaging and procuring witnesses and then after consultation and deliberation, version had been concocted and incorporated in the record of the case.

Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that Kalashnikov was recovered on the pointation of co-accused---Said recovery was of no help to the case of prosecution because the Kalashnikov as per report of Forensic Science Agency had not matched with the empties allegedly secured from the alleged place of occurrence.

(e) Criminal trial---

----Abscondance---Scope---Abscondance was only a suspicious circumstance and it could not cure the defect of substantial nature of the case of prosecution---If ocular account had been disbelieved then abscondance being corroboratory piece of evidence was of no help to the case of prosecution.

Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Motive of the occurrence was that the accused had committed murder of eleven persons of the complainant party and whoever came forward as complainant or witness of those cases, accused persons committed his murder---Complainant did not produce anything to prove the same---Accused persons produced and got exhibited the FIR, which showed that same could not be considered as motive for committing murder of deceased but was the reason for false implication of the accused persons in the peculiar circumstances of the case.

Tariq v. The State 2017 SCMR 1672 rel.

Faisal Shahzad Gondal for Appellant No.1.

Ms. Saika Javed for Appellant No.2.

Tariq Javed, District Public Prosecutor for the State.

Syed Zahid Hussain Bukhari for the Complainant.

Date of hearing: 13th December, 2018.

2019 Y L R 1093

[Lahore]

Before Rasaal Hasan Syed, J

FAROOQ HANIF---Appellant

Versus

MUHAMMAD IBRAHIM---Respondent

R.S.A. No. 55 of 2013, decided on 4th January, 2019.

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

----Arts. 79 & 82---Specific Relief Act (I of 1877) S. 12---Suit for specific performance of agreement to sell---Document---Proof of---Procedure---Statement of deed writer---Evidentiary value---Plaintiff was required not only to prove the execution of sale agreement but also the existence of independent transaction of sale---One of the marginal witnesses of agreement to sell, in the present case, appeared but other was neither produced nor summoned---Execution of agreement to sell had not been proved in accordance with the mandate of Art. 79 of Qanun-e-Shahadat and same was inadmissible---Deed writer was not attesting witness and he could not make up the deficiency in evidence due to non-appearance of second witness of agreement to sell---Even deed writer did not know the parties or the witnesses and no payment was made in his presence---Where witness did not know the parties and their identification was not known to him through any independent person then his statement did not have value to prove the execution or existence of transaction---Plaintiff never attempted to summon the witness through Court nor availed the opportunity to produce him and to depose him before the Court---Nothing was on record that said witness refused to record his statement in the Court---If attesting witness of a document had died or did not recollect the execution of the same then its execution could be proved through other evidence---Plaintiff was bound to have summoned the witness and if on appearance he denied the document then course permissible in Art. 82 of Qanun-e-Shahadat, 1984 could be resorted to---Plaintiff could have made a request for the expert view on comparison of signatures of the witness on the document with his specimen signatures to satisfy the Court that he had unreasonably denied the execution of document---Plaintiff without following the legal course could not be allowed to raise the plea that witness was related to the other side and he would not appear as witness if summoned---Plaintiff even did not make any effort to get the specimen thumb impression and the signatures of defendant in the Court---No request for an expert opinion was ever made nor any expert was ever summoned to prove the signatures so as to establish the execution of document---Plaintiff should have summoned the stamp vendor as defendant had denied to have ever purchased the stamp paper---No attempt was made to produce the stamp vendor and best evidence was withheld raising adverse presumption against the plaintiff---Appellate Court had correctly appreciated the evidence and declared that plaintiff had failed to prove the existence of sale transaction or execution of sale agreement---Second appeal was dismissed, in circumstances.

Hafiz Tasaddaq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 and Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70 rel.

Ch. Khalil-ur-Rehman for Appellant.

Mian Hamad Yaseen and Ch. Muhammad Tariq Rehman for Respondent.

2019 Y L R 1131

[Lahore (Bahawalpur Bench)]

Before Asjad Javaid Ghural, J

NAUMAN ULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 383, 391, 394, 397, 398 and 403, Criminal Revision No.217 and Murder Reference No. 65 of 2012, decided on 12th December, 2018.

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

----Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of two hours and fifteen minutes in lodging FIR---Effect---Record showed that incident took place at 10.00 a.m., which was reported to the police on the same day at 12.00 noon---Crime report was chalked out at 12.15 p.m.---Complainant had deposed that the application for registration of the case was drafted by a person in presence of 8-10 persons including 4/5 Advocates---Facts remained that post-mortem examination of the deceased was conducted prior to the registration of the FIR---Circumstances suggested that FIR was lodged with due deliberation, fabrication and legal consultation by stopping the daily diary of the police station.

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

----Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Ocular account in contradiction with medical evidence---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing upon them, as a result of which, two persons of the complainant party died and four were injured---Motive of the occurrence was longstanding litigations between the families of the parties---Ocular account of the incident was furnished by three witnesses/injured including complainant---Complainant reiterated the contents of the crime report in his deposition before the Trial Court---Witnesses made almost identical story but the testimony of all the said material witnesses stood contradicted with the medical evidence---Complainant had deposed that he sustained injuries at his elbow and right ankle but as per medical certificate, the injury at his left elbow was non-existent whereas the other injury at his right ankle went through and through was an exit wound---Witness/injured had claimed that he sustained six injuries including two exit wounds during the occurrence but his Medico-Legal Certificate showed that the said injuries were caused through .12 bore gun as the same were pellet injuries---Lady witness/injured had sustained four firearm injuries with blackening and burning around the wounds caused by accused, who had already been acquitted of the charge by the Trial Court---Co-accused was attributed the role of causing firearm injury with his 12-bore gun at the back of lady injured witness but her Medico-Legal Certificate showed that the same was caused by some blunt weapon---Accused was attributed the role of causing firearm injury at the neck of witness but the said injury was non-existent---Record transpired that nine co-accused persons had already been acquitted of the charge while disbelieving the prosecution evidence including the injured witnesses especially having into account the variation in number and nature of the injuries being non-existent---Same set of witnesses, in circumstances, could not be believed to the extent of accused-appellants to maintain their conviction and sentence under capital charge---Co-accused had already been acquitted of the charge and no appeal against their acquittal had been preferred by the complainant or the State---In the present case, the stamp of injuries on the person of injured witnesses was though sufficient to establish their presence at the place of occurrence at the relevant time, yet their narration regarding number of accused persons carrying specific firearms, firing of each individual and the injuries sustained by the injured witnesses with exact locale and seat of injuries, was beyond human control---Locale and seat of injuries sustained by the injured witnesses as well as both the deceased showed that the same had been caused from one direction having same measurement possibly caused by one or two persons---Such situation indicated that the prosecution version about role assigned to the accused persons of causing one shot each, was totally vanished---Complainant/injured remained mum for twenty days and got recorded his statement under S. 161, Cr.P.C. before the police with considerable delay, which by itself rendered his authenticity to be legally not acceptable---Four injured witnesses did not appear in support of prosecution version rather they were given up by the prosecution being unnecessary---Possible inference under Art. 129(g) of Qanun-e-Shahadat, 1984 was that had they been produced before the trial court, they would have not supported the prosecution version---Motive as set up by the prosecution was that the parties were indulged in murderous enmity---Such enmity could be used by either side and the motive being double edged weapon might have possibly been the base of false implication of entire male family members of the opposite party---Circumstances established that prosecution had failed to prove the charge against the accused persons beyond shadow of reasonable doubt, benefit of which would resolve in favour of accused---Accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Shahbaz v. The State 2016 SCMR 1763; Tariq v. The State and others 2017 SCMR 1672; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapons of offence were recovered at the instance of accused--- Reliance--- Scope--- Record showed that firearms recovered at the instance of accused persons were sent to the Forensic Science Laboratory for its comparison with the crime empties claimed to have been secured from the place of occurrence after their arrest---Report of Forensic Science Laboratory was positive, yet the possibility could not be ruled out of consideration that the same had been managed and manoeuvered by making fire shots from the weapons recovered at the instance of the accused in order to get favourable report of Ballistic Expert---Recovery of respective firearms, in circumstances was inconsequential.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(d) Administration of justice---

----Each and every case was to be decided on totality of impressions gathered from the facts and circumstances of the case.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

Syed Zeshan Haider, Syed Asim Bokhari, Ch. Haq Nawaz, Sohaib Altaf, Syed Badar Raza Gilani for Appellants.

Yasir Yaqoob, Qaisar Yaqoob, Imran Ullah, Abdul Ghaffar, Naeem Imran, Tanveer Ahmed, Muhammad Mushtaq and Naveed Ahmed on bail.

Mehar Muhammad Bakhsh, Muhammad Adnan Jatoi and Sardar Afzaal Ahmad Madahir for the Complainant.

Najeeb Ullah Jatoi, Deputy District Public Prosecutor for the State.

2019 Y L R 1175

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi and Raja Shahid Mehmood Abbasi, JJ

AHMED KHAN alias AHMED QAIS and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.484 of 2017, heard on 14th January, 2019.

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

----Ss.9(c) & 15---Recovery of narcotics---Benefit of doubt---Secondary evidence---Principle---Accused persons were arrested for carrying 5 kilograms of heroin---Trial Court convicted accused persons and sentenced them to imprisonment for 7 years along with fine---To substantiate proceedings of raid, recovery of narcotics and arrest of accused persons, complainant/ investigating officer did not appear before Trial Court and such fact was fatal for prosecution and sufficient to demolish entire structure of prosecution case---Secondary evidence could be led through another witness who must remain associated with actual witness and was acquainted with his handwriting and signatures---Neither circumstances requiring to lead secondary evidence were brought on record nor witness who was produced as secondary evidence remained associated with complainant/ investigating officer and was not acquainted with his handwriting and signatures--- Prosecution witness appearing as secondary evidence never worked with complainant/investigating officer and witness had not seen any document prepared by him---Prosecution failed to substantiate proceedings allegedly carried out by complainant/ investigating officer---Prosecution had alleged that complainant/investigating officer was responsible for concocting false FIRs against innocent persons who was removed from service---Such allegation of prosecution also discredited complaint against accused persons---High Court set aside conviction and sentence awarded by Trial Court to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

State v. Muhammad Rafeeque 1984 PCr.LJ 961 and Muhammad Akram v. The State 2012 SCMR 440 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Prosecution was to establish its case and prove charge against accused beyond shadow of reasonable doubts---Even a slightest doubt entitles an accused due benefit of acquittal not as a matter of grace or concession but as of right.

Tafiq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Raja Aamir Abbas for Appellant.

Syed Intikhab Hussain Shah, Special Prosecutor ANF for the State.

2019 Y L R 1195

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MOHAMMAD AKRAM---Appellant

Versus

Mst. NOORO MAI---Respondent

R.S.A. No.57 of 2012, decided on 21st December, 2018.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Talbs, performance of---Talb-i-Muwathibat was sine qua non for the right of pre-emption---Statements of witnesses of pre-emptor were contradictory with regard to time of performance of Talb-i-Muwathibat---Once evidence of pre-emptor had become shaky or his rival succeeded then superstructure had to collapse---Pre-emptor had failed to mention the date of execution and dispatch of the notice of Talb-i-Ishhad in the contents of plaint---Plaintiff had failed to plead that notice of Talb-i-Ishhad was served upon the vendee---Pre-emptor had failed to prove fulfillment of requisite demands as per requirements of law---Plaintiff was not co-sharer in the Khewat in question---Pre-emptor was bound to produce on record copy of Aks Shajrah besides examination of its maker and the copy of Warabandi to prove that she was Shafi Jar as well as Shafi Khaleet---Said documents were not produced thus best evidence had been withheld---Adverse inference would be drawn against the pre-emptor, in circumstances---Both the Courts below had failed to appreciate the evidence in its true perspective---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence on record---Impugned judgments and decrees passed by the Courts below were set aside---Second appeal was allowed, in circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Mst. Saleem Akhtar v. Ch. Shauk Ahmed 2009 SCMR 673; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 Haider Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213; Khushi Muhammad v. Liaquat Ali represented by Muhammad Irshad and others PLD 2002 SC 581; Iftikhar through legal heirs and others v. Capt. Khadim Hussain through legal heirs and others PLD 2002 SC 607; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 and Muhammad Yousaf Baig v. Rehmat Ali 2009 SCMR 642 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for possession through pre-emption---Requirements---In order to succeed in a suit for pre-emption, the pre-emptor has to show that he has superior right of pre-emption qua the vendee(s) at three stages; firstly on the day of sale, secondly, when the suit is to be instituted and lastly the date when it is finally culminated.

Baldeo Misir v. Ramlagan Shukul AIR 1924 Alahabad 82; Rai Tulley Khan v. Ahmed Hassan Khan and others 1981 SCMR 1075; Muhammad Khan and others v. Muzaffar PLD 1983 SC 181 and Hasil and another v. Karam Hussain Shah and others 1995 SCMR 1385 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

---S. 13---'Talb-i-Muwathibat'---Require-ments---Right of pre-emption is not activated unless Talb-i-Muwathibat is performed, which should not be dubbed as mere technicality, but at times it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of the pre-emption---Talb-i-Muwathibat is termed as immediate demand and must be performed as early as possible on receiving the information about the sale and its immediate performance is, in fact, its beauty and if such fact is not proved, then definitely it can safely be held that demand was not performed in its true spirit.

(d) Maxim---

---"Secundum allegata et probata": Any evidence led to prove a fact, which was omitted to be pleaded, had to be ignored.

Abdul Rasheed Bodla and Sabir Ali Cheema for Appellant.

Tahir Mehmood and Malik Mohammad Latif Khokhar for Respondent.

2019 Y L R 1226

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD ASLAM and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 915, 1011, Criminal P.S.L.A. No.114 and Murder Reference No.204 of 2014, heard on 15th November, 2018.

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

----Ss. 302, 428, 429, 395, 109, 148 & 149---Qatl-i-amd, mischief by killing or maiming animal of the value of ten rupees, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, dacoity, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with co-accused persons while armed with deadly weapons assaulted on complainant party, made firing upon them, due to which four persons of the complainant party died---Motive behind the occurrence as disclosed in the crime report was that accused had suspicion that deceased persons had murdered their brother and children---Ocular account in the present case had come from the mouth of two witnesses including complainant---Said witnesses had claimed that they were present at the spot and they had seen the assailants while resorting to indiscriminate firing resulting into instantaneous death of all the four deceased---No denial was available to the effect that both the prosecution witnesses of the ocular account were related to the deceased as complainant was real brother of the deceased while he was son of other deceased whereas the other eye-witness was real brother of deceased---Where the ocular account was coming from a source, which was interested, related and biased, independent corroboration was always deemed essential for taking it into consideration---Facts and circumstances of the case showed that the case of accused-appellant was distinguishable from the other three co-accused persons-appellants---Co-accused persons had been assigned the role of generalized nature of causing fire-arm injuries while accused-appellant had been ascribed specific role of inflicting injury on the person of deceased/father of complainant---Prosecution witnesses could not establish the case against all the accused person on equal footing, in circumstances---Co-accused persons-appellants took specific plea during investigation that they were not present at the place of occurrence at the relevant time---Number of persons had appeared during the course of investigation in support of plea of alibi taken by co-accused persons-appellants, which was accepted by the Investigating Officer and even their arrest was deferred---No recovery of any sort of weapon was affected from co-accused persons-appellants---Case of co-accused persons-appellants was squarely distinguishable from the case of accused-appellant---Motive of previous enmity over murders had been alleged against the accused; however, during the course of trial, it had come to limelight that brother of the complainant was involved in murder case of brother of accused-appellant, wherein he was sentenced to death---Motive was not against the present co-accused-appellants---Similarly, prosecution had failed to substantiate its version with regard to abetment, which was discarded by the trial court---Record transpired that on the same set of evidence, five co-accused persons were acquitted of the charge---No allegation against co-accused persons-appellants was levelled about making firing upon the cattle-head, which might have constituted the offence under S. 429, P.P.C.---Prosecution had failed to prove its case against the co-accused persons beyond any shadow of doubt, in circumstances---Appeal was allowed and co-accused persons were acquitted by setting aside conviction and sentences recorded by Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable dent in the veracity of the prosecution version could be taken into consideration for giving its benefit to the accused, not as a matter of grace rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 302, 428, 429, 395, 109, 148 & 149---Qatl-i-amd, mischief by killing or maiming animal of the value of ten rupees, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, dacoity, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged that he along with co-accused persons, while armed with deadly weapons assaulted on complainant party, made firing upon them, due to which four persons of the complainant party died---In the present case, accused was saddled with the role of making a fire short with .12-bore gun on the person of deceased father of complainant---Subsequent to the arrest of accused, .12-bore gun was recovered on his pointation---Medical evidence revealed that the dimension of injuries on the person of deceased father of complainant reflected that the same had been caused with a weapon having .12-bore caliber, which commensurated with the recovery from accused-appellant---Investigating Officer had opined that it was talk of the town that accused-appellant with one unknown accused had committed the murder---Witnesses of the ocular account remained consistent that accused-appellant had made fire-shot upon deceased/father of complainant and there was nothing on record to discard their statements to that extent---Dimension of injury on the person of deceased coupled with recovery of .12-bore gun further established link of accused with the occurrence---Statements of both the prosecution witnesses of the ocular account to the extent of accused-appellant seemed to be reasonable, trustworthy and confidence conspiring---Reports of the concerned quarter regarding bloodstained earth showed its origin was detected as human blood---Prosecution had succeeded in bringing home guilt against accused-appellant, in circumstances---Accused had been ascribed the role of single fire-shot upon the deceased and had not been ascribed any fire shot on rest of the deceased person---Although .12-bore gun was stated to have been recovered from accused-appellant during the course of investigation, however, report of Forensic Science Laboratory was negative---Said facts fell within the ambit of mitigation---Sentence of death awarded by Trial Court was modified to imprisonment for life by the High Court.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

Abid Saqi, Mudassar Farooq, Sohail Afzal Khan and Muhammad Usman Cheema for Appellants.

Saeed Ahmad Sheikh, Additional Prosecutor General for the State.

Rai Bashir Ahmed for Appellant/ Complainant (in Criminal Appeal No.1011) and for Petitioners (in P.S.L.A. No. 114 of 2014).

2019 Y L R 1254

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Tariq Saleem Sheikh, JJ

UMAR SHAHZAD and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 217, 84 and 516 of 2017, heard on 22nd January, 2019.

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

----S. 9(c)---- Possessing narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that 83 packets of charas weighing 100-kilograms and 17 packets of opium weighing 18-kilograms were recovered from the vehicle of accused persons, mostly concealed in the secret cavities of the car---Complainant separated 10-grams narcotic out of every packet for chemical analysis and secured the remaining bulk of both the items through distinct sealed parcels---Prosecution produced three witnesses including complainant to prove the charge against accused persons---Depositions of the said witnesses showed that they were inconsistent in respect of the manner in which the raid was conducted and accused were apprehended---Witnesses also differed on the sizes of the recovered packets---Despite the fact that the car being the most vital evidence, was not produced at trial---Samples and the remaining bulk were sealed with the stamp having the monogram M.A. but there was no explanation as to what it stood for---If they denoted initials of some name, but complainant had not given any reason why he did not put his own monogram on the seals---Witnesses deposed that after drawing samples, complainant put the remaining bulk in four plastic bags and sealed them---None of the witnesses could explain as to where those bags came from although they were specifically asked about them---Said circumstances made the prosecution case extremely doubtful---Documents placed on record by accused depicted that official witness was inimical towards his family---With that background, possibility of false implication could not be ruled out---Complainant had deposed that 83 packets of charas and 17 packets of opium recovered from the accused persons and he separated 10-grams from every one of them and prepared 100 representative sealed samples and secured the remaining bulk in four bags---Official witness had testified that he deposited the case property with the Moharrar---However, said witness neither mentioned the name of the Moharrar nor the total number of parcels which he handed over to him---Head Constable/official witness had deposed that he handed over 100 sealed parcels to constable for onward transmission to the office of the Chemical Examiner---Said witness neither acknowledged receipt of charas and opium from Investigating Officer nor confirmed their safe custody---In the present case, prosecution had produced consolidated reports of 83 samples of charas and 17 samples of opium which did not meet the legal requirements and the same could not be treated as a conclusive proof of the recovery of narcotic substances from the accused persons---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

Akhtar Iqbal v. The State 2015 SCMR 291; Akhtar Ali v. The State 2009 PCr.LJ 50; Ihaan Ullah v. The State 2018 YLR Note 93 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

James Joseph for Appellant (in Criminal Appeal No.217 of 2017).

Rana Muhammad Arif Kamal Noon for Appellant (in Criminal Appeal No.84 of 2017).

Rao Sajjad Ali for Appellant (in Criminal Appeal No.516 of 2017).

Shahid Aleem, Additional Prosecutor General with Inspector Ahmad Yar and Qaiser/ASI for the State.

2019 Y L R 1290

[Lahore]

Before Jawad Hassan, J

MUHAMMAD BASHIR KHAN---Petitioner

Versus

Mst. NAZIA HASSAN and others---Respondents

W.P. No.51138 of 2017, heard on 14th February, 2019.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 17 ---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11---Suit for recovery of dower---Res judicata, principle of---Applicability---Scope---Rejection of plaint---Scope---Wife filed suit for recovery of deferred dower---Wife in an earlier suit, had claimed the decree of haq mehr in question---Application for rejection of plaint by husband on the ground of res judicata, was dismissed---Validity---Family Court, on conclusion of trial, had only granted the decree of maintenance allowance to the minors, whereas the prayer regarding haq mehr in question was not acceded to---Wife had, at the relevant time, remedy of appeal available under the law but she failed to avail the same and as such judgment and decree passed by Family Court had attained finality---Subsequent suit claiming haq mehr in question was barred by principle of res judicata---Constitutional petition was allowed and plaint of wife was rejected, in circumstances.

Muhammad Ramzan Shahid v. Additional District Judge Samundri and 2 others 2017 CLC 1272 and Mst. Sibghat Iqbal v. Muhammad Ishaque Nadeem 2017 CLC 329 ref.

Imran Muhammad Sarwar Malik for Petitioner.

Malik Israr Hussain Khokhar for Respondents.

2019 Y L R 1299

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

BUSHARA GHIAS---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and others---Respondents

Writ Petition No.9471 of 2014, decided on 16th January, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Direction by Ex-officio Justice of Peace---Scope---Petitioner contended that on the application of the respondent, under Ss.22-A & 22-B, Cr.P.C., Ex-officio Justice of Peace had wrongly directed the SHO to record his version and proceed further in accordance with the law---Record evinced that respondent lodged said application alleging therein that the petitioner along with her accomplice while armed with different weapons trespassed in his house after breaking and started demolishing his house in order to take possession of the same---Report and para-wise comments were requisitioned from the SHO concerned, which showed that both the parties belonged to the same family and there was a dispute of property between them for which, civil suits were pending adjudication---Station House Officer had also reported that no alleged occurrence had taken place and respondent wanted to involve the petitioner in false litigation---Respondent had not produced any cogent evidence in support of his allegations---Record showed that Justice of Peace had passed a mechanical order, by not even considering the police report---Respondent had not approached the court with clean hands and apparently had withheld and concealed the material facts---Justice of Peace was not obliged to call for the police report, but once the police report was called for, the Justice of Peace could not ordinarily brushed the same aside---Impugned order was set aside in, circumstances.

Khizer Hayat and others v. Inspector General of Police (Punjab) Lahore and others PLD 2005 Lah. 470; Khalid Anwar v. Ex Officio Justice of Peace Lahore and 3 others 2013 PCr.LJ 684 and Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and 3 others 2014 PCr.LJ 1146 rel.

Muhammad Shoaib Khokhar for Petitioner.

2019 Y L R 1332

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

BHOORA---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.4897-B of 2018, decided on 11th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(1)(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Female accused---Extra-judicial confession---Scope---Complainant lodged FIR against unknown accused persons as dead body of his brother was found lying in the drainage , however, later two witnesses tendered the evidence that the petitioners ( two in number; one male and the other female) had made extra-judicial confession before them (witnesses)---Said two witnesses were real brothers of the deceased, but they did not react at all to the confessional statements of the petitioners and calmly saw them leaving, one after the other, without even moving an inch---Both the brothers had not mentioned in their statements that the accused held some weapon when they visited them to confess their guilt about the murder of the deceased which could have precluded them (said witnesses) from apprehending the petitioners---Conduct of the said witnesses was not confidence inspiring or natural---Prosecution relied on equally fragile evidence of two other witnesses, who were real nephews of the complainant, who did not say a word as to presence of some light at the place or having seen the petitioners together in the night of occurrence---If the petitioners had allegedly made a confession before the witnesses, there was no need to record the statements two days later, which only pointed towards the presumption that the statements recorded under S. 161, Cr.P.C., with respect to alleged confession of the petitioners, were manipulated---Evidentiary value of such type of evidence i.e. evidence of last seen and extra judicial confession would be determined by Trial Court at appropriate stage---Forensic Science Report showed that the sleeping pills, allegedly recovered from the lady petitioner, hardly connected the lady petitioner with the crime complained of---Recovery of a motorcycle from male petitioner, could be used, at the most, for corroboration of main evidence, but by itself it could not be a basis for conviction---Contention of the prosecution that both petitioners had pointed out the place of occurrence , the said memo of pointation was irrelevant and inadmissible as nothing was discovered as result of such pointation---Place of occurrence as well as the place of throwing the dead body were already in the knowledge of witnesses prior to the pointation by the petitioners--Mere involvement in a heinous offence was no ground for refusing bail to an accused who otherwise became entitled to the concession of bail---Both the petitioners were previous non-convict and never involved in any other case and were behind the bars since their arrest---Investigation was complete and they were not required for further investigation, therefore, their further incarceration would not serve any useful purpose---Case of the female petitioner was covered under first proviso to S.497(1), Cr.P.C.---Case of both the petitioners called for further inquiry as envisaged under S.497(2), Cr.P.C.---Petitioners were admitted to bail, in circumstances.

Rahat Ali v. State 2010 SCMR 584; Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932; Abid Mehmood v. State 2017 SCMR 728; Allah Ditta v. The State and others 2011 SCMR 184; Ijaz Ahmad and another v. The State 1997 SCMR 1279 and Shah Nawaz v. The State 2005 SCMR 1899 ref.

Muhammad Javed Iqbal and Ch. Muhammad Manzoor for Petitioner.

Sarfraz Khan Khichi, Deputy Prosecutor General with Afzal, SI for the State.

2019 Y L R 1346

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

HAQ NAWAZ---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 345 and Murder Reference No.70 of 2014, decided on 20th February, 2019.

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

----Ss. 302(b), 365-B & 376---Qanun-e-Shahadat (10 of 1984), Art. 129, Illus. (g)---Qatl-i-Amd, kidnapping and rape---Appreciation of evidence---Medical evidence---Benefit of doubt---Accused was charged for committing murder, rape and kidnapping---Trial Court variously sentenced accused, maximum being death sentence but acquitted him for charge of rape---Validity---Site-plans revealed that occurrence had not taken place on road as claimed by eye-witnesses but had rather taken place in cotton crop and blood-stained earth as well as crime empty was also taken into possession from said cotton crop---Investigating officer admitted during cross-examination that when he reached place of occurrence, dead body of deceased was lying in cotton crop and it was taken into possession from said cotton crop---Investigating officer, at the time of visit of place of occurrence had not found any motorcycle as being under use of said three eye-witnesses at the spot---Such motorcycle under use of three eye-witnesses was neither produced before investigating officer nor before Trial Court---Deceased was real brother of complainant and cousin of prosecution witnesses but they neither identified dead body of deceased at time of post-mortem examination nor they were mentioned as being present near the dead body at time of preparation of inquest report---Statements made by such eye-witnesses failed to receive any independent corroboration or support and witnesses had failed to prove their presence at spot at time of occurrence---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Rafiq v. State 2014 SCMR 1698; Nasrullah alias Nasro v. The State 2017 SCMR 724; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Javed v. The State 2016 SCMR 2021; Hashim Qasim and another v. The State 2017 SCMR 986 and Muhammad Akram v. The State 2009 SCMR 230 ref.

(b) Criminal trial---

----Chance witness--- Scope--- Chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a sheer chance as in ordinary course of business.

Javaid Iqbal Bhatti for Appellant.

Shahid Aleem, Additional Prosecutor General for the State.

Ch. Pervaiz Akhtar Gujjar for the Complainant.

2019 Y L R 1362

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

HAKIM HUSSAIN and others---Petitioners

Versus

The STATE and others---Respondents

Crl. Misc. No.6955-B of 2018, decided on 11th January, 2019.

Criminal Procedure Code (V of 1898 )---

----S. 497---Penal Code ( XLV of 1860 ), Ss. 419, 420, 468, 471& 381---Cheating by personation, cheating and thereby dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document known to be forged, theft by clerk or servant of property in possession of master or employer---Bail, grant of---Non-bailable offences; minimum sentence to be considered at bail stage---Scope---Pendency of civil litigation between the parties---Effect---Allegation against the petitioners ( two in number ) was that they , after stealing documents regarding a tractor belonging to the complainant, got the tractor registered in their name---Validity---Tractor in question , as per prosecution story, was purchased on installment and there was a dispute regarding its ownership---Complainant himself had filed a declaratory suit against one of the petitioners even prior to the registration of the present case, which was still pending adjudication---Statement of functionary of the Excise and Taxation Office, recorded under S. 161, Cr.P.C, showed that tractor in question was registered in the name of the petitioners---Petitioners were behind the bars since their arrest and investigation had been finalized and the allegations against them were yet to be proved through evidence---Further detention of the petitioners would not serve any useful purpose---Petitioners were previous non-convict---Case of the prosecution was entirely based upon the documentary evidence and relevant record which had already been collected and seized by Investigating Officer, hence there was no apprehension of tampering with prosecution evidence---Offences under Ss.420 & 471, P.P.C. were bailable while offences under Ss. 468, 381 & 419, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---While dealing with the question of bail, Court was to consider the minimum aspect of the sentence provided for the alleged offence---Petitioner was admitted to bail, in circumstances.

Tariq Bashir and others v. The State PLD 2005 SC 34; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

Sh. Muhammad Rahim for Petitioner.

Sarfraz Ahmad Khan Khichi, Deputy Prosecutor General and Aslam Javaid ASI for the State.

2019 Y L R 1381

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No.3047 of 2014, decided on 3rd January, 2019.

Punjab Pre-emption Act (IX of 1991)---

----S. 13--- Talb-i-Muwathibat, perfor-mance of---Requirements---Pre-emptors were required to prove that alleged informer did possess definite information with regard to sale of suit land---Alleged informer did not know the names of persons who were talking about the sale nor he could disclose the date of the mutation or the number of the same---Non-performance of Talb-i-Muwathibat would result in extinction of right to enforce pre-emption---Informer was not present at the time of mutation and he was not witness to the transaction---Statement of informer was not believable, in circumstances---Courts below had rightly declined to accept the statement of informer or plea of alleged information on the given date---Impugned sale was made in June 2004 and mutation was attested during same month---Informer had claimed knowledge of sale on 19-09-2004 about three months later---Material evidence had been withheld in the present case---Informer had failed to establish having actually received information of sale on the given date---Material contradictions in the statements of witnesses of pre-emptors were on record---Second witness of Talb-i-Muwathibat was not produced in the Court---Pre-emptors had failed to prove Talb-i-Muwathibat---Revision was dismissed in circumstances.

Ch. Amjad Hussain for Petitioner.

Hafiz Khalil Ahmad for Respondent.

2019 Y L R 1385

[Lahore ]

Before Muhammad Waheed Khan, J

RAHEEL ANWAR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.374-J of 2014, heard on 6th February, 2019.

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

----Ss. 302(b), 392 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Withholding important evidence---Effect---Accused were charged for committing robbery and murder of daughter of complainant---Prosecution had produced three witnesses comprising complainant/father and sisters of deceased to prove the charges against the accused persons---Evidence recorded by said three witnesses before the Trial Court showed that there was no direct evidence available with the prosecution regarding the alleged incident---Complainant was just an informer of the alleged incident whose statement set the machinery of law into motion and nothing beyond that, and the same was the position of her two daughters/ witnesses---Evidence of all the three witnesses hardly advanced any purpose for the prosecution---Complainant/father of deceased and other witnesses/sisters of the deceased had stated that they collected keys from neighbour and unlocked the house of the deceased---Said neighbour was neither associated in the investigation nor she made any statement before the Investigating Officer or before the Trial Court---Neighbour was the most important witness of the incident, at least to tell the circumstances as to who left the keys of the house with her and who visited the house of deceased prior to the alleged occurrence---Statement of said neighbour should have been recorded by the Investigating Officer---Said neighbour remained out of scene which was a serious lapse on the part of the investigating agency---Adverse inference as required under Art. 129(g) of Qanun-e-Shahadat, 1984 could fairly be drawn that had the witness been examined, her evidence would have been unfavourable to the prosecution---In cross-examination, the complainant had admitted that the house in which the occurrence took place was owned by husband of the deceased---Earlier, deceased was married with the brother of her husband but the husband of deceased was never associated in the investigation---Scaled site plan, did not mention names of accused persons---Circumstances established that there was no direct evidence available against the accused persons and prosecution case hinged upon the circumstantial evidence and in such case, strong evidence was required to connect the accused with the commission of crime---No piece of evidence, was compatible with the guilt of the accused persons and it would not, thus, be safe to maintain the findings of conviction on such evidence---Major discrepancies existed in the prosecution evidence creating serious dents in its authenticity and in such like situation, it became incumbent upon the court to extend the benefit of doubt in favour of the accused---Appeal was allowed and accused were acquitted in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Jaffar Ali v. The State 1998 SCMR 2669 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of stolen articles from accused persons---Reliance---Scope---Record showed that the car allegedly stolen from the house of the deceased and motorcycle allegedly used in the crime were recovered on joint disclosure of all the three accused persons---Record transpired that one of the recovery witness while appearing before the Trial Court had admitted during course of cross-examination that recovery proceedings were conducted by the Investigating Officer while sitting in the police station---Said witness had stated that he did not remember even the date of recovery proceedings and admitted that currency notes allegedly recovered from the accused persons were procured through their father---Recovery of stolen articles allegedly affected from the accused persons was of no consequences in circumstances---Conviction could not be based solely on the ground of such recovery as there was no direct or other circumstantial evidence available in the case. [

(c) Criminal trial---

----Joint recovery----Admissibility---Joint recovery was not admissible in evidence.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Identification of stolen articles and gold ornaments---Scope---Complainant had identified the stolen articles, which was unbelievable, as it was basically the womenfolk, who could recognize the things allegedly belonged to the deceased and it was not the job of the complainant, who otherwise, while making statement had never stated in the supplementary statement that he could recognize the gold ornaments and other stolen things---Such identification of stolen articles was inconsequential.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence would confirm the ocular evidence with regard to the seat of injuries, its duration, nature of injuries and kind of weapon used for causing such injuries---Medical evidence could not connect the accused with the commission of crime.

(f) Criminal trial---

----Circumstantial evidence--- Scope---Prosecution in a case of circumstantial evidence had to prove complete chain of events---If one ring (ingredient) of chain was missing then whole evidence would be discarded and prosecution case would fall on ground.

Muhammad Ahsan Bhoon and Ch. Riasat Ali for Appellant.

Nemo for Complainant.

Ms. Tahira Parveen, District Public Prosecutor for the State.

2019 Y L R 1404

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD YOUSAF---Appellant

Versus

MEHMOOD AHMAD---Respondent

R.S.A. No. 77 of 2016, heard on 14th February, 2019.

Civil Procedure Code (V of 1908)---

----O. XVIII, R. 8---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Evidence, recording of---Procedure---Improvements had been made in the evidence by the parties---Evidence, as a whole should be considered and dilated upon---Trial Court had adopted pick and choose methodology which was not warranted under the law---Evidence in totality had to be accepted or rejected---Evidence had been relied upon by the Trial Court beyond the pleadings ---No issue with regard to readiness and willingness of the parties germane to fulfilment of their part of agreement was framed by the Trial Court---Trial Court in a sketchy manner without discussing the evidence had disbelieved the defendant---Evidence, in the present case, was recorded through local commission but same did not bear certificate of Presiding Officer which was illegality on the part of Trial Court---Evidence was to be recorded by the Presiding Officer or under his dictation and in case evidence was recorded by a local commission then same should be under supervision and in presence of Presiding Officer---Presiding Officer was to give a certificate that evidence had been recorded in his presence by the local commission with consent of the parties---Impugned judgments and decrees passed by the Courts below were set aside and case was remanded to the Trial Court with the direction to frame issue with regard to readiness of the parties to fulfill the terms and conditions of agreement of sale and record evidence and decide the matter afresh---Second appeal was allowed, in circumstances.

Malik Muhammad Azeem for Appellant.

Rana Jahanzeb Akhtar and Naeem Sadiq for Respondents.

2019 Y L R 1454

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

FAISAL MAHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.5520-B and 5607-B of 2013, decided on 5th June, 2013.\

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon, common intention and abetment---Bail, refusal of---Prosecution case against accused persons was that they killed three persons by making fire shots and injured two others---Contention of first accused was that he was named in the crime report with the specific role of making firing, however, due to plea of alibi taken by him, complainant roped him in the case as an accused of abetment---Accused persons had earlier committed murder of son of deceased and were declared proclaimed offenders in the said case---Accused had persuaded deceased to enter into compromise in the said case and on his refusal committed murder of three persons and injured two others---Deceased had moved an application, five days prior to the occurrence, to the SHO concerned; wherein all accused persons were nominated with specific apprehension and hatching of conspiracy with all its details---Deceased had, before his death, moved thirty eight applications to different police officers wherein apprehension to his life and other family members was agitated---Prosecution department, on an inquiry, found the contents of applications moved by deceased as correct and Inquiry Officer recommended for placing the concerned SHO and DSP under suspension, as well as, initiation of departmental action with recommendation of major penalty---Apprehension showed in the applications was subsequently materialized by the accused persons---Prima facie, sufficient material was available on record to saddle the petitioners with the liability during the course of trial---Petitions for grant of bail, being devoid of legal justification, were dismissed.

Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413; Syed Amanullah Shah v. The State and others PLD 1996 SC 241 and Qabil v. The State 2011 PCr.LJ 232 distinguished.

Ghulam Ahmed Chishti v. The State and another 2013 SCMR 385 rel.

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

----S. 497--- Bail--- Interference by superior courts after commencement of trial---Superior courts do not indulge in the matter of auxiliary nature qua rendering findings on the plausibility or otherwise of the prosecution version.

Gul Akbar v. The State 2007 SCMR 1798 and Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 rel.

(c) Criminal trial---

----Decision of criminal cases---Principle---Each criminal case has its own peculiar features and no hard and fast rule or criteria for the general application can be laid down in this respect.

Haji Muhammad Nazir and others v. The State 2008 SCMR 807; The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Imtiaz Ahmed v. The State 2001 SCMR 1334 rel.

Ali Zia Bajwa for Petitioner.

Muhammad Iqbal Bhatti for Petitioner (in Crl. Misc. No.5607-B of 2013).

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

Rai Khalid Parvez Nadeem for the Complainant.

2019 Y L R 1478

[Lahore]

Before Farooq Haider, J

IMRAN and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 257812-B of 2018, decided on 31st January, 2019.

Criminal Procedure Code (V of 1898 )---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(v), 337-L(2), 354, 452, 148 & 149--- Shajjah-e-Khafifa, Hashimah, hurt, assault or use of criminal force to woman with intent to outrage her modesty, house trespass, rioting, armed with deadly weapon, unlawful assembly---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Two versions---Scope---Main accused had already been admitted to bail---Allegation against one petitioner was that he gave blow of spade at right knee of the injured lady while the other petitioner allegedly caused injury at knee of yet another lady---Complainant contended that petitioners were not entitled to concession of bail as recovery of weapons was yet to be affected from them---Record revealed that FIR was lodged with the delay of seven days for which no plausible reason was forwarded---One petitioner and his son had received injuries during the occurrence, both were medically examined on the same day after preparation of injuries statements---Police received Medico-Legal Certificates the same day but inspite of that, Police, by joining hands with the complainant party, suppressed said injuries, which fact was sufficient to establish malafide intention on the part of prosecution; so the prosecution had not come with clean hands; ultimately police registered cross-version against the complainant party on the application of the said petitioner---Police, during investigation, did not verify the cross-version yet it was a case of two versions and it would be determined by the Trial Court after recording evidence that as to which party was the aggressor, however, such scenario ipso facto brought the case of the petitioners within the ambit of further inquiry---Allegation against one petitioner , regarding giving blow of spade at right knee of injured lady , had not been supported by medical evidence as Medical Lego Certificate showed no such injury---Injury attributed to other petitioner was declared as Ghayer Jaifah Damiah attracting offence under S. 337-F(i), P.P.C., which was bailable---Record showed that main role of causing injuries to the injured persons including one attracting S.337-F(v), P.P.C., was attributed to co-accused said co-accused had already been admitted to post-arrest bail---Case of both the petitioners was at lower pedestal as compared to the said co-accused---Petitioners were behind the bars for more than four and half months, hence, no useful purpose would be served from recovery of sota or phorra---When recovery could not advance the case of prosecution, pre-arrest bail could not be refused merely for the purpose of recovery---Alleged offences did not fall within the prohibitory clause of S.497, Cr.P.C.---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Malik Muhammad Aslam v. The State and others 2014 SCMR 1349; Faisal Muhammad v. The State 2016 SCMR 2138 and Muhammad Javaid v. The State 1999 Cr.LJ 749 ref.

Humayoun Rashid along with Petitioners.

Haroon Rasheed, Deputy District Public Prosecutor for the State with Muhammad Jesal, S.I.

2019 Y L R 1488

[Lahore]

Before Shahid Jamil Khan and Muzamil Akhtar Shabir, JJ

SHAFIQUE AHMAD KHAN and 3 others---Appellants

Versus

DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY and 3 others---Respondents

I.C.A. No.125383 of 2017, heard on 16th January, 2019.

Land Acquisition Act (I of 1894)--

----S. 4---Land acquired by Development Authority for a housing scheme---Exemption policy for allotment of plots, violation of---Appellants claimed that land acquired by them fell in Block-D, while the plots allotted to them were located in Blocks C, E and F---Plea of appellants were that they were entitled to be allotted exempted plots in Block-D as per Exemption Policy---Validity---Clause 13 of Exemption Policy although required to provide plot or plots on or around the land previously owned by the owners but the said clause was directory and not mandatory in nature as no consequence had been given for its non-compliance---Appellants had accepted the terms and conditions of the allocation letter, acted upon the same by depositing entire amount to receive possession of allocated plots and thereafter waited for 10 years before agitating their grievance---Appellants, in circumstances were estopped from raising any objection at belated stage---Constitutional petition was barred by laches---Intra-Court Appeal, being devoid of force, was dismissed.

Lahore Development Authority through Director General, Lahore and others v. Sahibha Khanam 2016 SCMR 2143 distinguished.

Aamir Iqbal Basharat, Umair Yasin, Mian Nasir Shahda and Muhammad Anwer Khan Baloch for Appellants.

Salman Mansoor for Respondents.

2019 Y L R 1531

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MASRAFEEN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 277 of 2012, decided on 4th December, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, evidence of---Corroboration---Scope--- Prosecution case against appellant and co-accused persons was that complainant along with witnesses had seen them sitting in a car with one unknown person---Trial Court acquitted accused person whose acquittal had attained finality as neither the State nor the complainant had filed appeal against his acquittal---Common set of witnesses could be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence---Condition for relying upon the same set of witnesses as against the convict but rejecting them as against the acquitted co-accused was that such evidence must get independent corroboration on material particulars---Independent corroboration was not available against the appellant and his case could not be distinguished from the case of acquitted co-accused---Evidence of witnesses could not be relied for convicting appellant and had to be rejected to his extent as there was no distinction in their statements with respect to the roles of acquitted co-accused and appellant---Appeal against conviction was accepted and sentence recorded by Trial Court was set aside, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, evidence of---Independent corroboration---When the eye-witnesses had been disbelieved against some accused persons which were attributed effective roles then the same eye-witnesses could not be believed against other accused person, attributed a similar role, unless such eye-witnesses received independent corroboration qua the other accused person.

Imtiaz alias Taj v. The State 2018 SCMR 344 fol.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Un-witnessed occurrence---Benefit of doubt---Prosecution case against appellant and co-accused persons was that complainant along with witnesses had seen them sitting in a car with one unknown person---Complainant, during his cross-examination, admitted that his witnesses reached in the village on 14-4-2009 whereas he had earlier stated that witnesses had seen the appellant riding a car on 13-4-2009---Complainant further admitted that if a person was boarding a car and its lights were on then the person sitting in the car could not be identified by anyone standing in front of it--- High Court observed that had the witnesses been truthful and had stated before the police and Trial Court whatever they had witnessed then contradictions would not have cropped up in their testimonies---Self-negating and contradictory statements of witnesses reflected that the witnesses were not truthful and were supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of un-witnessed occurrence against the appellant---Appeal against conviction was accepted and sentence recorded by Trial Court was set aside, in circumstances.

Imran alias Dully and another v. The State and others 2015 SCMR 155 rel.

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

----S. 302(b)---Qatl-i-amd--Circumstantial evidence---Principle---Prosecution was to provide all links in chain, where one end of the same touches the dead body and the other neck of the accused.

Fiaz Ahmad v. The State 2017 SCMR 2026 rel.

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

----S. 302(b)--Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Recovery witness, non-association of---Complainant and his witness stated that butcher's knife was got recovered from the house of co-accused persons, which was placed under a cot and appellant was not resident of the said house---Recovery of butcher's knife could not be believed as the same was not made from a place which belonged to appellant nor was under his exclusive possession---Investigating officer did not join any witness of the locality during the recovery, which was clear violation of S.103, Cr.P.C.---Recovery of butcher's knife could not be used as incriminating evidence against appellant, being evidence which was obtained through illegal means and was hit by the exclusionary rule of evidence---Appeal against conviction was allowed and sentence recorded by Trial Court was set aside, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Appellant, according to the complaint, had earlier injured his brother (deceased) by causing a fire shot and for the same a case was registered against appellant---Evidence with respect to the motive was not supported by any other witness during trial---Complainant, during his cross-examination, admitted that the said occurrence with respect to the motive had been settled and a compromise was effected between the deceased and appellant---Appeal against conviction was allowed and sentence recorded by Trial Court was set aside, in circumstances.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

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

----S. 302(b)---Qatl-i-amd--- Medical evidence--- Evidentiary value--- Un-witnessed occurrence--- Medical evidence by its nature and character could not recognize a culprit in case of an unobserved incidence---Conviction could not be upheld on the basis of medical evidence alone, as all other pieces of evidence against appellant had been disbelieved and discarded---Appeal against conviction was allowed and sentence recorded by Trial Court was set aside, in circumstances.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(i) Criminal trial---

----Benefit of doubt---Scope---While giving benefit of doubt it is not necessary that there should be many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit has to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Rana Muhammad Nadeem Kanjoo for Appellant.

Sarfraz Khan Khichi, Deputy Prosecutor General for the State.

Mudassar Altaf Qureshi for the Complainant.

2019 Y L R 1548

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

FATEH MUHAMMAD and others---Petitioners

Versus

SAFDAR ALI alias ZAFAR ALI and others---Respondents

Civil Revision No. 3354 of 2010, heard on 27th November, 2018.

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

----S. 12---Suit for specific performance of agreement to sell---Limitation---Power of attorney---Cancellation of---Transfer of property on behalf of attorney---Scope---Power of attorney had to be strictly construed---Agent, in the present case, was not competent to alienate the suit property through sanction of oral sale mutation---Defendants had terminated the agency and alienation of suit land through sanction of mutation, was neither justified nor valid---Agent was aware of condition as well as withdrawal of his authority---Present suit had been filed after four years and five months which was time-barred---Courts below had failed to appreciate the material available on record in its true perspective---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Noor Alam through L.Rs. and another v. Muhammad Bashir and another 2015 CLC 1675 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 rel.

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

----S. 42---Registration Act (XVI of 1908), S. 49---Suit for declaration on the basis of unregistered sale agreement---Maintainability--- Unregistered sale agreement was neither a document of title nor it created right or interest in the subject matter---Declaratory suit on the basis of such document was not maintainable.

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

----S. 115---Revisional jurisdiction of High Court---Where can be invoked.

Revisional jurisdiction of High Court under section 115 is invoked only in the cases wherein the lower Courts have exercised the jurisdiction not vested in them by law or they failed to exercise it so vested or it was exercised in an illegal manner or that some material irregularity was committed, but in a case wherein it is found that the findings of the subordinate Courts were suffering from misreading and non-reading of evidence or that the conclusions drawn was in absolute disrespect to the law and facts of the case, High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts.

Shumal Begum v. Gulzar Begum 1994 SCMR 818 rel.

Muhammad Shahid Tassawar Rao for Petitioner.

Muhammad Ijaz Lashari for Respondents.

2019 Y L R 1570

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MAIRAJ DIN and others---Petitioners

Versus

MUHAMMAD AZAM and others---Respondents

Writ Petition No. 29695 of 2012, decided on 13th October, 2014.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Ejectment petition---Denial of relationship of landlord and tenant---Scope---Petitioners/tenants contended that the demised property was Shamlat-e-Deh and they were in its occupation since the year 1960---Respondent/ landlord contended that he, along with other legal heirs, had a valid title over the demised premises---Validity---Petitioners had failed to establish their claim, regarding Shamlat-e-Deh, through cogent and confidence inspiring evidence--- Petitioners, admittedly, filed independent suit for declaration which was dismissed for non-production of evidence---Respondent, on the contrary, in order to establish his claim over the demised premises, produced Fards Jamabandys, Form PT-10 and receipts of payment of property tax and there was nothing on record in the rebuttal---Petitioners, merely on the basis of electricity and sui gas bills etc., could not legitimize their possession over the demised premises as owners because a tenant could also get installed such connections in his name---Record revealed that presently respondent, along with others, had a valid title of the demised premises and in absence of anything contrary to the same, petitioners' possession over the property would be presumed as of a tenant---Appellate Court after due appreciation of the evidence available on record had rightly arrived at a conclusion that relationship of landlord and tenant existed between the parties ---Constitutional petition was dismissed accordingly.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 ref.

Waqar-ul-Hassan Butt for Petitioners.

2019 Y L R 1591

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD NASIR MUNEEF QURESHI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12957-B of 2013, decided on 11th October, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 201---Qatl-i-amd, rioting, armed with deadly weapon, common intention and causing disappearance of evidence or giving false information to screen offender---Bail, refusal of---Prosecution case was that the complainant along with his son was present in his house when his son received a phone call and told him that his friends had called upon him and he while riding in a car with them left the house---Complainant, at 11:30 p.m., received a phone call that his son was found dead and on his statement FIR was lodged---Complainant, on the same day came to know that as a matter of fact it was the petitioner who himself committed murder of his son by making firing and thereafter apprised complainant with a different story based on twisted facts---Petitioner was a senior police officer, who was posted in the same district at the relevant time---Name of petitioner was not incorporated in the crime report but soon after the occurrence the same was mentioned through supplementary statement coupled with the statements of prosecution witnesses, who unanimously supported the prosecution version against the petitioner that he had committed the occurence in a very cruel/reckless manner---Recovery of dead body near the residence of the petitioner coupled with the recovery of weapon of offence (official pistol) and positive report of Forensic Science Laboratory substantiated the prosecution case qua culpability of petitioner---Investigating officer fully accredited the accusations brought through supplementary statement while placing the name of petitioner in column No.3---Prima facie, reasonable grounds existed regarding culpability of petitioner to saddle him with the liability coupled with the fact that five prosecution witnesses were examined and as such petitioner was not entitled to concession of bail---Petition for grant of bail was dismissed, in circumstances.

Muhammad Khan v. Muhammad Basir and others 2003 SCMR 427; Noor Muhammad v. The State 2008 SCMR 1556; Abid Ali alias Ali v. The State 2011 SCMR 161; Muhammad Irfan and others v. The State and others 2012 PCr.LJ 625; Khalid Javed and another v. The State 2003 SCMR 1419 and The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265 ref.

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

----S.497---Bail---Tentative assessment---Only tentative assessment of facts is required while disposing of the ancillary matters.

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

----S. 497---Bail---Findings on the merit of case---Scope--- Superior courts avoid indulging in the ancillary matters like bail to render any finding which could prejudice the case of either party during the trial.

Muhammad Sadik and others v. The State 1980 SCMR 203; Tahir Hassan Hashmi v. The State 1990 SCMR 326; Gul Akbar v. The State 2007 SCMR 1798 and Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 ref.

Waqar Hassan Mir and Syed Muhammad Farhad Tirmzi for Petitioner.

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

Iqbal Bhatti for the Complainant.

2019 Y L R 1604

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

KHALID HUSSAIN---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 5693 of 2017, decided on 3rd December, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Scope---Suit for recovery of maintenance allowance was decreed by Trial Court and respondents were held entitled to recover maintenance at the rate of Rs. 3,500 per month each---Contention of petitioner was that Trial Court had decreed the suit without keeping in view his financial status---Validity---Petitioner himself had admitted in an earlier constitutional petition that he could pay Rs. 5000 per month to each of the minors as maintenance allowance till disposal of suit for maintenance---Petitioner was now estopped to take plea of financial status contrary to his earlier statement---High Court in its constitutional jurisdiction did not ordinarily reappraise the evidence and substitute findings of facts recorded by Trial Court nor did it give its opinion regarding quality or adequacy of evidence merely on the ground that another view was possible---Assessment and appraisal of evidence was the function of Family Court which was vested with exclusive jurisdiction and findings of fact determined by a court of fact could not be set aside by High Court in its constitutional jurisdiction---Constitutional petition, being devoid of merit, was dismissed.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

Ahsan Raza Hashmi for Petitioner.

2019 Y L R 1622

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

KHUDA BAKHSH and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 241/B of 2019, decided on 4th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860 ), Ss.337-A(2), 337-A(ii), 337-F(i), 337-F(v) & 337-L(2)---Shajjah-i-Khafifa, Shajja-i-Mudihah, Damiyah, Hashimah, hurt---Ad-interim pre-arrest bail, confirmation of---Mala fide of the complainant---Scope---Further inquiry---Scope---Cross-version of the occurrence was recorded but after about six days---Complainant alleged three injuries to one petitioner while other petitioner was attributed the injury declared as Shajja-i-Mudihah---Validity---Injury attributed to one petitioner had been declared as Shajjah-i-Khafifa, attracting offence under S.337-A(i), P.P.C. and same was bailable; another injury (regarding giving stick blow at the right leg of injured), though had been attributed to the same petitioner in the FIR but no such injury had been noted by the doctor in the Medico Legal Report and yet a third attributed injury was neither mentioned in the FIR nor in the statement of any witness---Only one injury to the extent of said petitioner which was bailable being Shajjah-i-Khafifa---Other petitioner had allegedly caused injury with blow of stick at the forehead of the complainant---Said injury had been declared as Shajja-i-Mudihah attracting offence under S.337-A(ii), P.P.C.---More than six persons from accused side received injures, which fact was supported by Medico Legal Certificates, but the complainant with mala fide intention suppressed said fact and thus, complainant in joint venture with police concealed actual mode of occurrence at the time of registration of the case---Though FIR was lodged after two days of the occurrence and till such time Medico Legal Certificates of injured persons of the accused party, including the petitioner, were already in possession of police yet said fact was not given any place in the FIR---Complainant party ( of the present case ) had been found as aggressor after investigation ---Such state of affairs, ipso facto, brought the case of both the petitioners into the ambit of further inquiry---Four months had already lapsed since the recovery of sticks from both the petitioners and blood disintegrated after about three weeks such recovery, therefore, would not advance the case of prosecution---Ad-interim pre-arrest bail already granted to the petitioners was confirmed, in circumstances.

Hamza Ali Hamza and others v. The State 2010 SCMR 1219 and Malik Muhammad Aslam v. The State and others 2014 SCMR 1349 ref.

Mian Fayyaz Hussain Kharal for Petitioners.

Malik Mudassar Ali, Deputy Prosecutor General with Muhammad Arshad, S.I. for the State.

2019 Y L R 1649

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

MUHAMMAD YAR and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.313 and Criminal Revision No.135 of 2011, heard on 6th March, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused committed murder of the daughter of the complainant---Record showed that complainant neither in written application nor in his statement before the court had disclosed anything against the accused persons---Investigating Officer recorded statement of two persons after about 26 days of the occurrence, who claimed themselves as eyewitnesses of the incident---Said witnesses were, however, not residents of near or around the place of occurrence rather residents of another district and at a distance of 200 kilometres from the place of occurrence---Said witnesses could not offer any plausible reason regarding their presence at the place of occurrence---No person appeared during investigation or trial to verify claim of their presence/visit at or near the place of occurrence at the relevant time---Said witnesses could not offer any plausible explanation with respect to delay in getting recorded their statements to the police---Said witnesses could not explain that if they had seen the occurrence why they did not make any hue and cry or report the matter immediately to the police---Witnesses had even accepted in their statements that they did not know accused persons and deceased and even were not having any knowledge about their names---Occurrence allegedly took place at night in the street where no source of light had been disclosed by the said eye-witnesses as to how they identified accused persons and deceased and how they came to know about their names was a mystery, which could not be answered by them---Said witnesses had claimed that they had seen the occurrence being committed in the street but no one from the said street had confirmed the fact---Neither said witnesses had pointed out alleged place of occurrence to the Investigating Officer nor any site-plan regarding the same was prepared---Circumstances and facts of the case showed that both the said witnesses had not seen the occurrence and they had just became the witnesses on asking of relative of the complainant party---Both the said witnesses therefore were not only interested and chance witnesses but were introduced and tutored---Nothing had been recovered from the accused persons during investigation---Identification of deceased was not probable and safe because the position of dead body as narrated by the Medical Officer in the post-mortem report and in her statement depicted that it was almost impossible to have its identification--- No evidence whatsoever had been brought on record with respect to dumping/ burying the dead body of the deceased by the accused persons---Circumstances established that prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused persons were acquitted, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chance witness---Scope---Chance witness could not be relied upon without strong corroboration from unimpeachable, independent and strong evidence.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; Arshad Khan v. The State 2017 SCMR 564 and Nazir Ahmad v. The State 2018 SCMR 787 rel.

Talat Mehmood Kakezai along with Appellants.

Malik Mudassar Ali, Deputy Prosecutor General for the State.

Ch. Haq Nawaz for the Complainant.

2019 Y L R 1696

[Lahore]

Before Asim Hafeez, J

Malik MUHAMMAD MUSTAFA---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Cooperative, Lahore and others---Respondents

Writ Petition No.18537 and C.M. No.3 of 2019, decided on 1st April, 2019.

Co-operative Societies Act (VII of 1925)---

----S. 64-A---Elections of Cooperative Society---Third term of President of Society, approval of---Judicial review---Scope---Petitioner was President of Cooperative Housing Society and was aggrieved of rejection of application by Registrar Co-operative Society to contest elections for third term---Validity---High Court, in exercise of judicial review could not dissect/dilate upon or carry out threadbare analysis of reports and observations---Registrar was vested with authority to consider and decide application by an individual member for seeking approval to contest elections for third term---Nothing had been placed on record to show appreciation of members, minutes of general meetings, audited accounts, affidavits and agreements allegedly executed for carrying out projected development---Petitioner was claiming special / extraordinary concession therefore, he was obligated to provide material/information to earn approval---High Court declined to interfere in order passed against petitioner as no case was made out for showing indulgence in exercise of judicial review and upset observations/ findings recorded--- Constitutional petition was dismissed in circumstances.

Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 rel.

Ch. Zafar Ullah for Petitioner.

Shahid Iqbal and Saira Tufail for Respondents Nos. 6 and 7.

2019 Y L R 1756

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD IRFAN through Special Attorney---Petitioner

Versus

NASEER AHMAD and others---Respondents

Civil Revision No. 1399 of 2014, decided on 13th December, 2018.

Civil Procedure Code (V of 1908)--

----S. 47---Specific Relief Act (I of 1877), S. 8---Suit for possession of immovable property--- Execution petition--- Objection---Plaintiff filed suit for possession of roof of a shop which was decreed---Execution petition was moved wherein judgment-debtor filed objection that he had made construction over the roof of the shop and decree could not be executed---Executing Court dismissed the objection petition but Appellate Court remanded the matter with the direction to deliver symbolic possession instead of physical possession of roof of the said shop---Validity---Judgment-debtor had never claimed to have raised any alleged construction over the roof of the shop in the written statement and that suit was not maintainable in its existing form---Even no compensation had been claimed by the judgment-debtor for the structure if any in his written statement---Executing Court had rightly concluded that the grounds raised in the objection petition could not be raised at the stage of execution as the subject-matter thereof was a pre-decretal matter which could have been entertained and adjudicated in the suit and not through execution petition---Appellate Court had held that construction over the roof of the shop could not be demolished and only symbolic possession could be delivered---Appellate Court had modified the decree which was for physical possession to a decree for symbolic possession in execution petition---Appellate Court had committed error of law and travelled beyond the jurisdiction while modifying the order of Executing Court or converting the decree in a decree for symbolic possession--- Questions pertaining to the pre-decretal matters were to be raised in defence during the trial and could not be allowed to be raised in execution proceedings---Executing Court could not go behind or beyond the decree---Decree passed in favour of decree-holder had attained finality and judgment-debtor could not be allowed during execution proceedings to raise pre-trial matters---Alleged decree was not for symbolic possession rather it mandated delivery of physical possession of the suit property---Judgment-debtor was bound to comply with the direction contained in the decree---Claim of construction could not be entertained during the proceedings for execution of decree---Executing Court was bound to execute the decree strictly in the terms provided therein---Pre-trial questions if not raised during the trial or in the appeal could not be permitted to be urged as objection to the execution of decree---Impugned order passed by the Appellate Court was without jurisdiction and suffering from legal error and same could not be approved---Order passed by the Executing Court was restored and that of Appellate Court set aside---Appeal was allowed, in circumstances.

Mst. Razia Bibi v. Muhammad Sharif and others PLD 2011 Lah. 450 distinguished.

Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Limited and 2 others 1994 SCMR 22; Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 and Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary C and W Department 2002 SCMR 122 rel.

Adnan Saeed Chaudhry for Petitioner.

Muhammad Zakria Ghumman for Respondents.

2019 Y L R 1825

[Lahore]

Before Rasaal Hasan Syed, J

The COOPERATIVE MODEL TOWN SOCIETY through President---Petitioner

Versus

The PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others---Respondents

Writ Petition No.40097 of 2015, decided on 5th March, 2019.

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

----Art. 131 (1)---Punjab Industrial Relations Act (XIX of 2010), S. 42---Grievance petition---Summoning of witness---Requirements---Application for summoning of witness were dismissed on the ground that it did not mention any specific purpose or fact to be proved through the said witness---Validity---Court was justified to inquire as to the relevance of the witness for proving any material fact, which had not been disclosed in the application for summoning of witness---Relevant documents had already been made part of the record of the case---Petitioner had not been able to show the relevancy of the witness in context with alleged documents---Orders passed by the Courts below did not suffer from any error of law---Constitutional petition was dismissed, in circumstances.

Muhammad Ejaz Jamal for Petitioner.

2019 Y L R 1862

[Lahore]

Before Muzamil Akhtar Shabir, J

TANVEER SALAMAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 945 of 2019, decided on 10th January, 2019.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance---Non-filing of suit for restitution of conjugal rights---Effect---Suit filed by wife was decreed by Family Court with the condition that she would be entitled to recover maintenance allowance in case of 'Abadi'---Appellate Court modified the decree and held that wife was entitled to recover maintenance allowance without any condition---Validity---Husband's claim that wife was disobedient and consequently her entitlement to recover maintenance allowance was required to be proved through some confidence inspiring evidence---Husband did not make any attempt to rehabilitate the wife in his house by filing a suit for restitution of conjugal rights---Wife had claimed that she was not being paid maintenance for quite some time, therefore, it could not be concluded that she was a disobedient wife and was not entitled to maintenance allowance---Husband failed to point out any misreading, non-reading or illegality in the judgment of Appellate Court---Constitutional petition, being devoid of merits, was dismissed.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of maintenance allowance---Financial status of husband/father---Burden of proof---Husband/father was bound to prove his financial status/earning capacity and the burden of proving the same could not be shifted on the stranded wife.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles---Scope---Claim of recovery of dowry articles was concurrently decreed by the Family Court and Appellate Court---Plea of husband was that dowry articles, as claimed by wife, were beyond the paying capacity of her family as her father was a beggar and did not own any land---Validity---Custom of society was that parents give dowry articles to their daughters even beyond their financial capacity; it could not be assumed that the parents of wife had not given dowry articles to their daughter---Constitutional petition, being devoid of merits, was dismissed.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Findings of fact---Scope---High Court while exercising constitutional jurisdiction did not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by them, nor did it give its opinion regarding quality or adequacy of the evidence unless any misreading, non-reading of record or illegality was pointed out.

2019 Y L R 1872

[Lahore]

Before Sardar Ahmad Naeem andTariq Saleem Sheikh, JJ

MUHAMMAD YAHYA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 251618 of 2018, heard on 13th March, 2019.

(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 2300 grams of charas and wattak money in the sum of Rs. 480/- were recovered from the possession of accused---Investigating Officer had deposed that accused was produced before the Magistrate on the next day, whereas record revealed that the accused was produced before the Magistrate on the day of his arrest, who remanded him to judicial custody---Said contradiction was examined in that context, which made the prosecution case extremely doubtful---Accused had alleged specific mala fides against the police and had adduced documentary evidence to show that the police were inimical to him---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed, in circumstances and accused was acquitted by setting aside the sentence and conviction recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating doubt in a prudent mind about the guilt of the accused would entitle him to acquittal.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Kh. Muhammad Ajmal for Appellant.

Rana Sultan Mehmood Khan, Additional Prosecutor General for the State.

2019 Y L R 1895

[Lahore]

Before Muhammad Waheed Khan, J

ABDUL REHMAN ASHRAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.250761/B of 2018, decided on 19th March, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Pre-arrest bail, grant of---Benefit of doubt to be extended at bail stage---Scope---Accused was nominated in the FIR with the role that he, while entering into the house of deceased, subjected her to torture and inflicted kicks blow on her person because she was pregnant in consequence of illicit relations with him---Deceased was firstly taken to the house of co-accused, where his wife attended the deceased and later on she was shifted to hospital, where she died---Doctor, during post-mortem examination, found all the structures healthy and no sign of physical violence was identified on the body of deceased---No seminal material was found on vaginal swabs---No drugs/poison was detected in blood and stomach contents from the analysis of visceras---No witness was available with the prosecution to prove violence committed by the accused on the person of deceased while entering into her house---First investigation concluded that accused had not entered into the house of the deceased or subjected her to torture---Second investigating officer opined that no evidence was available with the prosecution regarding culpability of the accused---Co-accused had already been admitted to bail by the Trial Court---Investigation was complete and sending the accused behind bars, would not serve any beneficial purpose or seemed justified---Involvement of accused on the basis of motivated prosecution could not be ruled out---Benefit of doubt arising out of the prosecution story could be extended to accused at any stage of the case---Accused was admitted to pre-arrest bail, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Benefit of doubt arising out of the prosecution story was to be extended to accused at any stage of the case.

Zaigham Ashraf v. The State 2016 SCMR 18; Aamer v. The State PLD 1972 SC 277 and Manzoor v. The State PLD 1972 SC 81 rel.

Umar Hayat Bhatti along with Petitioner.

Muhammad Ikram Ullah Khan Niazi, D.P.G. for Respondent.

Abbas Ali Cheema for the Complainant.

2019 Y L R 1900

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

SABIR ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 19061 of 2018, decided on 24th December, 2018.

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

----S. 5 & Sched.---Suit for recovery of dowry articles---Trial Court partially decreed the suit and appeals filed by both the parties were dismissed---Validity---Husband while appearing in the witness box had admitted that wife was given dowry articles, which he returned to her before panchiat---Husband admitted that no receipt was written regarding return of dowry articles---Husband further deposed that no panchiat was held before return of dowry articles nor return of dowry articles was settled through panchiat---Husband's witness asserted that five days prior to return of dowry articles he had decided in panchiat about the same---Return of dowry articles through a third person was required to be in written form---Holding of panchiat and the return of dowry articles through the said panchiat was doubtful---Husband failed to point out any misreading, non-reading or illegality in the judgment of Family Court---Constitutional petition was dismissed accordingly.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 17, 18, 5 & Sched---Suit for recovery of dowry articles---Non-appearance of wife in witness box in person---Appearance through agent---Scope---Trial Court partially decreed the suit and appeals filed by both the parties were dismissed---Plea of husband was that wife did not appear in witness box to prove her stance---Validity---Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were not applicable to the family suits besides wife had been duly represented by her brother as her attorney, who appeared in the witness box on her behalf and stood the test of cross-examination---Non-appearance of wife in person in the witness box, was not fatal to her case.

(c) Constitution of Pakistan---

---Art. 199---Constitutional petition---Findings of fact---Scope---High Court while exercising constitutional jurisdiction did not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by the courts below nor did it give its opinion regarding quality or adequacy of the evidence merely on the ground that another view was possible.

2019 Y L R 1916

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannu and Sadiq Mahmud Khurram, JJ

ZAFAR IQBAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 654 of 2015, heard on 23rd April, 2019.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotic--- Appreciation of evidence---Benefit of doubt---Each sample was to be marked separate number---Report of test or analysis--Each sample to be analyzed separately---Prosecution case against accused was that police, on receiving spy information, apprehended the accused and got recovered 72 packets of charas weighing 86.400 kg from secret cavity of his car---Charas contained in 72 packets was recovered from possession of accused and the Investigating Officer on opening the same prepared seventy two samples but did not give any mark/identification as to from which packet which sample had been prepared so as to relate to its origin (from which packet it had been derived)---Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and contents of Form-II of the said Rules demonstrated that it was incumbent upon the investigator/forwarding agency to give specific number to each sample and the substance from which it had been prepared in order to relate to its origin---Likewise, it was compulsory for the Chemical Examiner to prepare a report with respect to each sample by specifically numbering them and giving details of full protocols of the test applied as mandated by R. 6, but said obligation was not fulfilled---Report of Chemical Examiner revealed that he had not analyzed each sample separately or issued separate report to determine that the alleged packets of narcotic, recovered from accused, were narcotic substance or not---Prosecution failed to prove the charge against the accused, in circumstances---Appeal was allowed.

Khuda Bukhsh v. The State 2015 SCMR 735 distinguished.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt goes to the accused not as a matter of grace but as of right.

Muhammad Mansha v. The State 2018 SCMR 772; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Azhar Mehmood and others v. The State 2017 SCMR 135; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230; Amin Ali and another v. The State 2011 SCMR 323; Arif Hussain and another v. The State 1983 SCMR 428 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Shahzad Hussain for Appellant.

Khalid Ibn-e-Aziz, Special Prosecutor ANF for the State.

2019 Y L R 1961

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

SHAUKAT ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.12901 of 2019, heard on 9th May, 2019.

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

----S. 9(c)---Possession of narcotic---Safe custody and transmission of samples---Appreciation of evidence---Benefit of doubt---Prosecution case against accused was that police, on receiving spy information, apprehended the accused and on his search recovered 1130 grams of heroin---Moharir deposed that complainant handed him over two sealed parcels said to contain heroin on 20/5/2016 and on 30/5/2016 he handed over one sealed parcel of sample to another police official for transmission to Forensic Science Agency---Said police official deposed that Moharir handed him over one sealed parcel on 30/5/2016 and he delivered it in the office of Forensic Science Agency on 3/6/2016---Report of Forensic Science Agency revealed that two parcels were received by its office; one was approximately of one gram and the other was of 1129 grams and that after analysis, the remaining portion was sealed and handed over to the submitting person---Statements of prosecution witnesses revealed that parcel of sample was not delivered to the Forensic Science Agency on the same day or next day---Said police official did not depose that after depositing the sample in Forensic Science Agency he brought back any remaining portion of said parcel or after bringing the same back handed it over to the Moharir or anybody else---Fact remained shrouded in mystery as to how the case property reached the court and whether it was the same case property---Moharir had stated that complainant handed him over two sealed parcels, however, complainant deposed that he had handed over the parcels of case property and samples to yet another police official---Prosecution failed to prove its case against the appellant beyond any shadow of doubt---Appeal was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Safe custody and transmission of samples---Scope---Safe custody of parcel of sample from point/date of recovery to its receipt in Forensic Science Agency and then production of case property in the court is mandatory---Recovery in narcotic cases is not mere corroborating piece of evidence rather it constitutes the charge and entails punishment.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

Ali Hussain Mohsin and Ali Aman Mohsin for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor-General for the State.

2019 Y L R 1974

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ANDLEEB RAZA---Appellant

Versus

MUHAMMAD NAZAR and another---Respondents

R.S.A. No.135 of 2009, heard on 5th March, 2019.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 (2), 79 & 80---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of contract---Agreement to sell---Requirements---Evidence of scribe, marginal witness and Expert opinion---Value---Plaintiff examined only one out of three marginal witnesses of agreement to sell---Contention of plaintiff was that one of the marginal witnesses had settled abroad while other had been won-over by the rival party---Suit was decreed concurrently---Validity---Agreement to sell immovable property was a contract enforceable by law, however, such agreement did not itself create interest, right or title in the suit property such being a document of financial liability was to be attested by two male or one male and two female witnesses---Execution of agreement to sell could only be proved in accordance with mode provided under Art. 79 of Qanun-e-Shahadat, 1984---Agreement to sell could not be proved until and unless two marginal witnesses of the same had been examined---Only one marginal witness of agreement to sell had been examined by the plaintiff in the present case; proper course for the plaintiff was to prove the signatures of a witness who was not available through a person familiar therewith---Requirements of Art. 80 of Qanun-e-Shahadat, 1984 were not complied with in the present case---Agreement to sell was not signed by the scribe and no consideration was paid before him---Scribe or anyone who did not put his signatures as marginal witness on the document required to be attested could not be considered as such---Report of Expert was a weak type of evidence and was not of conclusive nature---Expert's testimony recorded could not be treated as substitute of available direct evidence---Statement of Scribe, report of Expert and deed of power of attorney could only be treated as corroborative evidence but it could not be considered as substitute of required number of attesting witnesses---Admission made on behalf of defendant could not be applied to co-defendant---Agreement was to be proved in accordance with Art. 79 of Qanun-e-Shahadat, 1984; provision of Art. 79 was mandatory and without its compliance a document could not be used as evidence---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Second appeal was allowed, in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Muhammad Sarwar v. Salamat Ali 2012 CLC 2094; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Muhammad Abaidullah v. Ijaz Ahmed 2015 SCMR 394; Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654 and Iftikhar v. Khadim Hussain PLD 2002 SC 607 rel.

(b) Administration of justice---

----Where law had provided a procedure for doing a thing in a particular manner then same had to be done in that manner or should not be done.

(c) Administration of justice---

----Court should deliver justice which should not only be done but should be seen to have been done.

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

----Art.79---Execution of document---Proof---Provisions of Art.79, Qanun-e-Shahadat, 1984 being mandatory, non-compliance of said provision would render the document as inadmissible in evidence.

(e) Precedent---

----Judgment announced by a larger Bench should prevail, if subsequently a Bench comprising less number of Judges while ignoring the earlier view announced by larger Bench formed another view, but where after taking due notice of the judgment of the larger Bench, a different panorama was announced by the other Bench of the said Court even consisting of less Judges until holds the field has to be followed.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

Muqtedir Akhtar Shabir for Appellant.

Tanveer Bashir and Kashif Shahzad for Respondent No.1.

Respondent No.2 Ex parte (vide order dated 17.12.2015).

2019 Y L R 2028

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

MUHAMMAD SARFRAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.44-J and Murder Reference No.40 of 2013, heard on 5th December, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unseen murder---Benefit of doubt---Delayed FIR---Scope---Prosecution case was that complainant along with witnesses was sitting in the courtyard of his house---Accused, deceased's brother, came inside the house and made a straight fire shot which hit the deceased near his chin---Accused fled away from the spot while threatening the complainant and witnesses---Matter was reported to the police by complainant with an inordinate delay of more than twenty four hours---Complainant could not explain the delay in lodging crime report---Complainant admitted during the cross-examination that he along with his mother and sisters was residing separately in the house of his uncle and that his father had two marriages and he was residing all alone in his house where he had been done to death---Police constable, who escorted the dead body to the mortuary, stated in his cross-examination that foul smell of blood had filled the surrounding area from where the dead body was recovered; that people had told him about the dead body; which was on the cot and in sitting position---Draftsman reached at the place of occurrence after three days of the occurrence and he admitted in cross-examination that he also noticed the foul smell---Testimony of said witnesses suggested that no one from the prosecution witnesses was present at the scene of occurrence---Complainant stated that he did not touch the dead body or removed the blood but he had only put the dead body on the cot before the arrival of the police---Medical Officer observed few ants on the dead body of the deceased at the time of autopsy---Complainant further admitted that heirs of deceased got knowledge of his murder after two days of the occurrence---Delay of 18 to 36 hours in the post-mortem of the dead body indicated that the delay was caused to cook up a false story and to manage the eye-witnesses---Criminal appeal filed by accused was allowed, and accused was acquitted of the charge by extending benefit of doubt, in circumstances.

Muhammad Rafique v. The State 2016 SCMR 1698 and Shahbaz v. The State 2016 SCMR 1763 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Motive not established---Scope---Motive set up by the prosecution was that accused being real brother of deceased had sold out his agricultural land and wanted to grab his cotton factory---Complainant admitted during his cross-examination that the deceased was used to give financial support to the accused and that his children were living with the complainant---No dispute between the brothers could be established and no untoward incident had taken place prior to the occurrence---Motive of the occurrence could not be established, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Delay in sending recovered samples---Scope---Accused was arrested on 8/8/2012 and he got recovered a .30 bore pistol on 17/8/2012 which was sent to the office of Forensic Science Agency for its comparison with the empty secured from the place of occurrence, which was sent to Forensic Science Agency on 15/8/2012---Report of the Forensic Science Agency was positive---Empty was sent to the office of Forensic Science Agency after seven days of accused person's arrest---Empty remained lying in the Mall Khana for about one month and seven days, which had created serious doubt in its veracity---Positive report of the Forensic Science Agency lent no support to the prosecution version and was inconsequential, in circumstances.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(d) Criminal trial---

----Post-mortem examination---Object---Purpose of post-mortem examination is to ascertain the cause of death, number of injuries, locale of injuries, duration between injury and death and the kind of weapon used.

(e) Criminal trial---

----Benefit of doubt---Single doubt is sufficient to tilt the scale of justice in favour of accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Shafqat Raza Thaheem for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2019 Y L R 2096

[Lahore]

Before Asim Hafeez, J

MUHAMMAD IQBAL---Petitioner

Versus

MEMBER (JUDICIAL VII), BOARD OF REVENUE PUNJAB, LAHORE and others---Respondents

Writ Petition No.158064 of 2018, decided on 22nd March, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Evacuee property---Suit for declaration--- Maintainability--- Civil Court had no jurisdiction to determine or grant any declaration with regard to evacuee property---Plaintiff was an illegal occupant on the suit land owned by the Provincial Government---Conduct of plaintiff was not above board, in circumstances---Impugned judgments passed by the Courts below did not suffer from any legal defect, illegality or error of law---Right of plaintiff to claim declaration qua alleged claim of ownership had been adjudicated upon and determined by the Courts of competent jurisdiction conclusively which had otherwise attained finality---Constitutional petition was dismissed, in circumstances.

Saqib Mumtaz Rana for Petitioner.

2019 Y L R 2125

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

TAHIR MASOOD BUTT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 6774-B of 2019, decided on 25th February, 2019.

Criminal Procedure Code (V of 1898 )---

----S. 497---Penal Code (XLV of 1860), S. 489-F--- Dishonestly issuing a cheque---Bail, grant of---Business transaction between the parties---Effect---Cheque issued as guarantee---Scope---Absconsion---Effect---Petitioner allegedly used to purchase motorcycles from the complainant on credit basis and his cheque to the tune of Rs. 300,000/- was dishonored---Complainant contended that petitioner had lost relief not only for being remained absconded but also being involved in similar cases---First Information Report was lodged after considerable delay of almost twenty-seven days without any plausible explanation---Record did not establish that the cheque in question was issued for repayment of any loan or fulfilment of any financial obligation, which was a sine qua non to attract the provisions of S.489-F, P.P.C.--Narration of crime report made the same clear that there was business transaction between the parties---Complicity of the petitioner in the commission of alleged offence was necessarily a matter of further inquiry in terms of S.497, Cr.P.C ---Cheque was, admittedly, issued as a guarantee by the petitioner for the purchase of motorcycles, meaning thereby that there was civil liability of contractual obligation against the petitioner---No cash amount had actually been taken by the petitioner from the complainant---Offence under S.489-F, P.P.C. did not fall within prohibitory clause of S.497, Cr.P.C., so the grant of bail was rule and refusal thereof was an exception ---Refusal of bail on account of absconsion proceeded primarily upon a question of propriety but question of right prevailed over the question of propriety---Record revealed no conviction on the part of the petitioner in similar cases---Investigation was complete and petitioner was no more required to police for further investigation---No recovery had been effected from the petitioner, his further incarceration would not serve any useful purpose---Petitioner was admitted to bail, in circumstances.

Saeed Ahmad v. The State 2012 PCr.LJ 1293; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Ikram-ul-Haq v. Rana Naveed Sabir and others 2012 SCMR 1273 and Jafar Hussain alias Jojo v. The State 2008 PCr.LJ 1444 ref.

Ch. Anwar Tufail Warraich for Petitioner.

Muhammad Shabbir, D.P.G. for the State with Muhammad Nawaz, A.S.I.

2019 Y L R 2153

[Lahore]

Before Rasaal Hassan Syed, J

ASIM ALI---Petitioner

Versus

HIRA ASIM and others---Respondents

Writ Petition No. 20665 of 2019, heard on 25th April, 2019.

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

----Ss. 17-A, 17 & 14---Civil Procedure Code (V of 1908), S. 11---Interim maintenance allowance for children---Interlocutory order---Review of order of interim maintenance---Res judicata, principle of--- Applicability--- Scope--- Petitioner assailed order for payment of interim maintenance allowance being exorbitant--- Validity--- Held; Family Court had fixed interim maintenance allowance when the petitioner had not filed his written statement nor had he placed on record any evidence of his financial condition or any documentary evidence in support of actual educational fee of the children---Family Court did not have the opportunity to examine the documents in defence for an appropriate order in respect of interim maintenance allowance---Petitioner, after filing written statement and placing documentary evidence on record, could request the court for appropriate orders in respect of interim maintenance allowance---Family Court would not be denuded of its jurisdiction to pass appropriate orders to meet the ends of justice regarding (monthly) interim maintenance allowance--- Such assessment could be regulated by the court keeping in view the material which the parties respectively place on record---Such assessment if finally varied did not amount to review of the order nor did it attract the principle of res judicata---Legislature in its wisdom did not provide for an appeal against interim order for the payment of monthly maintenance allowance during the suit, therefore, any indulgence in the Constitutional jurisdiction would circumvent the intent of legislature which possibly could not be countenanced---Constitutional petition was dismissed accordingly.

Mst. Zohra lrshad and another v. Messrs S.K.&F. Company PLD 1981 SC 598 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Interlocutory order--- Interference can not be made in constitutional jurisdiction against interlocutory order unless the same on the face of it is without jurisdiction or otherwise void ab initio or is passed without legal competence.

Ms. Ayesha Liquat Butt for Petitioner.

Azhar Saeed Bhatti for Respondents.

2019 Y L R 2244

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Mst. NAZIA PERVEEN---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Criminal Miscellaneous No. 776-HB of 2019, decided on 1st March, 2019.

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

----S. 491---Habeas corpus petition---Custody of minors---Non-filing of counter-affidavit--- Effect--- Petitioner/ mother alleged that minors were snatched from her custody by their father---Petitioner had appended her affidavit along with the petition regarding correctness of contents---Respondent/father of minors had not filed counter affidavit to challenge the contents of the affidavit---Minor, aged 10 years, stated before the court that he worked at a motorcycle shop and did not go to school---Held, minor was deprived of motherly love and father had got the minor employed at a motorcycle workshop---Petition was allowed and custody of minors was handed over to the mother, in circumstances.

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

----S. 491---Habeas corpus petition---Custody of minors--- Parental jurisdiction--- Scope--- Welfare of minors---High Court, in such like case, while exercising of its powers under S.491, Cr.P.C. has to exercise parental jurisdiction and is not precluded in any circumstance from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physically or emotionally by reason of breakdown of the family tie between the parents.

Mirjam Aberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others 2018 SCMR 427 ref.

Abdul Khaliq Dogar with Petitioner.

Muhammad Siddique Dogar with Respondent No.2.

Adnan Latif, DDPP with Iqbal, S.I.

2019 Y L R 2307

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD ANWAR QURESHI---Appellant

Versus

The STATE and 7 others---Respondents

Criminal Appeal No. 373 of 2017, heard on 14th November, 2018.

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

----Preamble---Object, purpose and Scope--- Preamble of Illegal Dispossession Act, 2005 explicitly stipulates that its object is to protect lawful owners and occupiers against illegal or forcible dispossession from their immovable properties.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 and Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 rel.

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

----Ss. 3 & 9---Illegal Dispossession---Double jeopardy, principle of---Pendency of civil suit---Applicability---Complainant was aggrieved of acquittal of accused passed by Trial Court---Plea raised by accused persons was that FIR was already lodged and a civil suit was pending before another court---Validity---Aggrieved person was not barred from availing remedy under Illegal Dispossession Act, 2005 if he had got FIR registered under general law or vice versa---Concept of double jeopardy was attracted where accused had been tried by court of competent jurisdiction for offence charged and there was judgment or order of acquittal---Mere lodging of FIR and filing complaint under Illegal Dispossession Act, 2005 did not attract rule of double jeopardy---Pendency of civil litigation in respect of property did not bar filing of a complaint under Illegal Dispossession Act, 2005 and Trial Court had erred in holding otherwise---High Court set aside judgment passed by Trial Court and remanded matter to Trial Court for decision in accordance with law---Appeal was allowed in circumstances.

Tariq Khan Mazari and 3 others v. Government of Punjab through Secretary Industries and 3 others PLD 2016 SC 778; Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Regarding Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829; Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another PLD 1968 SC 101 and Dilber Khan v. Muhammad Ashraf PLD 2013 SC 171 rel.

Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; Abdul Hafeez v. Additional Sessions Judge-VII South Karachi and 2 others PLD 2009 Kar. 350; Judicial Review of Public Actions (Second Edition, pp. 690-1); Blackstone in his Commentaries, 69 (15th Edition, 1809); Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs Islamabad and others PLD 1998 SC 161; Regarding Pensionary Benefits of the Judges or Superior Courts PLD 2013 SC 829; Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956; Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another PLD 1968 SC 101; Income-Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Usman Sharif Khosa for Appellant.

Ansar Yasin, Deputy Prosecutor General for the State.

Malik Muhammad Saleem for Respondents Nos.2 to 8.

Date of hearing: 14th November, 2018.

2019 Y L R 2347

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan and Atir Mahmood, JJ

ZUBAIDA BE (Deceased) through L.Rs. and others---Appellants

Versus

Raja MUNIR AHMED and 3 others---Respondents

Intra-Court Appeal No. 179 of 2015 in Writ Petition No.9994 of 2010, heard on 11th June, 2019.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 19, 20 & 21---Respondent assailed order dated 31-12-2009 passed by Chief Settlement Commissioner / Notified Officer before High Court in exercise of Constitutional jurisdiction---Original allotment order dated 02-02-1952 was assailed in Constitutional petition which was set aside by authorities---Validity---Original allotment order was dated 02.02.1952 which was subsequently subject of Displaced Persons (Compensation and Rehabilitation) Act, 1958---High Court declared that Intra-Court Appeal was not competent as against such order, appeal, revision and review was competent---Intra-court appeal was dismissed in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 rel.

Mst. Wazir Begum and others v. Member, Board of Revenue/Chief Settlement Commissioner and others 2000 SCMR 989 and Basai v. Qaim Ali and 8 others PLD 2003 SC 325 ref.

Sheikh Zameer Hussain for Appellants.

Tanveer Iqbal Khan for Respondent No.1

Shaukat Rauf Siddiqui, Additional Advocate General, Punjab for Respondents Nos.2 and 3.

Date of hearing: 11th June, 2019

2019 Y L R 2379

[Lahore]

Before Muhammad Waheed Khan, J

Mian MUHAMMAD FAISAL RASHEED---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 5386-BC of 2019, decided on 6th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, cancellation of---Petitioner sought cancellation of pre-arrest bail granted to accused---Prosecution case against accused was that he had received certain sum of amount from the petitioner in the presence of witnesses with commitment to return the same---Accused thereafter issued a cheque in the presence of another witness but the said cheque was dishonoured by the Bank on its presentation---Huge amount was involved in the case and while lodging FIR petitioner had given the names of witnesses before whom the alleged amount was given to the accused---Both the said witnesses had in their statements recorded under S. 161, Cr.P.C. asserted that petitioner had handed over the said amount to the accused---Trial Court, while confirming ad-interim pre-arrest bail had passed a detailed order comprising of eight pages, in which it had not only discussed the facts and evidence of the case in detail but also imprinted the snaps of case diaries---Trial Court had not highlighted and identified any element of mala fide or ulterior motive on the part of the complainant or police towards the accused person, which was a condition precedent to award extraordinary relief in the shape of pre-arrest bail---Petition for cancellation of bail was allowed, in circumstances.

Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Hassan Iqbal Warriach for Petitioner.

Tariq Javed, District Public Prosecutor with Amjad ASI and Ijaz SI for the State.

Muhammad Akram Chaudhary with Respondent No.2.

2019 Y L R 2403

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUMSHAD alias IRSHAD alias SHADOO and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.30-J, 181 and Murder Reference No.6 of 2016, decided on 5th March, 2019.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with weapon, unlawful assembly---Appreciation of evidence---Prosecution case was that accused party while armed with deadly weapons assaulted on the complainant party, made firing upon them, due to which, brother of complainant died and two person sustained injuries---Motive behind the occurrence was that two days prior to the occurrence a scuffle took place between accused party with the deceased upon damaging the crops---Accused persons had nourished grudge and they after consultation with each other committed murder of deceased and caused injuries to two persons---To prove the ocular account, prosecution had produced three witnesses comprising complainant and injured persons---Complainant and both the injured witnesses were in agreement to the fact that it was the present accused-appellant, who, while armed with 12 bore gun/pump action made fire shot which landed on neck of deceased---Medical evidence lent support to the allegation levelled by the prosecution as well as firearm injury sustained by the deceased---All the three witnesses successfully faced the test of cross-examination and nothing came on record which could illicit the veracity and integrity of their depositions to the extent of role played by the present accused-appellant---No other material discrepancies were found in their statements---Said witnesses remained consistent during the course of cross-examination while deposing before the Trial Court regarding culpability of the accused-appellant---Eye-witnesses/injured, who had stamp of injuries on their person, also get support from the evidence of Investigating Officer, who prepared their injury statements soon after the occurrence and also by the Medical Officer--- Circumstances suggested that ocular account furnished by the prosecution was trustworthy and worth reliance---Record transpired that two persons from accused side had also received injuries in the incident---Prosecution had totally suppressed those injuries while lodging the crime report and even while deposing before the trial Court---Both the said injured were medically examined by the order of the Magistrate and their Medico Legal Reports were also exhibited by the defence side---Both the said injured also appeared before the Trial Court as defence witnesses, wherein they categorically deposed that it was the complainant party, who was the aggressor and they had been aggressed upon---Admittedly, the venue of occurrence was the premises belonging to the accused party but at the same time it was not found that the complainant party was carrying any weapon while approaching to the premises of accused party---Circumstances suggested that the present incident was not a result of pre-consultation or premeditation, rather it occurred at the spur of the moment and it was a sudden fight between the parties, in which one person lost his life and two persons from each side sustained injures---Provision of S. 302(c), P.P.C. was attracted, in circumstances---Appeal was dismissed, however, conviction and sentence from S. 302(b), P.P.C. was converted to S. 302 (c), P.P.C. and by maintaining conviction under S. 302(c), P.P.C., sentence was reduced from death to imprisonment for fourteen years.

Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Azmat Ullah v. The State 2014 SCMR 1178 and Zahid Rehman v. The State PLD 2015 SC 77 rel.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with weapon, unlawful assembly---Appreciation of evidence--- Medical evidence---Scope---Medical evidence was furnished by two Medical Officers---One Medical Officer, conducted postmortem examination on dead body of deceased, whereas the other doctor examined the injured witnesses---Firearm injury observed by Medical Officer on the dead body of deceased, lacerated wound at front lower right side of neck, was attributed to the present accused-appellant---Ocular version remained consistent about the said injury that it was sustained by the deceased from the hands of accused-appellant.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with weapon, unlawful assembly---Appreciation of evidence---Motive, proof of---In the present case, the complainant as well as injured witnesses had deposed in their statements that two days prior to the occurrence, a scuffle took place between accused-appellant and deceased upon destroying crop---Record showed that prosecution had not produced any independent witness regarding the previous scuffle nor had reported the matter to the police---Motive was not proved by the prosecution, in circumstances.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that 12-bore gun/pump action was recovered from the accused-appellant---Two crime empties of 12-bore gun were found wedded with the gun allegedly recovered at the instance of the accused-appellant---Report in that regard submitted by the Forensic Science Agency was positive---Parcels containing the empties and crime weapon were sent to the office of Forensic Science Agency after the arrest of the accused---Such items sent after the arrest of the accused carried no evidentiary value.

Naveed Ahmad Khawaja for Appellants (in Criminal Appeal

No.30-J-2016).

Hamanyun Rasheed Gujjar for the Complainant (in Criminal Appeal No.181 of 2016).

Ch. Ghulam Mustafa Deputy Prosecutor General for the State.

Date of hearing: 5th March, 2019.

2019 Y L R 2423

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD AFZAL and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 3949 of 2016, decided on 22nd March, 2019.

Civil Procedure Code (V of 1908)--

----O. IX, R. 13 & O. V, Rr. 17, 18 & 19---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Ex parte decree, setting aside of---Concealment of facts---Effect---Trial Court accepted the application for setting aside of ex parte decree but same was dismissed by the Appellate Court---Validity---Address of defendants given in the plaint was insufficient and vague for the purpose of service---No order for publication of notice could be made in circumstances---Defendants were never served with any process or summons---Plaintiff deliberately concealed the correct particulars of address and order for substituted service was obtained by concealment of facts and mis-representation---Impugned decree was obtained by fraud and misrepresentation by providing misleading information---Trial Court was kept in dark by withholding material information---Ex-parte decree was passed subject to deposit of remaining sale price within specified time limit---Decretal amount was never deposited within the prescribed time which resulted in dismissal of suit filed by the plaintiff---Ex-parte decree passed in favour of plaintiff had become redundant, in circumstances---Executing Court had no jurisdiction to allow extension of time or execute a redundant decree---Where execution of a document or wakalatnama was denied then onus to prove positive plea of alleged execution would be upon the person who had claimed its execution and raised positive assertion---Defendants had claimed to have acquired information of the impugned decree a week before the institution of present application and same had been reiterated in the deposition on oath---Present application which was filed within a week from the information secured was within time---Impugned ex-parte decree was even otherwise a nullity and ab initio void which was obtained through fraud---Trial Court had rightly concluded that decree in question was liable to be set aside---Impugned order passed by the Appellate Court was based on mis-reading of record which was set aside while that of Trial Court was restored---Trial Court was directed to initiate the de novo proceedings and decide the suit in accordance with law---Constitutional petition was allowed, in circumstances.

Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Nouroz Khan v. Haji Qadoor 2005 SCMR 1877; Muhammad Wahid and another v. Nasrullah and another 2016 SCMR 179 and Mst. Nusrat Bibi v. Muhammad Ashraf Mehr and others 2007 YLR 41 rel.

Ch. Muhammad Shafique and Mrs. Mutahera Younis for Petitioner.

Mian Abdul Saeed for Respondent No.3.

Date of hearing: 12th March, 2019.

2019 Y L R 2450

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

ASGHAR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.67, Criminal Revision No. 118 and Murder Reference No.20 of 2012, heard on 13th November, 2018.

(a) Criminal trial---

----Extra-judicial confessions--- Pre-requisites--- Proof--- Fundamental requirement of law is that extra-judicial confessions must be proved by evidence of a very high and unimpeachable character---For extra-judicial confession to be treated as relevant evidence it is requirement of law that it should not only be made but should also be truthful.

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

----Ss. 302(b) & 365---Qatl-i-amd and robbery---Appreciation of evidence---Extra-judicial confession---Recovery of dead body---Proof---Four accused persons faced trial out of whom two were acquitted and two were convicted and sentenced by Trial court to death and imprisonment for life---No memo of recovery of dead body was on record and there was nothing to ascertain whether dead body was recovered on joint pointing of accused persons or by witnesses themselves---Non-preparation of recovery memo of dead body created doubt in case of prosecution---Place from where dead body was recovered was easily accessible by people from locality but even at time of preparation of memo of pointation no person from locality was associated with proceedings in order to verify the same---No motive was mentioned at the time of recording of oral statement by complainant---Evidence of prosecution witnesses regarding extra-judicial confession by both the accused persons was also disbelieved---Evidence of motive could not be considered and prosecution failed to prove any motive to commit the occurrence---High Court set aside sentence and conviction awarded to accused persons by Trial Court and acquitted them of the charge---Appeal was allowed accordingly.

Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538 ref.

(c) Criminal Trial---

----Benefit of doubt---Principle---For giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in mind of a prudent man is available then such benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Zulfiqar Ali Sidhu and Ch. Salamat Ali Wains for Appellants.

Muhammad Ali Shahab, District Prosecutor General for the State.

Bashir Ahmad Khan Buzdar and Waseem Sarwar Khan for the Complainant.

Date of hearing: 13th November, 2018.

2019 Y L R 2476

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD SALEEM and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector (Revenue) and others---Respondents

Writ Petition No. 110-R of 2010, heard on 21st March, 2019.

(a) Pakistan Administration of Evacuee Property Act (XII of 1957)---

---S. 41---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 22 & 24---Allotment of evacuee land during restraining order---Cancellation of---Fraud---Suit for declaration---Ex-parte decree, implementation of---Bar on jurisdiction of Civil Court---Scope---Suit was filed without impleading Settlement Department which was ex parte decreed---Petitioners moved application for implementation of ex parte decree but Board of Revenue declared the alleged allotment order as bogus and land was ordered to be resumed in favour of the State---Validity---Petitioners maneuvered and succeeded in obtaining the alleged allotment order during restraining order---Alleged allotment order was bogus and false and based on fraud and misrepresentation---Fraud did vitiate the most solemn proceedings---Settlement Commissioner was not holding any unbridled authority to pass allotment order in violation of injunctive order of competent authority---Alleged allotment order was void ab-initio in circumstances---Civil Court had no jurisdiction to intrude in the realm of Settlement Department which had exclusive jurisdiction to adjudicate the matter and decide the same---Remedy before Civil Court was barred and if any decree was passed same would be without jurisdiction and nullity in the eye of law or void ab initio---No illegality or jurisdictional defect had been pointed out in the impugned order passed by the Board of Revenue---Constitutional petition was dismissed, in circumstances.

Qutubuddin and others v. Sardar Hidayat Ullah Khan Mokal and another 1976 SCMR 524; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Muhammad Sadiq (decd.) through L.Rs and others v. Mushtaq and others 2011 SCMR 239; Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468; Ghulam Rasul and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744 and Mst. Bilqees Barkat and others v. Member Board of Revenue J-V/CSC and others 2018 YLR 829 rel.

(b) Fraud---

----Fraud vitiates the most solemn proceedings.

(c) Administration of justice---

----Ill-gotten gain could not be perpetuated.

Mian Abdul Qaddus for Petitioners.

Waseem Iqbal Butt, A.A.G. for Respondents Nos. 1 and 2.

Muhammad Yaqoob Kanju for Respondent No.3.

2019 Y L R 2538

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

MUHAMMAD MAQBOOL-UR-REHMAN---Petitioner

Versus

PROVINCE OF PUNJAB through Collector/District Officer/ Revenue and 6 others---Respondents

C. R. No. 1292-D of 2010, heard on 18th June, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Suit for declaration and possession---Contention of plaintiff was that he was owner of suit property---Suit was dismissed concurrently---Validity---No specification of suit land had been mentioned in the plaint nor any site plan was annexed with the same---No decree could be granted in favour of plaintiff when ownership of suit property was not clear---In the present case, even encroachment allegedly made by the defendant was not identifiable from the pleadings or evidence of the plaintiff---Revision was dismissed, in circumstances.

Malik Muhammad Nawaz Khan for Petitioner.

Shamas Tabraiz, Assistant Advocate General, Punjab for Respondents Nos.1 to 5.

Ex parte Respondents Nos.6 and 7.

2019 Y L R 2547

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

ZEESHAN alias SANI and others---Appellants

Versus

STATE and another--- Respondents

Criminal Appeals Nos.670, 612 and Criminal Revision 324 of 2009, heard on 11th February, 2019.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), Ss. 161 & 342---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Examination of witnesses by police---Examination of accused---Plea of self-defence---Appreciation of evidence---Dying declaration---Scope---Witness, a close friend of deceased---Unnatural conduct of witnesses---Scope---Accused was charged for committing murder and injuring others---Trial Court had convicted the accused under S. 302(c), P.P.C. by holding that he had acted in exercise of his right of self-defence but exceeded the same---Father of deceased, while reporting the crime, had stated that his son had gone with two persons on motorcycle and he after their departure had followed them on another motorcycle with two persons---Complainant had allegedly seen the accused stabbing his son---Prosecution relied on statement of deceased recorded under S. 161, Cr.P.C. at the time when he was being shifted to the hospital---Doctor, in his statement before Trial Court, had explained that the condition of injured was critical and had also not confirmed that certificate on request of Investigating Officer was issued by him to the effect that injured was in a position to make statement before Investigating Officer---Facts showed that attempt was made by prosecution to improve its case by introducing statement of deceased in the form of dying declaration, which, in the circumstances, was un-reliable---Testimony of close friend of deceased was not reliable---Accused had alleged that the deceased was used to tease him for committing sodomy---Accused had, out of fear, started keeping a knife with him to save his honour---Accused, at the time of occurrence, was alone when complainant party came and forced him---Accused had in that situation, in exercise of his self-defence, caused injuries---Presence of complainant at the place of occurrence was highly doubtful as such his testimony was not worth reliance---Complainant party was consisted of six persons and in their presence accused could not have left the place of occurrence---Statements of witnesses clearly showed that they had concealed true facts of the case---Occurrence had not taken place in the mode and manner stated by the witnesses---Prosecution evidence was found un-reliable---Conviction could not be based upon statement of accused as it was to be believed or rejected in toto---Conviction recorded by Trial Court under S. 302(c), P.P.C. was not warranted---Accused was acquitted from all the charges, in circumstances.

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

---S. 342---Examination of accused---Scope---When the prosecution evidence itself is not reliable, conviction on plea of the accused is not justified.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Rana Muhammad Nadeem Kanjoo for Appellants.

Adnan Latif, DDPP for the State.

Khawaja Qaiser Butt and Ch. Faisal Aziz for the Complainant.

2019 Y L R 2576

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

NOOR AHMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.652-J of 2012 and Murder Reference No. 115 of 2011, heard on 15th November, 2018.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing thereon, as a result of firing three persons died---Motive for the occurrence was stated to be previous enmity---Record showed that prosecution case revolved around the statements of three witnesses including complainant---Said witnesses also stated the motive of the occurrence---Witnesses were brothers inter se and their relationship with the deceased was also on record---During cross-examination, complainant had admitted the existence of enmity and stated that there was allegation on them that they had committed the murder of nephew of the accused and a criminal case was registered against them---Statements of said witness showed that the accused were at a distance of about 1½ karams when they were firing indiscriminately and all the witnesses and the deceased persons were face to face with the assailants at that time---Perusal of the scaled and un-scaled site plans revealed that the occurrence took place on an open road---Witnesses had stated that the common object of the accused was that no one of the family of the deceased should escape---Said three witnesses were supposed to be the prime targets of the assailants---Statement of complainant showed that it was he who had deposed against the accused persons---In fact, all the three witnesses had been vigorously pursuing the case against the accused---Said witnesses had been nominated as accused in the case relating to the murder of nephew of the accused---Said witnesses had stated that all the accused were armed with rifles and neither there was any dearth of ammunition nor of intent and opportunity---Prosecution witnesses were not fired at---One of the witnesses had admitted in his cross-examination that all the witnesses were facing the accused at the time of the firing being made by them---Record transpired that none of the said witnesses even received a single scratch on their person---Evidently, the three deceased received eighteen entry wounds on their person---If the said three witnesses had been present then they would not have been spared, as the number of injuries on the persons of the deceased showed the degree of venom and design the killers had for the deceased---Said witnesses did not depose that they were fired at during any time of the occurrence and they all were saved in the midst of firing---Blessing them with such incredible consideration and showing such favour was implausible and opposed to the natural behavior of the accused---Circumstances suggested that it was all illogical that being perceptive of the fact that if the witnesses were left alive they would depose against them, the assailants did not cause any injury to them---Circumstances showed that said witnesses were not present at the time and place of occurrence thus the evidence of said witnesses had no worth and was to be rejected outright---Complainant had submitted a written application to Police Officer, wherein the time of the occurrence was recorded as 12.00 noon whereas, as per the endorsement made by the Police Officer, said application was received at 12.00 noon, which proved that the said application was just a compromised and fake document---Circumstances established that prosecution had failed to prove its case beyond any reasonable doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Dishonest improvements in statements of witnesses---Scope---In the present case, prosecution witnesses made dishonest improvements in their statements to bring the same in line with the ocular account and attributed specific injuries with specific seat to each of the assailants---Allegedly, all the assailants were standing close to each other and so were the victims and it was humanly impossible to discern who fired the shot and whose shot hit the deceased in a situation which was reigned by dread, chaos and pandemonium---Witnesses were duly confronted and they offered no explanation except a bare denial for the improvements made by them to their former statements recorded during the investigation of the case---Said improvements impeached the character of the witnesses and made them unworthy of being trusted. (c) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Delay in lodging the FIR---Effect---Record showed that matter was reported to the police at about 12.00 noon---Medical Officer, who conducted the postmortem on the person of deceased persons, had stated during his cross-examination that as soon as the bodies were produced he immediately conducted the postmortem without any delay on his part---However, the perusal of the report of the postmortem examination revealed that the postmortem of one deceased was conducted at 08.00 p.m. and that of the other at 08.30 p.m. after a delay of more than seven hours of registration of the FIR---Said fact clearly showed that the FIR was not lodged at the given time.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Test identification parade---Scope---In the present case, complainants had also relied upon test identification parade conducted with respect to co-accused---Facts remained that neither the name of said co-accused was mentioned in the written application nor any descriptive features through which he could be identified---Test identification parade had lost its authenticity and evidentiary value, in circumstances.

Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Recovery of weapon of offence from accused--- Reliance--- Scope--- Record showed that 7-MM rifle was recovered from accused-appellant, however, the said rifle was never sent to the Forensic Science Laboratory for its comparison with crime empties present at the spot---Recovery of 7-MM rifle was shown to be effected from co-accused---Report of the Forensic Science Laboratory revealed that two crime empties of 7.62 MM bore and one rifle of 7-MM bore were received---Evidently, the said two crime empties were of 7.62 MM bore whereas the rifle was of 7-MM bore, hence no comparison was made---Such recovery had no evidentiary value, in circumstances.

(f) Criminal trial---

----Medical evidence---Conviction---Scope---Conviction could not be made on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in a prudent mind was available then its benefit was to be extended to the accused not as a matter of concession but as of right.

Muhammad Akram v. State 2009 SCMR 230 rel.

Malik Muhammad Saleem for Appellants.

Muhammad Ali Shahab, District Prosecutor General for the State.

Syed Badar Raza Gillani for the Complainant.

2019 Y L R 2601

[Lahore]

Before Shahid Mubeen, J

BASHARAT ALI---Appellant

Versus

RIAZ NOON---Respondent

R.F.A. No. 207947 of 2018, heard on 8th May, 2019.

Civil Procedure Code (V of 1908)--

----O. XXXVII, R. 2---Limitation Act (IX of 1908), Art. 64-A---Summary suit on the basis of cheque---Limitation---Trial Court dismissed suit being time barred---Validity---Summary suit could be filed within a period of three years from the date when the debt became payable---Date on which last cheque was dishonoured should be the date when the debt became payable---Present suit was instituted after expiry of limitation---No illegality or material irregularity had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed in circumstances.

Najma Sugar Mills Ltd. v. Mega Trading Company through Chief Executive 2008 MLD 114 and Muhammad Farooq and others v. Abbas Lakadwala and others 2003 CLC 1879 rel.

Hafiz Jamil Ahmad Naqeebi for Appellant.

Ch. Nawazish Ali Basra for Respondent.

Zafar Rahim Sukhera, AAG on Court's call.

2019 Y L R 2617

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

SAJJAD HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.194-J of 2017 and Murder Reference No.24 of 2015, heard on 27th March, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Accused person was alleged to have murdered the sister of complainant by inflicting toka blows---Eye-witnesses were brothers of deceased and were chance witnesses because they were neither residents of the place of occurrence nor had any place of business there---No plausible reason was offered by the witnesses for meeting their sister because one day prior to the occurrence, they had met the deceased along with their parents---Prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal was allowed, conviction and sentence awarded to accused were set aside.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Non-production of material witnesss---Effect---Accused person was alleged to have murdered the sister of complainant by inflicting toka blows---Motive behind the occurrence, as alleged in the FIR, was that accused (brother-in-law of deceased) tried to develop illicit relation with the deceased and she reprimanded him---Husband of deceased was an important witness with regard to the motive but he was not associated with the investigation---No independent witness qua motive was brought in the witness box during trial---Prosecution was not able to substantiate the motive part of the occurrence---Appeal was allowed, conviction and sentence awarded to accused were set aside.

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

----S. 302--- Qatl-i-amd--- Medical evidence---Un-witnessed occurrence---Scope---Medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed---Medical evidence did not point out anything against any of the culprits---Medical evidence was supportive piece of evidence and relevant only if the primary evidence i.e. ocular account inspired confidence.

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Non-mentioning of condition of weapon in recovery memo.---Effect---Accused person was alleged to have murdered the sister of complainant by inflicting toka blows---Recovery of toka at the instance of accused, positive report of Chemical Examiner and Serologist were inconsequential for the reason that there was no mention in the recovery memo. that the toka was stained with blood---Appeal was allowed, conviction and sentence awarded to accused were set aside.

Irfan Ali v. The State 2015 SCMR 840 rel.

(e) Criminal trial---

----Witness---Chance witness---Scope---Testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time---Presumption under the law would operate about his absence from the crime spot---Testimony of chance witness may be relied upon, provided some convincing explanations, appealing to a prudent mind for his presence at the crime spot, are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Arshad Khan v. The State 2017 SCMR 564 ref.

(f) Criminal trial---

----Duty of prosecution---Scope---Prosecution had to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the defence.

(g) Criminal trial---

----Benefit of doubt---Scope---Single circumstance, creating reasonable doubt, regarding the prosecution case was sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Rehan Khalid Joiya for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Sh. Jamshed Hayat for the Complainant.

Khawar Siddique Sahi for the Complainant.

2019 Y L R 2670

[Lahore (Multan Bench)]

Before Anwarul Haq Pannun, J

MUHAMMAD NADEEM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 40 of 2013, heard on 13th March, 2019.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Examination of accused---Appreciation of evidence---Chance witness---Unnatural conduct of witnesses---Effect---Motive---Scope---Non-examination of material witness---Effect---Accused was charged for committing the murder of two persons---Eye-witness, during the night of occurrence, had been sleeping in the house of complainant while his family resided in a separate house---Complainant had claimed that deceased and his other son were sleeping in the 'Ehata' on the night of occurrence---Said son of complainant was given up as a witness---Claim of eye-witnesses was belied by the fact that accused could have been overpowered by the witnesses but none of the witnesses made any effort to rescue or intervene during the occurrence in order to save the life of any of the deceased persons---Motive for the occurrence, as claimed by complainant, was that accused had suspicion of illicit intimacy between the deceased persons---Internal and external vaginal swabs of deceased lady confirmed that they were stained with semen---Investigating officer stated during cross-examination that both the deceased had illicit relations; that place of occurrence was the residential house of accused; that murder was not pre-planned; that accused saw his sister with the deceased and in the heat of passion, due to sudden provocation, he took up the hatchet and murdered them and that accused had also taken the same stance during investigation---Deceased persons were done to death when they had indulged themselves in sexual intercourse without any legitimate relations---Trial Court, while disbelieving the version of prosecution, had only convicted and sentenced the accused on account of his plea which he had taken during investigation as well as while recording his statement under S. 342, Cr.P.C.---Accused, held, could not be convicted and sentenced on the basis of his plea taken while recording statement under S. 342, Cr.P.C. as it was the duty of prosecution to stand on its own legs and prove its case---Appeal was allowed, conviction and sentence inflicted upon the accused was set aside.

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

---S. 342---Examination of accused---Scope---Accused cannot be convicted and sentenced on the basis of his plea taken while recording statement under S. 342, Cr.P.C., as it is the duty of prosecution to stand on its own legs and prove its case.

Abdul Samad and another v. The State and another 2018 YLR 922 and Azhar Iqbal v. The State 2013 SCMR 383 rel.

Iftikhar Ibrahim Qureshi for Appellant.

Mirza Abid Majeed, D.P.G. for the State.

Nemo for the Complainant.

2019 Y L R 2692

[Lahore]

Before Muzamil Akhtar Shabir, J

Mst. SIDRA ASIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 232652 of 2018, decided on 22nd April, 2019.

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

----Ss. 17 & 25---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Custody of minor---Welfare of minor---Parental jurisdiction---Condonation of delay---Scope---Petitioner assailed order of appellate court whereby it had dismissed the appeal of petitioner, being barred by time---Validity---Court, in guardianship cases, exercised a parental jurisdiction as if it was in loco parentis to the minor---Parental jurisdiction could not be hampered with undue interference of technicalities---Application for condonation of delay in filing appeal in guardianship matters had to be decided keeping in view the welfare of minor even if the said ground was raised or not by the party---Order passed by appellate court, in the present case, was silent as to whether it had considered the aspect of welfare of minor or not---High Court set aside the impugned order and remanded the matter to the appellate court for rehearing and re-deciding the same afresh.

Shaukat Masih v. Mst. Farhat Parkash and others 2015 SCMR 731; Mst. Nadira Shahzad v. Mubashir Ahmad and others 1995 SCMR 1419; Malik Khizar Havat Khan Tiwana and another v. Mst. Zainab Begum and another PLD 1967 SC 402; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. Rubia Jilani v. Zahoor Akhtar Raja and 2 others 1999 SCMR 1834 and Naveed Munir v. Additonal District and Sessions Judge, Lahore and another 2011 MLD 1938 ref.

Syed Tahir Abbas Kazmi for Petitioner.

2019 Y L R 2696

[Lahore]

Before Abdul Maalik Gaddi, J

Ms. SARWAR MAI---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No.40 of 2019, decided on 26th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Procedure---Mitigating circumstances---Scope---Petitioner assailed order of Trial Court whereby it had imposed upon the petitioner half amount of surety bond as penalty---Petitioner contended that she stood surety for her brother who disappeared only for two dates; that she was a maidservant who worked in different houses to earn her livelihood and that she had not received any show-cause notice under S. 514, Cr.P.C.---Validity---Held, present was one of hardships and there were mitigating circumstances---Accused had already been convicted and sentenced to life imprisonment and was behind bars to serve out sentence awarded by the Trial Court---Application was allowed and impugned order was set aside to the extent of surety amount.

Sheikh M. Mushtaq for Applicant.

Khadim Hussain, A.P.G. for the State.

2019 Y L R 2737

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD ABDULLAH--- petitioner

Versus

EVACUEE TRUST PROPERTY and another---Respondents

Civil Revision No.1269-D of 2010, decided on 14th June, 2019.

(a) Evacuee Trust Properties (Management and Disposal) Act (XII of 1975)---

----Ss. 8 & 14---Suit for declaration---Evacuee property---Determination of---Bar on the jurisdiction of civil Court---Scope---Plaintiff sought declaration that suit land was not evacuee property---Suit was dismissed concurrently---Validity---Chairman Evacuee Trust Property Board had the jurisdiction to determine the status of a property as to evacuee property or not---Present dispute could not be brought to the Civil Court nor Civil Court could assume jurisdiction to entertain the same to adjudicate as to whether suit land was evacuee property or not---Party should approach the relevant forum prescribed by law to seek such clarification---Civil Court could entertain suit if its jurisdiction was not expressly or impliedly barred by law---Jurisdiction of Civil Court, in the present case, had been expressly barred by law--- Even order of Chairman Evacuee Trust Property Board could not be questioned in the Civil Court---Findings recorded by the Courts below did not suffer from any error of law or jurisdiction---Revision was dismissed, in circumstances.

Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313; Evacuee Trust Property Board and others v. Ahmed and others 2004 SCMR 440; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Evacuee Trust Property Board through Deputy/Assistant Administrator, Evacuee Trust Property, Peshawar v. Ali Bahadur PLD 2011 SC 126 and Khurshid Ahmad and others v. Rana Mumtaz Ahmad and others 2016 SCMR 679 rel.

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

----S. 9---Civil Court could entertain suit if its jurisdiction was not expressly or impliedly barred by law.

Muhammad Masood Bilal for Petitioner.

Malik Jaffar Kamboh, Ms. Fouzia Kausar Bhatti, Assistant Attorney General for Pakistan for Respondents.

2019 Y L R 2770

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza and Shahid Karim, JJ

Syed ABBAS MOHY-UD-DIN and 3 others---Appellants

Versus

NATIONAL HIGHWAY AUTHORITY through Chairma and 3 others---Respondents

R.F.A. No. 238 of 2017, decided on 16th April, 2019.

Land Acquisition Act (I of 1894)--

----Ss. 18 & 31---Reference to court---Compensation---Acceptance of award without protest--- Effect--- Appellant sought enhancement of compensation amount and respondent through cross-appeal sought dismissal of reference application---Validity---'Qabaz ul Wasol' did not reflect recording of protest by the appellant at the time of receipt of compensation--- Appellant in the reference application did not mention that the amount of compensation was received by him under protest---Authority in its written reply before trial court had taken a specific objection regarding the maintainability of the reference application on the ground that the amount of compensation was received by the appellant without recording his protest---Reference application filed by the appellant was not maintainable---Appeal filed by appellant was dismissed and that of Authority was allowed, consequently judgment and decree passed by the Trial Court was set aside.

Government of NWFP and others v. Akbar Shah and others 2010 SCMR 1408 and Land Acquisition Collector (M-I) National Highway Authority, Islamabad and 4 others v. Zahir Shah and 5 others 2016 YLR 462 rel.

Muhammad Ashraf Qureshi for Appellants.

Malik Muhammad Tariq Rajwana and Barrister Kashif Rafiq Rajwana for Respondents Nos. 1 to 3.

2019 Y L R 2782

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD ARIF CHOUDHARY---Petitioner

Versus

MUZAFFAR HUSSAIN and others---Respondents

Civil Revision No. 577 of 2019, decided on 27th June, 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 agreement to sell---Temporary injunction, grant of---Necessary ingredients---Application for temporary injunction to the extent of restraining encashment of cheques was dismissed by the Trial Court but Appellate Court restrained the defendants to encash the said cheques subject to furnishing Bank guarantee by the plaintiff---Validity---Specific dates had been given in the cheques and if defendants were to be restrained from encashing them then same could not be presented for payment after expiry of fixed period---Requirement of prima facie case in the matter of temporary injunction was not the only condition but other ingredients and factors like balance of convenience, irreparable loss, conduct of the parties, nature of suit, time likely to be absorbed in it and workability and reasonableness of the orders proposed to be passed should also be present---If by issuing an injunctive order the intention was to relieve a party from certain oppression then care was to be taken at the same time to avoid oppression for the other party---Plaintiff could not be permitted to avoid the performance of the commitment in the garb of protective order of the Court---Impugned order passed by the Appellate Court had created a balance while granting ad interim injunction by requiring the plaintiff to furnish Bank guarantee for the cheque amount---Buyer in a suit for specific performance should voluntarily deposit the balance sale price to show his bona fide and non-deposit of such amount or waiting for the final decree to deposit the price would reflect the bona fide of the purchaser adversely---Impugned order passed by the Appellate Court was fair, reasonable and just and no error of law had been committed---Revision was dismissed, in circumstances.

Messrs Bin Bak Industries (Pvt.) Ltd. and another v. Friends Associates (Regd.) and others 2003 SCMR 238 distinguished.

Manzoor Ahmad and 6 others v. Hamid Shah Gilani and another 1997 SCMR 1443; Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 and Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362 ref.

Mudassar Saghir for Petitioner.

Mehroz Aziz Khan Niazi for Respondents.

2019 Y L R 2800

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

ADDITIONAL COMMISSIONER (REVENUE), RAWALPINDI DIVISION and others---Respondents

Writ Petition No. 2167 of 2011, heard on 23rd May, 2019.

(a) Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---

----Rr. 4 (5) & 7---Land Reforms Regulation, 1972 (M.L.R. 115), Para. 25---Punjab Land Revenue Act (XVII of 1967), Ss. 8 & 9---Ejectment of tenant--- Revisional jurisdiction of Commissioner--- Scope--- Suit for ejectment of tenant was decreed by the Tehsildar/Assistant Commissioner and appeal was dismissed by the Collector but Additional Commissioner (Revenue) set aside the said orders---Contention of petitioners was that Additional Commissioner had no authority to entertain the revision petition---Validity---Revisional jurisdiction did vest with the Commissioner who might at any time of his own or on a petition made in that behalf to him by any aggrieved tenant within fifteen days of the impugned order call for the record of any case disposed of by or proceedings pending with any Assistant Collector or a Collector subordinate to him---Right of revision was available only to a tenant and not to landlord---Order passed by the Commissioner would be final---Revision petition, in the present case, was entertained by Additional Commissioner who did not figure in the scheme of Rule 7 of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---Additional Commissioner had been bestowed with the authority to exercise any of the powers and discharge any of the duties conferred or imposed on the Commissioner---Additional Commissioner could decide the revision petition and order passed by him could not be termed as coram non judice---Impugned order as well as order of Collector and Assistant Collector could not sustain being in oblivion of R. 4(5) of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---Assistant Collector was bound to dispose of the complaint within sixty days of its receipt and failure to decide the same within stipulated period would attract the automatic consequences provided in the said R. 4(5) of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---Matter should have been transferred in the same manner as in the original Court---Proceedings conducted by the Assistant Collector after expiry of sixty days were of no effect as he had become functus officio on expiry of sixty days and he was precluded to lay its hand on the said suit after the target date---Impugned order was illegal and unlawful and superstructure built thereon would automatically fall to the ground---Impugned orders passed by the revenue authorities were set aside being illegal and unlawful---Ejectment suit should be deemed to be pending before the Collector concerned who should proceed with the same accordingly---Constitutional petition was allowed, in circumstances.

S. M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others 2013 SCMR 338 ref.

Imtiaz Gohar and others v. Additional Commissioner and others 1990 MLD 1912 distinguished.

(b) Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---

----R. 7--- Revisional jurisdiction of Commissioner--- Scope--- Revisional jurisdiction did vest with the Commissioner who might at any time of his own or on a petition made in that behalf to him by any aggrieved tenant within fifteen days of the impugned order call for the record of any case disposed of by or proceedings pending with any Assistant Collector or a Collector subordinate to him.

Muhammad Younis Bhatti for Petitioners.

Ch. Shamas Tabraiz, Assistant Advocate-General for Respondents Nos.1 to 3.

Javed Akhtar Bhatti for Respondents Nos. 4-A to 13, 15-A to 19, 21, 23 to 26, 27-B to 29 and 31 to 38.

Ex parte for Respondents Nos.14, 20, 27-A and 30.

2019 Y L R 2831

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

MUHAMMAD YASIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.93-J of 2014 and Murder Reference No.43 of 2013, heard on 14th November, 2018.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 265-C---Qanun-e-Shahadat (10 of 1984), Art. 151---Qatl-e-amd and common intention---Appreciation of evidence---Benefit of doubt--- Surprise evidence--- Chance witness---Scope---Prosecution case was that accused persons entered the house of deceased and killed him and his wife---Prosecution in order to prove its case produced complainant and her son, who claimed to be present on the spot along with three other eye-witnesses---Statement of complainant, recorded after the occurrence, revealed that she had not named her son as a witness of the occurrence---Complainant's son admitted that prior to appearing before the Trial Court he had not appeared before the police ever during the investigation and had not made any statement about the occurrence---Law provided protection against exposing the parties to such kind of "surprise evidence"---Purpose of enacting S. 265-C, Cr.P.C. was to provide a safeguard regarding introduction of such kind of evidence---Article 151, Qanun-e-Shahadat, 1984 provided a mechanism for impeaching the credit of a witness by producing the proof of his former statements inconsistent with any part of his evidence liable to be contradicted---Complainant had stated that the reason for her presence at the house of deceased was that deceased had sold his land one month prior to the occurrence and due to this reason relations between deceased and his first wife had become strained---Complainant had stated in her private complaint that deceased had sold the land twenty one days prior to the occurrence---Complainant had stated in her statement on the basis of which FIR was recorded that deceased had sold his land ten days prior to the occurrence---Complainant was herself unsure of the dispute between the two wives of the deceased---Complainant never mentioned the date of her arrival in the house of deceased---Complainant admitted that she resided at a distance of one kilometer from the place of occurrence---Complainant's reason for presence at the place of occurrence was the settlement of dispute between the wives of deceased---Complainant's reason was unbelievable for the reasons that first wife of deceased was not present during the negotiations; that the complainant had no affinity with the first wife of deceased; that in ordinary nature of things complainant could not have been rooting for the cause of settling the dispute; that no earlier communication between complainant and first wife of deceased was solicited and that complainant stated before trial court that relationship between deceased persons was hostile and then shifted her stance and deposed that she was present in the house to settle dispute between deceased and his first wife---Statement of complainant did not receive any independent corroboration or support---Appeal was accepted and conviction and sentences awarded by trial court were set aside---Murder reference was answered in the negative.

Muhammad Rafiq v. State 2014 SCMR 1698 ref.

Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention--- Recovery of weapon---Scope---Recovery of .12 bore gun from accused was held to be inconsequential where report of Forensic Science Laboratory revealed that three crime empties of .12 bore and one gun of .30 bore were received on the same day at the Forensic Science Laboratory.

Nasrullah alias Nasro v. The State 2017 SCMR 724 fol.

(c) Criminal trial---

----Recovery of crime weapon---Evidentiary value---Scope---Recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value and loses its significance.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character cannot recognize a culprit in case of an unobserved incident.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(e) Criminal trial---

----Benefit of doubt---Benefit of a single circumstance creating doubt in the mind of a prudent person is to be extended to an accused not as a matter of concession but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Syed Badar Raza Gillani for Appellants.

Muhammad Ali Shahab, District Prosecutor General for the State.

Ch. Faqir Muhammad for the Complainant.

2019 Y L R 2852

[Lahore]

Before Jawad Hassan, J

TAHIR MIRZA---Petitioner

Versus

SALEHA MEHMOOD, DCO and others---Respondents

Criminal Original No.53450 of 2019, decided on 30th September, 2019.

Constitution of Pakistan---

----Arts. 4, 5 & 25---Punjab Overseas Pakistanis Commission Act (XX of 2014), S. 7---Right of individuals to be dealt in accordance with law---Obedience to the Constitution and law---Equality of citizens---Functions of the Overseas Pakistanis Commissioner---Scope---No one, on the basis that he is an overseas Pakistani, can take the law in his hand and is above the law---Article 4 of the Constitution of Pakistan, makes it clear that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, to enjoy the protection of law and to be treated in accordance with law---No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law---Citizens of Pakistan defined in Art. 260 of the Constitution of Pakistan whether inside or outside Pakistan, (wherever they may be) are protected by Art. 4 of the Constitution of Pakistan---Value placed by the Constitution of Pakistan on the inalienablilty of the right to protection of the law for all can be guaged from the fact that this right is further extended to every other person for the time being within Pakistan---No person can be compelled to do anything or forbidden from any action unless the law specifically provide for the same---Article 5(2) of Constitution of Pakistan states that obedience to the Constitution and law is the inviolable obligation of every citizen, wherever he may be and of every other person for the time being within Pakistan---Both the citizens in and outside the Pakistan are protected under the Constitution of Pakistan without any discrimination as provided under Art. 25 of the Constitution of Pakistan---Article 25 of the Constitution of Pakistan also states in unequivocal terms that all citizens are equal before law and are entitled to equal protection of law---No one is above the law and everyone has to follow the law in its true spirit.

National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 rel.

Shawar Khilji for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General, Punjab (on Court's call).

2019 Y L R 2924

[Lahore (Multan Bench)]

Before Asim Hafeez, J

ABDUL MAJEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHUJABAD and 2 others---Respondents

Writ Petition No. 555 of 2019, decided on 30th January, 2019.

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

----S. 13---Civil Procedure Code (V of 1908), O. XXI, R. 17---Enforcement of decrees---Amendment in execution petition---Inherent powers---Lack of bona fide---Scope---Petitioner assailed orders of Family Court and Appellate Court whereby permission was granted to the respondent to implead minor as a decree-holder in the execution petition---Validity---Authority of executing court could not be undermined or narrowly construed to take away an inherent power/authority to allow amendment to remove a defect, sought to be removed within the prescribed period of limitation and without any prejudice to the petitioner; such authority was envisaged under R. 17 of O.XXI, C.P.C.---No embargo was placed on the executing court to allow amendment in the execution, as long as it caused no prejudice and the intended amendment did not travel beyond the decree---Intent and objective to deny fruits of decree to minor, who happened to be a daughter of the petitioner, was mischievous and lacking bona fides---No reason to exercise discretion when no prejudice was caused to the petitioner---Constitutional petition was dismissed.

Abbasuddin Chowdhury v. Chandra Mohan Chowdhury and others PLD 1967 Dacca 512 and Popular Industries Commercial Agencies, Khairpur v. Khairpur Textile Mills Ltd. PLD 1972 Kar. 617 rel.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 17, 13, 5 & Part I, Sched.---Civil Procedure Code (V of 1908), O. XXI---Provisions of Civil Procedure Code, 1908---Applicability---Jurisdiction of Family Court---Enforcement of decrees---Procedure---Scope---Exclusion of Civil Procedure Code, 1908 envisaged in section 17 of Family Courts Act, 1964 is not applicable to the execution proceedings--- Execution proceedings shall be regulated and proceeded with through O. XXI, C.P.C.---Exclusion is only meant for matters in respect of the Part I of the Schedule of Family Courts Act, 1964.

2019 Y L R 68

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

ALI ASKAR---Appellant

Versus

The STATE through Additional, Advocate-General and another---Respondents

Criminal Appeal No. 205-M of 2014, decided on 6th February, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution, on all counts, had failed to prove the factum of motive with regard to procurement of "Bhatta"/extortion of money---Inference could be gathered from attitude of the witness that, he had not seen the occurrence in the mode and manner as advanced by the prosecution; especially when the other important witness of the prosecution did not support the prosecution version---Non-examination of material witnesses had affected the prosecution case---Uncertainty existed about presence of rest of the eye-witnesses---Sole testimony of brother of the deceased would come under the category of interested/chance witness---Occurrence was unseen---Veracity of prosecution witnesses statements, alone, were not to be considered to bring home charges---Prosecution witnesses had excluded each other's presence on the spot---Uncertainty remained to the effect that the postmortem of the deceased might have been carried out, even before lodging of report in the concerned Police Station---Abscondence by itself, was not sufficient proof of guilt of accused, but it ought to be corroborated by other supporting evidence, which element was missing in the case---Where direct or ocular-version was not of such caliber to be relied upon, mere abscondence of accused alone would be of no worth---Prosecution case against accused had not been proved beyond reasonable doubt and the judgment of the Trial Court was based on wrong appreciation of evidence and the law on the subject---Impugned judgment of conviction rendered by the Trial Court, was set aside, accused was acquitted of the charges levelled against him and he was set free, in circumstances.

[Case-law referred].

(b) Criminal trial---

----Motive, proof of---When a party specifically claimed certain fact in shape of motive, then it was its bounden duty to prove the same.

(c) Criminal trial---

----Witness---If a witness was trustworthy and reliable then conviction could safely be based on his evidence, otherwise his evidence could not be utilized.

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

----Art. 129(g)---Failure to produce best evidence---If best evidence was available but party it failed to produce the same before the court then presumption under Art.129(g) of the Qanun-e-Shahadat, 1984, could be drawn that had the said evidence been produced before the court, it would have been unfavourable to the said party.

(e) Criminal trial---

----Benefit of doubt---If there existed a reasonable ground to believe that accused had not participated in the commission of crime then there was no need of numbers of circumstances to prove the innocence of accused---Even a single circumstance creating reasonable doubt, was sufficient for the acquittal of accused.

[Case law referred].

(f) Administration of justice---

----Where ocular account did not support the version of prosecution in its totality, corroboration or circumstantial evidence was necessary in such cases.

Sher Muhammad Khan for Appellant.

Malak Sarwar Khan State Counsel, Rashid Ali Khan and Asif Wardag for Respondents.

2019 Y L R 86

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

QALANDRI BIBI---Petitioner

Versus

Mst. IRUM BIBI and others---Respondents

Writ Petition No.631-A of 2018, decided on 13th June, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 18---Suit for dissolution of marriage, recovery of dower, dowry articles, gold ornaments and maintenance allowance by wife against husband, his brother and his mother---Pardanasheen Lady (petitioner ) applied for recording her statement through her special attorney---Petitioner contended that her application was wrongly dismissed by the Family Court though application of similar nature was accepted---Respondent contended that petitioner had already appeared before the court in other proceedings so her application was rightly dismissed by the Family Court---Validity---Record revealed that the application of the petitioner was rejected on the ground that she could not produce any proof of her ailment---Section 18 of Family Courts Act, 1964 permitted a Pardanasheen lady to be represented by duly authorized agent---When a Pardanasheen lady could be represented before the Court through her authorized agent no embargo could be imposed on recording her statement through her special attorney---Family Court was legally required to have recorded her statement through her special attorney---Computerized National Identity Card of the petitioner also showed that she was an old lady of 79 years which further strengthened her case---Appearance of the petitioner in other proceedings, held, would not debar her to seek such relief in the present proceedings---High Court set aside impugned order directing the Family Court to proceed with the case while recording the statement of the petitioner through her agent---Constitutional petition was allowed accordingly.

Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1336 ref.

Zafar Iqbal for Petitioner.

Zulfiqar Ali Tanoli for Respondents.

2019 Y L R 174

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

ZEEST SHAH---Petitioner

Versus

GOMAL MEDICAL COLLEGE, D.I. KHAN and 4 others---Respondents

Writ Petition Nos.379-D, 458-D, of 2016, 770/D, 791-D and 928-D of 2017, decided on 20th February, 2018.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S.37 [as amended by Medical and Dental Council (Amendment) Act (XIX of 2012)]---House Job/Internship/Foundation Year Regulations, 2013, Regln. IV---MBBS examination---Failure to pass all subjects---Effect---Petitioners were studying in Medical College and their grievance was that authorities did not allow them to attend next classes as they had not passed all subjects of previous class---Validity---Petitioners got admissions under House Job/Internship/ Foundation Year Regulations, 2013, by accepting all terms and conditions of admission/examination criteria and had also filed their affidavits in such respect---Controversy between students and administration of Medical College arose when certain students failed to qualify some of the papers prescribed for previous classes and they were not allowed to attend next higher class as provided in House Job/Internship/Foundation Year Regulations, 2013, and provision contained in Prospectus 2012-2013---Provisions of Regulations were unambiguous and binding on all institutions in Pakistan as well as students who had executed affidavits in such respect---Without clearing all subjects of previous classes, no one could be promoted---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

1990 SCMR 1282; 1998 SCMR 313; 1995 SCMR 421; PLD 2008 Lah. 211 and 2014 MLD 1691 rel.

Tahir Hussain Shah for Petitioner.

Salahuddin Khan Gandapur and Kamran Hayat Khan Miankhel, A.A.G. for Respondents.

2019 Y L R 189

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

MINHAJ---Appellant

Versus

Mst. MIRZADGAI and another---Respondents

Criminal Appeals Nos. 200-M and 201-M of 2014, decided on 7th November, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Accused was charged for the murder of the deceased with firearm---Record showed that the only witness of ocular account was mother of the deceased---Said witness had stated that her son was coming to house from the nearby mosque after offering Zuhr prayer, when on the way the accused and co-accused fired at him, he got injured and later on died---Occurrence was stated to have been witnessed by two witnesses besides her---Said eye-witness had stated in his examination-in-chief that he was not present at the place of occurrence and he had no knowledge about the occurrence---Said witness was declared hostile and cross-examined by the State counsel, yet the probative worth of his testimony could not be shattered---Other eye-witness had not been examined---Site-plan showed that mother of deceased had not been shown outside her house---Said witness being pardanasheen lady had herself stated that she was busy in the household work---Even otherwise, in that advance age, the pardanasheen lady like mother of the deceased was usually present in the house for performance of routine household work---Prosecution was duty bound to prove presence of said witness at the place of occurrence---Father of the deceased appeared as witness and admitted that he was not eye-witness of the occurrence---If presence of father and mother of deceased was not considered then it would be an unseen occurrence---Record showed that the distance between the mosque and the house was 15/20 paces---Mother of the deceased being an old and pardanasheen lady was attracted to the place of occurrence within two minutes, would definitely lead to an inference that the occurrence was un-witnessed---Circumstances established that the 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 in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Mushtaqeem v. Nawab Khan and another 2016 YLR 905; Umar Gul and another v. Samar Khan and another 2015 PCr.LJ 248; Muhammad Aslam and others v. The State 1988 SCMR 940; Yasir and 2 others v. Raqiaz Khan and another 2011 MLD 1214; Saif Ullah v. The State 2008 MLD 1181; Qaisar Khan and others v. The State and others 2009 SCMR 471 and Saadullah v. Mst. Sardar Bibi and 2 others 2011 PCr.LJ 1455 ref.

Ashiq v. The State 1993 SCMR 417; Muhammad Anwar v. The State 1997 PCr.LJ 2075; Haroon alias Harooni v. The State and another 1995 SCMR 1627; Gul Muhammad v. The State and another 2003 SCMR 1391; Habib-ur-Reham Khan v. Sved Mustafa Abbas PLD 1989 SC 20 and "Mumtaz-ud-Din v. The State PLD 1978 SC 114 rel.

(b) Criminal trial---

----Eye-witness---Statement of solitary eye-witness---Scope---Statement of such eye-witness must be of an unimpeachable character as it should come straight from all corners that the witness was present at the spot and had seen the occurrence.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Recovery of weapon of offence from the accused---Reliance---Scope---Record showed that Kalashnikov along with charger and ten cartridges were allegedly recovered from personal possession of the accused---Such recovery had been effected after twelve years---Forensic Science Laboratory report had been furnished in positive to the effect that the Kalashnikov had been found in working condition---When the evidence in the main case had already been disbelieved against the accused in all probabilities, the recovery of weapon would hardly be of much significance in respect of guilt of the accused.

(d) Criminal trial---

----Recovery of empties---Corroborative evidence---Scope---Recovery of empties were considered to be corroborative piece of evidence---Such kind of evidence by itself was not sufficient to bring home the charges against the accused especially when the other material put-forward by the prosecution in respect of guilt of the accused had already been disbelieved.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace.

Tariq Pervez v. The State 1995 SCMR 1345 and Ghulam Oadir and 2 others v. The State 2008 SCMR 1221 rel.

Sahibzada Asadullah for Appellant.

Barrister Asad Hameed-ur-Rehman State counsel and Azim Khan for Respondents.

2019 Y L R 226

[Peshawar]

Before Shakeel Ahmed, J

MUHAMMAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous (B.A.) No.1659-P of 2018, decided on 28th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act ( XXV of 1997 ), Ss. 9 ( c ) & 51---Possession of narcotic substance weighing 4 Kgs, two Kgs each of heroin and charas---Bail, refusal of---Consideration of probable sentence at bail stage---Scope---Liability of driver of vehicle from where contraband was recovered---Scope---Contrabands were allegedly recovered from inside (secret cavities) of the door of vehicle driven by the petitioner with co-accused at the front seat---Petitioner contended that he being just a driver had no conscious knowledge of contraband ---Further contention was that it was not the maximum punishment but ultimate sentence, which was likely to be imposed, was to be taken into consideration for the purpose of bail and that question of sentence must commensurate with the quantum of guilt ---Validity---Driver could not be absolved from the liability, if contrabands were being transported in the secret cavities of the vehicle driven by him--Neither categorization of sentencing nor any guess work/speculative exercise could be undertaken by the Court at bail stage to enlarge an accused on bail in such a case---Investigation was complete, challan had been submitted and trial was likely to commence so granting bail to the petitioner could cause prejudice to either party---Prima facie case existed against the petitioner , which fell within the prohibition contained in S.497, Cr.P.C as well as S.51 of Control of Narcotic Substances Act, 1997---Bail was refused to the petitioner in circumstances.

Muhammad Shah v. State PLD 1984 SC 278; Said Shah v. The State PLD 1987 SC 288; Nadir Khan v. The State 1988 SCMR 1899; Rab Nawaz v. The State PLD 1994 SC 858 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

Muhammad Jehangir for Petitioner.

Muhammad Tariq Kakar, Special Prosecutor, ANF for Respondent.

2019 Y L R 305

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

Lieutenant Colonel SAEED AHMAD AWAN (Retired), Ex-Principal Fauji Foundation Model School, Abbottabad---Petitioner

Versus

FAUJI FOUNDATION TRUST through Managing Director and 6 others---Respondents

Civil Revision No.262-A of 2016, decided on 16th October, 2017.

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

----Ss.42 & 21(b)---Charitable Endowments Act (VI of 1890), Preamble---Civil Procedure Code (V of 1908), O. VII, R. 11---Appointment on contract basis---Suit for declaration for extension in contract appointment---Maintainability---Legal character---Non-statutory rules---Effect---Plaint, rejection of---Scope---Plaintiff-employee was appointed as Principal of School on contract basis for three years---Employee filed suit for extension of contract appointment but plaint was rejected---Validity---Plaintiff-employee was appointed as Principal of the school for a period of three years commencing from 02.03.2011 to 20.03.2014---Employee was intimated that he would stand retired from service on 20.03.2014---Plaintiff had sought declaration on the basis of policy of the Institution---Institution was a trust having no statutory rules/internal policy---Rights and obligations between the parties were contractual in nature---Employment contract of plaintiff was not enforceable under S.21 (b) of Specific Relief Act, 1877---Any suit for specific performance of service agreement was barred under S.21 of Specific Relief Act, 1877---Court was not precluded to examine the maintainability of suit at initial stage even if it was not specifically barred under the law---Court trying a suit for declaration could examine the contents of plaint to consider whether plaintiff was entitled to any legal character or to any right to any property---Impugned policy having no statutory force could not be given any status more than a contractual obligation---If relationship between the employee and employer was not governed through any law or instrument having the force of law then said relationship would be termed as master and servant---Suit for declaration seeking reinstatement in service by the employee of any organization against an employer where relationship of employer and employee was not governed through any statute or statutory rules would not be competent---Employee in case of his termination of contract employment could claim damages only---Present suit could not be proceeded further on legal as well as factual grounds---Plaint had rightly been rejected by the Courts below---Revision was dismissed, in circumstances.

PLD 2002 Pesh. 45; PLD 2008 Pesh. 135; 1988 CLC 1724; 1991 CLC 149; 2015 CLC 1423; 2007 SCMR 945; PLD 2009 Pesh. 48; 2014 YLR 149; 2008 SCMR 1037; PLD 2009 Kar. 38 and 2014 SCMR 914 ref.

Burma Eastern Limited v. Burma Eastern Employees Union PLD 1967 Dhaka 190; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Anwar Hussain v. Agricultural Development Bank of Pakistan 1992 SCMR 1112; Muhammad Asim v. Allah Dad 1987 SCMR 1778; Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others 2001 SCMR 909; Shakeel Ahmed Shaikh v. Agha Khan University through Board of Governors and another 2017 PLC (C.S.) 1080; S. M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 and Muhammad Anwar v. Muhammad Hanif 2015 CLC 530 rel.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Principles.

While deciding an application under Order VII, Rule 11, C.P.C. only the contents of the plaint would be looked into and nothing else. Where the contents of the plaint do disclose a cause of action and the relief sought is not barred by law, then the suit can only be decided by recording evidence of the parties, keeping in view the principles that the law would favour adjudication on merits and that the right of fair trial should be provided to the parties. However, if upon perusal of the plaint it is obvious that the suit cannot proceed either on legal or factual grounds, then the court should not feel hesitant in resorting to the provision of Order VII, Rule11, C.P.C. by rejecting the plaint, even in cases where there is no law barring the suit. If after going through the plaint the court comes to the conclusion that the claim of the plaintiff has no prospects of success under the law, then the said court is competent to reject the plaint being not maintainable under the law even if it is not barred by the law.

Even if a suit is not specifically barred under the law, the court is not precluded to examine the maintainability of the suit at its initial stage. The court trying a suit for declaration can examine the contents of the plaint to see whether the plaintiff is entitled to any legal character or to any right to any property in terms section 42 of the Specific Relief Act. In such a situation when the law is very clear that the terms of the policy can neither be enforced under section 42 or section 21 of the Specific Relief Act, the suit of the plaintiff cannot further proceed on legal as well as factual grounds.

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

----S. 42---'Legal character'---Scope---Legal character as envisaged by S.42 of the Specific Relief Act is a status of person arising from some law, customs having the force of law or his status recognized by society cannot ensue from mere contractual obligations.

Burma Eastern Limited v. Burma Eastern Employees Union PLD 1967 Dhaka 190 rel.

Qazi Muhammad Shehryar for Petitioner.

Fida Bahadur for Respondent No.1.

2019 Y L R 318

[Peshawar (Mangora Bench)]

Before Mohammad Ibrahim Khan and Muhammad Nasir Mahfooz, JJ

GUL MAJID---Appellant

Versus

AKHTAR MOHAMMAD and another---Respondents

Criminal Appeal No. 286-M of 2017, decided on 7th March, 2018.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, common intention---Appreciation of evidence---Confessional statement, recording of---Alleged eye-witnesses, including the complainant, being Afghan Nationals, having been deported/migrated to Afghanistan, were abandoned by the prosecution---Only incriminating evidence against accused was his retracted judicial confession---Said confessional statement was recorded after 2 days of arrest of accused---Possibility of obtaining confession through coercion, inducement or torture could not be ruled out---Conviction could be based on retracted confession if it was voluntary, true and confidence inspiring---Even mandatory period of 30 minutes had not been given to accused before recording his confession and at the time of recording of confessional statement no relative of accused were present with him and accused deposed in a very lucid words "that none was there to help him and he was all alone"---Such confession, deserved little consideration and was discarded accordingly---Conviction of accused could not be based solely on confessional statement, unless the prosecution was able to substantiate its charge against accused through trustworthy and confidence inspiring testimony of the witnesses, which standard of evidence could not be seen in the present case---Incident was an unseen and un-witnessed crime---Prosecution case against accused had not been proved beyond reasonable doubt and judgment of Trial Court was based on wrong appreciation of evidence and the law on the subject---Impugned judgment of conviction rendered by the Trial Court was set aside and accused was acquitted of charge levelled against him and he being in custody was ordered to be set free, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898; Bahadur Khan v. The State PLD 1995 SC 336; Asif Mahmood v. The State 2005 SCMR 515; Noor Muhammad and others v. The State and others 2017 PCr.LJ 479 and Talib Hussain and another v. the State and another 2017 YLR 436 ref.

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

----S. 164---Confessional statement---Scope---While evaluating confessional statement, the main object of law was to ensure its voluntariness and truthfulness---Greater duty/responsibility had been casted upon the Magistrate recording confession to be satisfied that confession was voluntarily made and to that end, he must make an inquiry before recording the confession.

(c) Criminal trial---

----Benefit of doubt---If there existed a reasonable ground to believe that accused had not participated in the commission of alleged crime in the mode and manner as advanced by the prosecution then there was no need of numbers of circumstances to prove the innocence of accused, even a single circumstance creating reasonable doubt, was sufficient for the acquittal of accused.

Sahibzada v. The State and 2 others 2015 PCr.LJ 554 ref.

Muhammad Ikram Khan for Appellant.

Rahim Shah, Assistant Advocate General for the State.

2019 Y L R 369

[Peshawar]

Before Qalandar Ali Khan, J

PROVINCIAL HOUSING AUTHORITY through Director General, Peshawar---Petitioner

Versus

WAZIR KHAN and 4 others---Respondents

C.R. No.289-P of 2016, decided on 30th October, 2018.

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

----S. 42--- Suit for declaration---Contention of plaintiff was that he was owner in possession of one kanal land out of suit property---Suit was decreed concurrently---Validity---Khasra Girdawari did not show the plaintiff in possession of the land in question---Plaintiff had entered in neighborhood of the land of Provincial Government through purchase of ten marlas land in the adjoining Khasra---Plaintiff had encroached upon the adjacent land of defendant by digging a gutter therein for his house constructed in his ten marlas adjoining land---Decrees in favour of plaintiff by both the Courts below were based on admission of revenue officials whose inclination towards plaintiff was evident---Impugned judgments and decrees passed by both the Courts below were set aside---Suit filed by the plaintiff was dismissed with costs throughout---Revision was allowed in circumstances.

(b) Administration of justice---

----Party had to succeed on the strength of its own case and not on the weakness in the case of opposite side.

Amir Javed for Petitioner.

Tariq Khan Hoti for Respondent No. 1.

Respondent No.4 in person.

Respondent No.5 in person.

2019 Y L R 408

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

ABDUL GHANI---Petitioner

Versus

JAMAIL-U-REHMAN---Respondent

C.R. No.236-A of 2015, decided on 1st March, 2018.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O.VII, R. 11---Pre-emption suit---Plaint, rejection of---Scope---Alienation of suit land prior to institution of suit---Vendee alienated suit property to his son prior to institution of suit---Defendant moved application for rejection of plaint which was accepted---Validity---"Whether subsequent alienation was a valid devise to ward-off the right of pre-emption or same was only a disguise/ sham transaction to deprive the plaintiff from his right of pre-emption" could only be determined after recording evidence---Courts below had ignored the settled principles of law while deciding the application for rejection of plaint---Only contents of plaint while deciding the application for rejection of the same had to be taken into consideration---Plaint, in the present case, revealed a cause of action to the pre-emptor to file suit against the impugned sale---Suit had been filed within prescribed period of limitation against the original transaction---Present suit was neither barred by any law nor did it lack disclosing a cause of action---Impugned orders passed by the Courts below were set aside---Revision was allowed in circumstances.

PLD 2009 SC 93 ref.

Muhammad Hussain v. Muhammad PLD 2010 SC 803; Muhammad Zaman and others v. Shah Wazir Khan PLD 2002 Pesh. 45; Aurangzeb Khan v. Haq Nawaz and others PLD 2008 Pesh. 135; Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38 and Abdul Qayyum through Legal heirs v. Mushk-e-Alam and another 2001 SCMR 798 rel.

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

----O. VII, R. 11---Plaint, rejection of---Factors to be considered---Only contents of plaint while deciding the application for rejection of the same had to be taken into consideration.

Haji Ghulam Basit for Petitioner.

Muhammad Nawaz for Respondent.

2019 Y L R 505

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

MUHAMMAD YAR KHAN---Petitioner

Versus

AJAB KHAN---Respondent

C.R. No.511-P of 2009 with C.Ms. No.730 of 2014, 15 and 18 of 2015, decided on 26th October, 2017.

Transfer of Property Act (IV of 1882)---

----S. 54---Suit for declaration on the basis of unregistered sale deed---Maintainability--- "Sale"--- Essentials---Plea of plaintiff was that he was owner in possession on the suit property---Suit was dismissed concurrently--- Validity---Plaintiff was bound to establish that transfer of suit property was effected by a person having title or authority to create a right backed by sale consideration and delivery of possession---When value of sale transaction was over and above one hundred rupees then it could be made only by a registered instrument---Mere registration of document by itself would not furnish proof of elements of sale which must co-exist prior to execution and registration of sale deed---Plaintiff while seeking declaration was bound to implead vendor as defendant without whom suit would have no forbearance for a valid decree---Sale agreement, in the present case, was an unregistered document which required registration under the law---Sale would not be complete without registration of the deed---Sale consideration, in the present case, was Rs. 3,37,871.25/- which required registration and suit for declaration for fulfilment of such contract of sale was not competent---Where sale between the parties had not been completed, declaration could not be sought rather only course available was to file a suit for specific performance for completion of sale---Plaintiff would be at liberty to file a fresh suit for specific performance of contract under the same cause of action on the basis of alleged agreement under the ambit of limitation---Revision was disposed of in circumstances.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 and Dilawar Khan v. Mst. Badshah Zadi and another PLD 2011 Pesh. 208 ref.

Muhammad Saeed v. Nahid Shagufta and 3 others PLD 1990 Lah. 467; Khalid Khan v. Haji Muhammad Anwar 2015 YLR 1845; Gohar Rehman v. Riaz Muhammad 2011 YLR 888; Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 347; Noor Din and another v. Additional District Judge Lahore and others 2014 SCMR 513 and Sher Khan through L.Rs. v. Gul Zar Khan 2016 CLC 663 rel.

Sher Muhammad Khan for Petitioner.

Muhammad Arif Iftikhar for Respondent.

2019 Y L R 516

[Peshawar (Abbotabad Bench)]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

JAMEEL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.122-A of 2013, decided on 20th February, 2018.

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

----Ss. 302, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Withholding best evidence---Appreciation of evidence---Benefit of doubt---Accused persons were charged for committing murder of parents and brother of complainant, Complainant had stated that at the time of occurrence, he was present at his house and the deceased had gone for reaping grass to the place of occurrence which was at a distance coverable within 15/20 minutes from his house---Complainant was informed by his uncle regarding the occurrence---Such circumstances showed that complainant was not eye-witness of the occurrence, whereas two eye-witnesses were abandoned by the prosecution---Witness/uncle of the complainant narrated the same story, as mentioned in the FIR---Said witness during his cross-examination had deposed that he was at a distance of 25/30 yards from the place of occurrence, however, he reached the spot within 4/5 minutes---Said witness happened to be the brother of deceased/father of the complainant and despite being at a close proximity to the site of occurrence, neither he nor the other witness made any effort to rescue the deceased, even though they had noticed that the accused while armed with knives and axe were quarrelling with them---Presence of said witness at the crime spot due to his unnatural conduct had become highly doubtful which compelled the prosecution to abandon two witnesses---Abandoning of two witnesses would obviously lead to adverse inference in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984---Record transpired that two accused got recorded their confessional statements before the Judicial Magistrate---Allegedly, the deceased persons at the relevant time had gone for cutting grass and it would be very unnatural that they would cut grass without any tool---Record showed that two accused caught hold of the three deceased, which appeared very unnatural and improbable, out of whom one was a young man, and in the said scuffle, the accused did not receive a single injury---No medical examination was conducted after arrest of accused, which suggested that either of them had any injury on their bodies confessional statement of the accused did not appear to be true---Circumstances established that the prosecution had failed to prove its charge against the accused persons beyond shadow of doubt---Appeal was allowed and accused were ordered to be acquitted, in circumstances.

Pathan v. The State 2015 SCMR 315 rel.

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

----Art.129(g)---Withholding best evidence--Effect---If any party withheld the best piece of evidence it could fairly be presumed that such party had some sinister motive behind it---Such situation would create impression that had such witness been produced into witness box he might have not supported the prosecution case.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafiq and others v. The State 2010 SCMR 385 rel.

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

----S. 164---Confessional statement---Scope---Confession must not only be voluntary but it must be true---In order to ascertain the truthfulness of confession, it must be visualized and examined in juxtaposition with the other evidence of the prosecution---Conviction could be based on sole confession, however, for that the confession must be voluntary, true, without any inducement, fear and coercion.

Manjeet Singh v. The State PLD 2006 SC 30; State v. Waqar 1992 SCMR 950; Nazir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 rel.

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

----S. 164---Confessional statement---Delay in recording confessional statement---Effect---Confessional statement recorded with the delay of four days could not be made basis for conviction of the accused.

Muhammad Parvez and others v. The State 2007 SCMR 630 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Crime weapons, churri and axe, were recovered from the accused persons---Both the crime weapons allegedly recovered contained human blood as per serologist report---Despite the fact that the blood stained garments and sand were sent for examination, but the prosecution had not simultaneously sent the same for matching or grouping of the blood on the crime weapons with the blood on the clothes of the deceased---Such missing chain would obviously benefit the accused.

(f) Criminal trial---

----Motive---Scope---Motive was double edged weapon, which would cut both sides.

Naseem Khan Swati and Fazal e Haq Abbasi for Appellants.

Raja Muhammad Zubair, A.A.G. for the State.

Ghulam Mustafa Khan Swati for the Complainant.

2019 Y L R 545

[Peshawar]

Before Rooh-ul-Amin Khan, J

TAHIR KHAN and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 30-P of 2017, decided on 12th November, 2018.

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

----S. 540-A---Exemption from personal appearance---Physical presence, necessity of---Scope---Section 540-A, Cr.P.C. does not postulate the physical presence of accused as a condition precedent for granting exemption to him---If it was intended by the law maker to attach such condition then it would have done it by mentioning the same clearly and in unambiguous term---Term "before the court", employed in S. 540-A, Cr.P.C., does not necessarily mean and point towards the physical presence of the accused.

(b) Interpretation of statutes---

----While interpreting statute relating to the realm of criminal law, which transgresses/encroaches upon the liberty of person or property of a subject, much care and caution was to be observed and the interpretation be made in a manner which is to preserve such right and not to disturb the same.

State v. Qaim Ali Shah 1992 SCMR 2192 fol.

Father of Petitioner No.1 in person.

Arshad Ahmad, A.A.G. for the State.

Muhammad Ilyas Orakzai for the Complainant.

2019 Y L R 560

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

Moulvi MUHAMMAD RAFIQUE and another---Petitioners

Versus

Malik MUNSIF and others---Respondents

C.R. No.130 of 2014, decided on 5th October, 2017.

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

----S. 54---Suit for permanent injunction---Suit property being Shamilat deh was reserved for mosque so that its Imam could earn livelihood from the usufructs of the said property---Defendant being Imam was removed from the mosque and another Imam was appointed---Plaintiff filed suit that defendant (Imam) was bent upon to construct house over the suit property---Suit was decreed concurrently---Validity---Suit property was in permissive possession of defendant and prior to him it was in the possession of his father because of his services as being Imam of the mosque---Land in question had been allocated by the village proprietary body for Imam of the mosque in lieu of his services as Imamat---Defendant having been removed from the office of Imam Masjid, he had no right over the suit property---Courts below had rightly decreed the suit---Revision was dismissed in circumstances.

(b) Words and phrases---

----'Seri' and "Srikhor"---Cannotation.

Word Seri has neither been defined in the Land Revenue Act 1967 nor in any other legal instrument. It is used customary in relation to Land/ Property which has been reserved by the village proprietary body from their common property for Imam of a mosque or any other religious purpose or for any other person or class of persons (blacksmith or carpenter etc) in lieu of his/their service to the village proprietary body.

Term Seri cannot be given any definite and uniform meaning. The rights and obligations of the person or class of persons in possession of the property as Serikhor over the property (Seri) shall be determined keeping in view the relevant entries in revenue record, wajibularz or any other instrument or other evidence establishing the customs relating to the assignment of the Seri/property. Hence the terms and nature of holding of the said property/Seri in lieu of services or Imamat discerns from the customs which are normally incorporated in the Wajib ul Arz of the village and the Revenue documents or other acceptable treatise or documents from which undisputedly the nature and character of the assignment of Seri to the person or class of persons can be traced. This kind of assignment of property is called Seri and the person who is assigned the property is called Serikhor. [pp. 562, 564] A & B

Azizur Rahman v. Atai Khan PLD 1976 Pesh. 60; Muhammad Atiq and others v. Tayubuddin PLD 1998 Pesh. 47; Mian Tayyaabudin v. Muhammad Atiq PLD 2004 SC 321; Hakeem Shah v. Sawab Khan PLD 2002 SC 200 and Muhammad Saleem Shah v. Azizur Rhaman Shah PLD 2002 SC 280 rel.

Haji Sabir Hussain Tanoli for Petitioners.

2019 Y L R 586

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

PUBLIC-AT-LARGE through Molvi Muhibullah and others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Peshawar and others---Respondents

W.P. No.432-B of 2014, decided on 30th October, 2018.

(a) Constitution of Pakistan---

----Art. 199---Public interest litigation---Amenity plots, encroachment upon---Petitioners were aggrieved of encroaching upon by municipal authorities into a children's park for construction of shops and quarters---Validity---Public place was being used for purpose other than for which it was created---Said plot was a public place and any other activity was beyond scope of relevant law which was encroachment upon valuable right of citizens---For interest of public at large any construction in shape of shops, houses, quarters and canteens was in violation of Constitution, laws, rules and regulations provided for the purpose---High Court directed the authorities to demolish shops which was a commercial activity and to add same to part of park or it should be utilized for zoo and other playing areas---Constitutional petition was allowed in circumstances.

W.P. No.147 of 2013; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Ghulam Habib Jadoon v. Karachi Watch and Care Society and 3 others 2004 SCMR 911; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Cutting of Trees for Canal Widening Project, Lahore, in the matter of Suo Motu case No.25 of 2009, 2011 SCMR 1743 ref.

(b) Vested right---

----Inherent right---Scope---Vested right is inherent for common citizen and it cannot be taken away by few individuals to fulfil their personal needs.

Pir Liaqat Ali Shah and Muhammad Usman Khan for Appellants.

Inam Ullah Khan Kakki, Farooq Khan Surrani and Bashir-ur-Rehman Burki for Respondents.

2019 Y L R 605

[Peshawar]

Before Rooh-ul-Amin Khan, J

FAWAD ISHAQ and 2 others---Petitioners

Versus

Mrs. MAHREEN MANSOOR and 4 others---Respondents

Writ Petitions Nos.2037-P and 1865-P of 2017, decided on 17th December, 2018.

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

----S. 2(d)---Words 'any person'---Connotation---Word 'party' as defined in S. 2(d) of Family Courts Act, 1964 includes 'any person' whose presence as such is considered necessary for a proper decision of dispute and whom Family Court adds as party to such dispute.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 2(d) & 5, Sched.---Dower, recovery of---Suit against mother-in-law---Concurrent findings of two courts below---Suit was filed by plaintiff against her ex-husband and ex-mother-in-law for recovery of dower in shape of constructed house which was in name of her mother-in-law---Family Court and Lower Appellate Court concurrently decreed suit and appeal in favour of plaintiff---Validity---Nikahnama was signed by father-in-law of plaintiff as guarantor and consented that house in question would be given to plaintiff in lieu of dower---House in question was in ownership of ex-mother-in-law of plaintiff---Dower in shape of cash amount and gold ornaments was already paid to plaintiff by her husband---Remaining part of her dower concerned the defendant (mother-in-law)---Plaintiff had rightly filed suit against her mother-in-law for recovery of dower---Family Court had jurisdiction to try and adjudicate upon such suit filed by plaintiff---Judgments of two courts below were well-reasoned and were based on proper appreciation of evidence and law on the subject---Defendants failed to point out any jurisdictional defect or violation of any law in judgments passed by two courts below---High Court, in exercise of its Constitutional jurisdiction maintained judgments and decrees passed by two courts below---Constitutional petition was dismissed in circumstances.

Muhammad Arif and others v. District and Sessions Judge, Sailkot and others 2011 SCMR 1591; Mst. Shehnaz Akhtar v. Fida Hussain and 2 others 2007 CLC 1517 and Mst. Musarrat Andleeb v. Additional District Judge Alipur District Muzafargrah and 3 others 2011 CLC 1989 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Principles---Proceedings under Art. 199 of the Constitution is not substitute of an appeal---Such jurisdiction is completely discretionary in nature and High Court while exercising same has to see whether tribunal or court acted without jurisdiction or in violation of any relevant statute or law---High Court in its Constitutional jurisdiction under Art. 199 of the Constitution cannot embark upon reappraisal of evidence as same is sole job of appellate court.

Zulfiqar Khan Awan v. Secretary Industries and Mineral Development Government of Punjab Lahore and 08 others PLD 1973 SC 530 and Muhammd Hussain Munir v. Sikandar PLD 1974 SC 139 rel.

Khalid Mehmood for Petitioner.

Imtiaz Ali for Respondent No.1.

Muhammad Tariq Afridi for Respondent No.3.

2019 Y L R 622

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

ALI BAHADAR---Petitioner

Versus

TOYOTA INDUS MOTOR COMPANY LTD. through Chief Executive/ Managing Director and 3 others---Respondents

Writ Petition No.516-P of 2014, decided on 25th October, 2018.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 23(4), 25 & 43---Khyber Pakhtunkhwa (Road Checking, Seizing and Disposal of) Motor Vehicle Rules, 2015, Rr. 7 & 8---Seizure of vehicle---Tampered chassis number---Petitioner claimed to be owner of vehicle in question which was seized from his son on account of having tampered chassis number---Plea raised by petitioner was that he was entitled to custody of vehicle in question---Validity---According to registration authority, registration number of vehicle in question was genuine, however, as per Forensic Science Laboratory report, its chassis number was found deciphered---High Court declined to hand over custody of vehicle in question to petitioner as same would amount to issuance of license of court for plying a tampered and unauthorized vehicle on road---Excise and Taxation authorities were bound under R. 8 of Khyber Pakhtunkhwa (Road Checking, Seizing and Disposal of) Motor Vehicle Rules, 2015 to proceed with the case and should have confiscated vehicle through speaking order followed by open auction through 'Auction Committee'---High Court deprecated that vehicle was seized on 12-09-2013 but proceedings had yet not been completed; since year 2013 till date, seizing officer along with warehouse officials did not move a step ahead in the case---Fate of vehicle in question was purposely left undecided---Neither vehicle was parked in safe place nor dealt with in accordance with mandatory provisions of Khyber Pakhtunkhwa (Road Checking, Seizing and Disposal of) Motor Vehicle Rules, 2015---Constitutional petition was dismissed in circumstances.

Malik Muhammad Ajmal for Petitioner.

Rab Nawaz Khan, A.A.G. along with Nauman Akhtar (Inspector Litigation) and M. Iqbal ETO, Peshawar for Respondents.

2019 Y L R 644

[Peshawar (Abbotabad Bench)]

Before Syed Arshad Ali, J

WASEEM GUL and another---Petitioners

Versus

SHAHID JAMEEL and another---Respondents

C.R. No.283-A of 2011, decided on 16th March, 2018.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---"Judgment" in appeal---Points for determination---Scope---Appellate Court was required to frame points for determination and render its reasons---Appeal was continuation of suit, therefore, it was the duty of the Appellate Court to assess the entire evidence, pro and contra, produced by the parties, examine findings recorded by the Trial Court and give reasons for upholding or reversing the same---Appellate Court was under legal obligation to decide the dispute in the manner prescribed by O. XLI, R. 31, C.P.C. and had to consider the controversy entirely afresh both as regards facts and law to substitute its own judgment for that of the Trial Court---Findings of the Appellate Court were to be self-explanatory, illuminative and in the nature of a speaking order and the judgment was to show that the judge was conscious of the matter involved and the reasons rendered by him had the reference from the evidence produced by the parties---Judgment in case of final appeal required careful reappraisal by the appellate court.

Aslam Khan and others v. Khushdil Khan and others 2015 MLD 213; Mst. Sarwar Bano through attorney v. Province of Sindh through Member Board of Revenue, Hyderabad and 5 others PLD 2015 Sindh 445; Javed and 19 others v. Abdul Rashid and 4 others 2015 YLR 1362; Muhammad Hanif and others v. Muhammad Aslam and others 2016 CLC Note 80 and Mst. Bachho v. Abdul Qayyum alias Habibullah and 14 others 2015 CLC 805 ref.

Muhammad Ayub Khan for Appellant.

Malik Shahid Jameel for Respondents.

2019 Y L R 671

[Peshawar (Abbotabad Bench)]

Before Syed Arshad Ali, J

MUHAMMAD HAROON ABBASI---Appellant

Versus

JAMIL RABBANI---Respondent

F.A.O. No.1-A of 2017, decided on 4th December, 2017.

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

----S. 17---Ejectment petition---Denial of relationship of landlord and tenant---Defence, striking off---Scope---Landlord filed ejectment petition on the ground of default and sub-letting---Rent Controller directed the tenant to file written statement, who requested the Court to first dispose of his application for summary rejection of ejectment petition wherein he had denied the relationship of landlord and tenant---Rent Controller accepted the ejectment petition and ordered ejectment of tenant---Validity---Rent Controller while passing order under S. 17(8), Cantonments Rent Restriction Act, 1963 could not act mechanically but had to consider both, the plea of landlord as well as the defence offered by the tenant---Rent Controller, in the present case, had, without waiting for the written reply of tenant, passed order under S. 17(8) of Cantonments Rent Restriction Act, 1963; without giving any opportunity to the tenant to explain his cause qua putting forward his defence---When tenant had denied relationship of landlord and tenant, Rent Controller was to frame preliminary issue on the existence of relationship of landlord and tenant, however, in case landlord established the relationship in affirmative to the satisfaction of the Rent Controller then the same shall follow ejectment order against the tenant---Before striking off the defence of tenant no notice was issued to tenant which was a mandatory requirement before passing an order in that regard---Case was remanded to the Rent Controller with direction to frame preliminary issue regarding existence of relationship between the parties---Appeal was allowed, in circumstances.

1983 SCMR 1064; 1994 SCMR 572; 1991 CLC 1364; 1996 CLC 368 and PLD 2001 PesH. 42 ref.

Malik Shujjat Ali for Appellant.

Gul Shareen Khan Jadoon for Respondent.

2019 Y L R 721

[Peshawar]

Before Waqar Ahmad Seth, C.J.

TAHIR AHMAD NASEEM---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No.1472-P of 2018, decided on 28th September, 2018.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.153-A, 295-A, 295-B, 295-C & 298---Promoting enmity between different groups etc., deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling etc. of copy of Holy Qur'an, use of derogatory remark etc. in respect of Holy Prophet (P.B.U.H.), uttering words etc. with deliberate intent to wound religious feelings---Bail, refusal of---Record revealed that the accused in his statement recorded under S.161, Cr.P.C. not only repeated his alleged views but also in support of his version produced hand-written literature---During the investigation, police also took into possession certain audio recording and oral statements of the accused in the shape of USB and personal computer---Disputed material had already been made viral on the internet through social media account of the accused---Recovered USB and computer were dispatched to the Forensic Science Laboratory---Report of Examiner (Digital Foreignsic/Audio Video Section) was in affirmative---Present case was unique and serious in its nature as the accused had challenged the chastity and respect of the Holy Prophet Muhammad (P.B.U.H.), therefore, he was liable to be dealt with iron hands---Accused deserved no leniency---Bail was refused to the accused in circumstances.

Verse No. 40 Surah Parah No.22; Hadith No.3532,and Hadith No.3535, Chapter ref.

Barrister Awais Babar for Petitioner.

Shakeel Ahmad Khel for the Complainant.

Rab Nawaz Khan, AAG for the State.

2019 Y L R 734

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

ANWAR ALI---Petitioner

Versus

Mst. NAHEED and 4 others---Respondents

Writ Petitions Nos.385-M and 488-M of 2014, decided on 7th February, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched--- Suit for recovery of dower, dowry articles maintenance allowance and custody of minors by the ex-wife/mother---Payment of gold ornaments in lieu of dower at the time of marriage---Scope---Non-production of receipts of purchase of dowry articles---Effect---Welfare of minors---Scope---Trial Court had held that payment for claimed dower/gold ornaments had already been paid to the ex-wife/petitioner to which she was entitled to retain---Petitioner/ex-wife contended that Trial Court had wrongly held so as she was minor at the time of her marriage and sister of the respondent (husband) had skillfully taken the said gold ornament on the next day of the marriage; Trial Court had not rightly discarded few items like furniture from list of her dowry articles while passing decree in her favour---Respondent (husband) contended that at the time of leaving his house, petitioner (wife) had taken away the dower/gold ornaments---Validity---No proof was provided by the respondent that petitioner had taken gold ornaments along with her while leaving his house---Female who had been given in Nikah to the respondent being minor at that time, it was more plausible to believe that on the next day of marriage, the sister of the respondent had taken the gold ornaments from her as the same had been temporarily arranged at the time of marriage by the sister of respondent who demanded its return just after the marriage was solemnized---Where there was a list of dowry articles which included household articles such list was to be believed---Normally it was not possible for bride to keep the record of purchase of dowry articles and obtain signature on the list of articles from the bridegroom side, all the dowry articles as per list were either returnable or payment of one third of its value in the alternate---Record revealed that during subsistence of trial, Session Court, on application under S. 491, Cr.P.C, gave children to the custody of mother---Mother/petitioner being natural guardian could best take care of the children; father having had contracted second marriage---Constitutional petition of ex-wife/mother was allowed accordingly.

Zahid Janan v. Mst. Kausar Begum and 2 others 2016 YLR Note 43; Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 and Mst. Nazeer Begum and others v. Abdul Sattar PLD 1963 (W.P.) Kar. 465 ref.

Muhammad Amin Khan for Petitioner.

Aziz-ur-Rahman Swati for Respondents.

2019 Y L R 757

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

Syed NAEEM SHAH and another---Petitioners

Versus

Khawaja ZAHOOR IQBAL and 2 others---Respondents

Writ Petition No.1131-A of 2017, decided on 20th December, 2017.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Default in payment of rent---Striking off defence---Recovery of defaulted rent---Procedure---Rent Controller passed order for deposit of monthly rent before 15th of each month---Tenant did not cross-examine the witnesses and his defence was struck-off---Rent Controller accepted eviction petition on the ground of default and personal need and tenant was directed to deposit defaulted rent---Validity---Tenant did not comply with the order passed by the Rent Controller for deposit of rent before 15th of each month---Delay of single day in deposit of rent without any explanation was sufficient to strike-off defence of tenant---Tenant was provided opportunity to cross-examine the witnesses of landlord but he intentionally opted not to cross-examine them on the ground that he had filed constitutional petition before High Court---Tenant was afforded opportunity to produce evidence but he failed and his defence was struck-off---Conduct of tenant remained contumacious and he had been delaying the matter on one or the other pretext---Defence of tenant had rightly been struck-off in circumstances---Section 13 of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 did not authorize the Rent Controller for passing final order/ decree against tenant for recovery of defaulted rent---Rent Controller could pass order for deposit of arrears of rent and in case of default could strike-off defence of tenant but had no jurisdiction to pass a decree for recovery of defaulted rent---Landlord could file a suit for recovery of said rent before Court of competent jurisdiction--- Impugned judgments passed by the Courts below were set aside to the extent of direction for payment of rent---Constitutional petition was disposed of in circumstances.

Muhammad Jan v. Khadim Hussain 1973 SCMR 243; Ghulam Ahmad Prizada v. Additional District Judge, Lahore and 2 others 1982 SCMR 616; Abdul Qayyum Paracha v. Ghulam Hussain and others 1985 SCMR 580; Fazal-ur-Rehman v. Mst. Sarweari Begum and others 1986 SCMR 1156; Province of Punjab and others v. Muhammad Jalil-ur-Rehman 1986 SCMR 1705; Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557; Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201 and Ch. Abdul Aziz v. M.K. Abbasi PLD 1986 SC 33 rel.

Dildar Ahmed Lughani for Petitioner.

Malik Muhammad Asif for Respondent.

2019 Y L R 851

[Peshawar]

Before Rooh-ul-Amin Khan, J

Qazi BADR-UL-WAHAB and 20 others---Appellants

Versus

LAND ACQUISITION COLLECTOR, PROVINCIAL HOUSING AUTHORITY, PESHAWAR and 3 others ---Respondents

Regular First Appeal No.562-P of 2014, heard on 5th November, 2018.

(a) Land Acquisition Act (I of 1894)---

----Ss. 18, 23, 31, 9, 8 & 11---Reference to court--- Enhancement of compensation---Protest by the land owner before receiving compensation---Procedure---Written protest---Necessity---Inquiry by the Collector Land Acquisition--- Market value---Determination of---Reference petition had been filed by the land owners prior to receipt of compensation amount which by itself was protest within the meaning of S. 31(2) of Land Acquisition Act, 1894---No written protest was mandatory prior to receipt of compensation amount by the land owners---Provisions of S. 31 of Land Acquisition Act, 1894 did not provide any mechanism for making or lodging such protest at the time or before receiving compensation---Reference could be filed by person who had not accepted the award by a written application to the Collector Land Acquisition for determination of objections to the land acquisition the amount of compensation and the person to whom it was payable---Collector Land Acquisition was bound to invite land owners to put their claims for compensation of their respective interests and objections with regard to measurement of acquired land---Collector Land Acquisition was to serve notice of inquiry to be held under S. 11 of Land Acquisition Act, 1894---Provisions of S. 11 of the Act were mandatory in nature and Collector Land Acquisition or Acquisition Officer was responsible for conducting such inquiry---For invoking the penal provision of S. 31(2) of Land Acquisition Act, 1894 the person who was said to have received the amount of compensation without protest would be the one who knew the implication of award and he had a right to claim higher compensation---Protest could be made either in writing or through filing reference within prescribed period of limitation---Claimant might receive the amount of compensation under protest orally, in circumstances---Even reference petition filed by the land owners was sufficient proof of their implied protest against the market price determined by the Collector Land Acquisition---When law did not prescribe any particular mode of protest then the oral protest or reference petition was a valid protest under the law and would be sufficient to entitle the land owners to file reference petition---Market price of acquired land had been assessed and determined by the Collector Land Acquisition on the sole criteria of one year average price which was against the principle of law---Material available on record was also relevant to evaluate the amount of compensation---Civic facilities were available in the vicinity of acquired land---Market price of acquired land had not been properly assessed by the Collector Land Acquisition, in circumstances---Referee Court had rightly determined the market price of the acquired land---Impugned judgment was based on proper appreciation of evidence and law on the subject--- Appeal was dismissed, in circumstances.

Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar 1999 SCMR 1647 and Abdul Waheed's case 1986 MLD 381 rel.

(b) Interpretation of statutes---

----Statute had to be interpreted in a manner to advance the cause of justice by making the same workable, practicable and harmonious to avoid possible mischief.

Issac Ali Qazi, M.Tariq Khan Yousafzai, Gulzar Ahmad Khan and Farhat Ullah Khan for Appellants.

Sabah ud Din Khattak, Haji Fayaz Ali and Furqan Yousafzai for Respondents.

Date of hearing: 5th September, 2018.

2019 Y L R 919

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

SAEED alias SAIDO and 6 others---Appellants

Versus

ABDULLAH---Respondent

Civil Revision No.286-A of 2016, decided on 21st September, 2017.

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

----S. 8---Civil Procedure Code (V of 1908), O. XXVI---High Court (Lahore) Rules and Orders Vol. I, Chap. 1, Part M (i)---Suit for possession of immovable property---Demarcation---Requirements---Plaintiff on the basis of demarcation report prepared by Circle Girdawar filed suit for possession which was decreed concurrently---Contention of defendants was that no notice was issued to them in the demarcation proceedings---Validity---Parties were not co-owners in the suit property---No Commission was appointed by the Trial Court for re-demarcation of suit land---Only evidence with regard to alleged encroachment upon the property of plaintiff was the demarcation report of Circle Girdawar---Said report was ambiguous and vague with regard to spot inspection and establishment of Khasra---No site plan/sketch of measurement/spot inspection was prepared by the Girdawar while making demarcation of suit land---Nothing was on record whether Girdawar had followed the rules of demarcation as provided in the High Court (Lahore) Rules and Orders---Revenue officer was bound to first trace some permanent point/structure wherefrom he was to undertake the measurement by establishing each Khasra number intervening the disputed Khasra number keeping in view the description and measurement of each arm of Khasra number as provided in Shajra Kishtwar---Entire measurement should be reflected in separately prepared sketch wherein the encroached property should be separately marked enabling the Court to render definite opinion on encroachment if any made by the defendants---Demarcation report in the present case was not worth reliance as it did not disclose the real controversy between the parties---Nothing was on record to decide the issue of encroachment---Impugned judgments and decrees were based on no/incorrect evidence---Matter could not be left unattended due to deficient demarcation report---Nobody should suffer for negligence and act of public servant---If statutory functionary had failed to perform his duties in accordance with law then plaintiff could not be made to suffer for the said omission/negligence when Court had power to appoint commission for spot inspection---Impugned judgments and decrees passed by the Courts below were set aside---Matter was remanded to the Trial Court for appointing Commission comprised of an expert revenue officer not below the rank of Girdawar for demarcation of disputed land and thereafter to decide the case in accordance with law---Revision was allowed in circumstances.

(b) Administration of justice---

----Nobody should suffer for negligence and act of public servant.

Muhammad Ayaz Khan for Appellants.

Bashir Ahmed Chaudhry for Respondent.

Date of hearing: 21st September, 2017.

2019 Y L R 943

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

HAMAYUN KHAN through Attorney---Petitioner

Versus

Raja MUHAMMAD AYAZ and 4 others---Respondents

Writ Petition No.267-A of 2017, decided on 13th July, 2017.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 99---Cantonments Rent Restriction Act (XI of 1963), S. 17---Eviction of tenant---Execution petition---Objections---Matter decided without affording opportunity of hearing---Natural justice, principles of---Applicability---Objection petition was filed but same was dismissed by the Executing Court---Appellate Court accepted the appeal and remanded the matter with the direction to the Executing Court to proceed in accordance with law and decide the same after recording of evidence---Appellate Court while deciding appeal made observation that possession of demised premises could be handed over to the landlord subject to the decision of objection petition---Landlord thereafter filed application before the Executing Court seeking possession of suit property on the basis of said observations which was dismissed---Revisional Court without affording opportunity of hearing to the objection petitioner ordered that possession of suit land be handed over to the landlord forthwith subject to condition that if objection petition was decided against him then possession would be taken back and would be delivered to the party entitled---Validity---Court below had denied the opportunity of hearing to the petitioner while hearing the impugned petition---Court while deciding a matter finally was required to afford opportunity of hearing to the contesting parties---Impugned order had been passed in violation of principles of natural justice---Where adverse action was contemplated to be taken against a person then he/she would have right to defend such action notwithstanding the fact that statute governing his/her rights did not contain the provision of principles of natural justice---Appellate Court should have restricted itself to the issues raised before it and could not dilate upon any other issue although same might be pending before subordinate Court---Observation made in the impugned order was beyond the mandate of Appellate Court---Impugned orders passed by the Appellate Court were set aside---Case was remanded to District Judge who should either himself decide the matter or assign the same for disposal to Additional District Judge except the one who had already expressed his opinion---Constitutional petition was allowed accordingly.

Chief Commissioner, Karachi and another v. Messrs Dina Sohrab Katrak PLD 1959 SC 45; University of Dacca and another v. Zahir Ahmed PLD 1965 SC 90; Mst. Maryam Yunus v. Director of Education, Cantonment, G.H.Q, Rawalpindi and others PLD 1990 SC 666; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; Hazara (HILL TRACT) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Mst. Parveen Begum v. Habib Gul and another 1997 MLD 2473; Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank, Pakistan 1990 CLC 1473 and Nishan Ali v. Sher Muhammad 2004 MLD 1809 rel.

Qazi Obaid ur Rehman for Petitioner.

Sajjad Ahmad Abbasi and Zakir Paul Hussain for Respondents.

Date of hearing: 13th July, 2017.

2019 Y L R 983

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

MUQARAB KHAN PANNI and 5 others---Appellants

Versus

COLLECTOR LAND ACQUISITION (DOR), HARIPUR and 2 others---Respondents

R.F.A. No.226-A of 2010, decided on 6th December, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 18, 4 & 23---Reference---Enhancement of compensation---Plea of land owners was that potential value of acquired land was higher than proposed in average year sale prepared by the Patwari Halqa---Reference was dismissed by the Referee Court---Validity---Entire acquired land was Chahi in nature---Petitioners were entitled for compensation against the land at the rate fixed for Chahi kind of land---Collector Land Acquisition had granted compensation in view of the nature of the land as Charri, Maira and uncultivated whereas no compensation had been granted in the impugned award for Chahi land---Petitioner was entitled for compensation of his acquired land being Chahi---Rate of Chahi kind of land provided by the Patwari Halqa was Rs. 29,630.53 per marla---Notification under S. 4 of Land Acquisition Act, 1894 was issued on 24-12-2005 whereas impugned award was announced on 28-08-2007---Collector Land Acquisition had considered the compensation for the acquired land on the basis of average of one year sale from 24-12-2004 to 24-12-2005---Date for determination of compensation would be the market value of suit land on the date of taking possession of said land---Amount of compensation for the land acquired from the petitioners was enhanced to Rs. 29,630.53 per marla with all incidental charges as envisaged by Land Acquisition Act, 1894---Appeal was allowed, accordingly.

Sultan Shah's case PLD 2011 Pesh. 60 and Begum Aziza's case 2014 SCMR 75 rel.

Faisal Saeed Khan for Appellants.

Sardar Muhammad Asif, Assistant Advocate General for Respondents.

Date of hearing: 6th December, 2017.

2019 Y L R 1073

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

ABDUL JABAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 375-P of 2015, decided on 12th December, 2018.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration---Scope---Prosecution case was that accused and co-accused, duly armed with firearms opened fire at the complainant, as a result of which, complainant sustained injury on his chest and later on succumbed to the injuries in the hospital---Motive of the occurrence was cited as dispute between the parties over trees---Prosecution had placed reliance, on the dying declaration of deceased-complainant, then injured, and ocular account furnished by two eye-witnesses---Dying declaration did not inspire confidence for the reason that the Medical Officer who examined the complainant in injured condition reported that injured was semi conscious, thereby indicating that he was not fully conscious---Medical Officer did not report that the complainant was fully oriented in space and time and was able to make a coherent statement, besides showing him in full senses, conscious and alert to surroundings---Note of Investigating Officer on murasila to the effect that the statement of the injured was recorded as dying declaration would naturally raise question that as to how at that stage he was sure that the injured was going to die---Prosecution version was that the complainant was not that serious so as to raise such a serious concern about his life---Relevant column in the medical report about names of relative or friend of the injured was left blank, while in both the inquest and post-mortem reports, witness was shown as one of the two identifiers of the dead body beside another witness---Two eye-witnesses and close relatives of the deceased were not shown present at the time of initial medical examination of the deceased-complainant, when he was brought to the hospital---Said persons were not present at the time of recording of dying declaration of the deceased-complainant---Said facts, would render the dying declaration as doubtful.

2018 PCr.LJ Note 66; 2016 PCr.LJ 836; 2016 PCr.LJ Note 36; 2016 PCr.LJ Note 90; 2015 MLD 690 and 2003 PCr.LJ 1186 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and co-accused, duly armed with firearms opened fire at the complainant, as a result of which, complainant sustained firearm injury on his chest and succumbed to the injuries in the hospital---Motive of the occurrence was cited as dispute between the parties over trees---Ocular account was furnished by two eye-witnesses---Record showed that neither house of the deceased-complainant nor that of said witnesses had been shown in the close proximity of the place of occurrence in the site plan---Witnesses could at best be regarded as chance witnesses, but their testimony, nevertheless, received no corroboration from independent witnesses residing in the vicinity---Conspicuous absence of the said witnesses at the time of lodging of the report by the complainant and also during his initial medical examination also tended to raise serious questions about their claim as eye-witnesses of the occurrence---Eye-witnesses had admitted that blood was oozing from body of the injured in the vehicle while travelling from the spot to the hospital and that his hands and garments were smeared with blood of the injured---Neither blood was collected from the spot or the vehicle, nor blood stained garments of the witness were taken into possession---Blood stained garments of the deceased-complainant taken into possession, showed that blood was, indeed, oozing from the body of the deceased-complainant, but its absence from the spot, vehicle and garments of the witness would raise question not only about the scene of occurrence but also about presence of the witnesses at the spot at the time of occurrence---Such circumstances would be sufficient to discredit the testimony of said witnesses who claimed to have accompanied the complainant, then injured, to the hospital---Statements of said witnesses as eye-witnesses were rendered not worthy of reliance---Circumstances established that there was nothing incriminating to implicate the accused in the case---Appeal was allowed in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of empty shells from the place of occurrence--- Reliance--- Scope---Record showed that neither 12 empty shells of 7.62 bore, reportedly collected from the spot near the place assigned to the accused in the site plan, nor the spent bullet recovered from the dead body were sent to the Forensic Science Laboratory---Prosecution should have procured a positive result about the empties and spent bullet fired from one weapon of offence, particularly when only one accused out of two named in the FIR, was charged for effective firing on the deceased-complainant---Recovery of empty and spent bullets, in circumstances, was inconsequential.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, not proved---Effect---Motive of the occurrence was stated as dispute over trees---Said motive having not been proved was doubtful.

Syed Abdul Fayaz and Bashir Ahmed Khan for Appellants.

Ms. Zarmina Gul for the State/ Respondent No.1.

Hussain Ali for the Complainant/Respondent No.2.

Date of hearing: 12th December, 2018.

2019 Y L R 1109

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

MUZAFFAR KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.114-A of 2012, decided on 6th November, 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---Prosecution case was that the accused party made firing on complaining party due to which two persons were killed and two were injured---Motive for the occurrence was annoyance of accused party due to divorce of sister of accused by the deceased and family matter was pending in the court---Accused in injured condition had also lodged report to the police against five persons of complainant party, alleging that they launched attack on them, started firing, which caused injuries to the accused party---Ocular account of the occurrence had been furnished by witnesses including complainant---Testimony of said witnesses inspired confidence in relation to charging the present accused for firing at the deceased---Said witnesses had given consistent, natural and straightforward ocular account of the occurrence---Defence subjected them to a lengthy searching cross-examination but their testimony remained unshaken and un-shattered---Nothing was noticed in their cross-examination to show that the accused was falsely implicated in the case---Presence of the said witnesses on the spot was also proved, as they both were charged by the accused party in cross case registered for causing injuries with the spades, wherein, the accused also received injuries---Said witnesses were shown in the site-plan and specific point had been given to them in the cross case---Testimony of said witnesses had been duly corroborated by the recovery of blood of the deceased from the place of occurrence, his blood stained garments and recovery of crime empties and 30-bore pistol from accused and positive report of Forensic Science Laboratory and Firearms Expert---Said recoveries had been duly proved during trial through recovery witnesses and nothing adverse could be achieved despite cross-examination---Medical evidence also supported and corroborated the testimony of the said eye-witnesses and no contradiction at all could be pointed out by the defence---Motive alleged by the prosecution in the present case was same which was asserted by the accused party in cross case---Prosecution had proved its case against the accused beyond any shadow of doubt, in circumstances---Appeal was dismissed.

Haroon Rasheed v. The State 2005 SCMR 1568; Sh. Muhammad Abid v. The State 2011 SCMR 1148; Nasir Iqbal v. The State 2016 SCMR 2152 and Muhammad Javed v. The State 2015 SCMR 864 rel.

(b) Criminal trial---

----Witness, statement of---Scope---Minor discrepancies in the statements of the witnesses---Effect---Minor discrepancies in the statements of the witnesses, which were immaterial and very trivial in nature, could not adversely affect the credibility and truthfulness of their testimony.

Ranjha v. The State 2007 SCMR 455 and Sheraz Khan v. The State 2010 SCMR 1772 rel.

Fazal-i-Haq Abbasi for Appellants.

Raja Muhammad Zubair, A.A.G. along with Qazi Shams-ud-Din for the Respondents.

2019 Y L R 1158

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

FAWAD KHAN---Petitioner

Versus

Sh. ASIF LATIF SATHI and others---Respondents

C.R. No.82-A of 2014, decided on 5th November, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), Ss. 41 & 52---Suit for specific performance of agreement to sell---Sale of suit property during pendency of suit---Bona fide purchaser---Lis pendens, principle of---Applicability---Suit was decreed concurrently--- Validity---Plaintiff had proved his case by producing ample, cogent, reliable and confidence inspiring evidence---Plaintiff had fully established his stance and Courts below had rightly decreed the suit in his favour---Plaintiff had succeeded to prove that suit property was sold to him through agreement to sell---Subsequent mutations in favour of defendant were rightly ordered to be cancelled by the courts below---Defendant had purchased the suit property during pendency of present suit---Transfer in favour of defendant was hit by the principle of lis pendens in circumstances---Defendant had alienated the suit property during pendency of litigation and his conduct debarred him from seeking relief---Courts below had rightly attended all the facts and circumstances of the case---No illegality, irregularity or jurisdictional error had been pointed out in the findings recorded by the Courts below---Revision was dismissed, in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti PLD 2011 SC 905; Rafique Ahmed and others v. Yar Muhammad and others 1992 CLC 881; Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 rel.

Muhammad Saleem Awan for Petitioner.

Haji Shabir Husain Tanoli for Real Respondents.

Zafar Iqbal for proforma Respondents.

2019 Y L R 1208

[Peshawar (Abbotabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

MUHAMMAD JAVED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 98-A and Murder Reference No.3-A of 2015, decided on 16th October, 2018.

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

----Ss. 302(b), 452, 404 & 34---Qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint, dishonest misappropriation of property possessed by deceased person at the time of death, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged that he along with his brother and nephew committed the murder of three persons and injured a lady---Motive for the offence was stated to be the pressure of the accused along with other co-accused for a compromise with the deceased---In the present case, two witnesses including complainant had furnished ocular account---Testimony of both the eye-witnesses was consistent, confidence inspiring and trustworthy---Defence had objected that FIR was registered after consultation and deliberation---Peculiar facts and circumstances of the case itself explained the delay---Defence could not succeed to prove any consultation, deliberation and premeditation on the part of the complainant to falsely charge the accused in the case---Accused was residing in the same vicinity and was well known to the complainant and eye-witness---Accused was duly identified in the light of lantern which was taken into possession by the Investigating Officer during investigation---Medical evidence also supported the version of the complainant and there was no mentionable contradiction in the statement of the eye-witnesses, who were natural---Both the witnesses had established their presence at the spot at the time of occurrence---Ocular account furnished by the eye-witnesses was also corroborated through other circumstantial evidence, i.e. recoveries of blood stained articles and empties---Charge against the accused had been proved beyond any shadow of doubt, however, the motive could not be proved by prosecution through cogent and reliable evidence during trial---Such being mitigating circumstances, death sentence awarded to accused was altered to life imprisonment.

Allah Wasaya and another v. The State 2017 SCMR 1797; Ijaz Ahmad v. The State 2017 SCMR 1941; Amanat Ali v. The State 2017 SCMR 1976; Fayyaz alias Faizi v. The State 2017 SCMR 2024; Rehmat Khan v. The State 2017 SCMR 2034; Saifullah v. The State 2017 SCMR 2041 and Ghulam Muhammad v. The State 2017 SCMR 2048 rel.

(b) Criminal trial---

----Motive---Scope---Once motive was alleged prosecution was under legal obligation to establish the same.

Shah Nawaz Asim for Appellant.

Raja Muhammad Zubair, AAG, Shad Muhammad Khan for Respondents.

Yasir Zahoor Abbasi, A.A.G. for the State.

2019 Y L R 1287

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

AHMAD---Petitioner

Versus

JAHANGIR KHAN and others---Respondents

C.R. No.159-B of 2013, decided on 28th January, 2018.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Shamilat land, purchase of---Scope---Plaintiff filed suit for declaration, perpetual injunction and recovery of damages---Plaintiff claimed that he was owner in possession of property including shamilat, while defendants had no concern with the same---Plea of defendants was that they had purchased property through mutations and unregistered deeds---Trial Court decreed the suit of plaintiff and Appellate Court while accepting the appeal dismissed the suit---Validity---Parties were in unison that defendant had pre-empted certain transactions in the disputed shamilat---Courts below had ignored the fact that plaintiff was recorded as joint owner in the column of cultivation because entries in the column of ownership in shamilat property was only made when a person purchased any property along with share in shamilat---Purchase of any property without purchasing share in shamilat was alien to the principle that person belonging to non-proprietary body could not be given same status as a person belonging to proprietary body of the village, who inherited his ownership rights---High Court declared the plaintiff to be co-sharer along with defendant---Judgments and decrees passed by courts below were modified accordingly.

Muhammad Asjad Abbasi and others v. Iqbal Muhammad Chauhan and others 2018 SCMR 2051 rel.

Sardar Naeem Khan for Petitioner.

Waris Faheem and Javed Aslam for Respondent.

2019 Y L R 1337

[Peshawar (Abbotabad Bench)]

Before Syed Muhammad Attique Shah, J

SHAH ZAMAN through Special Attorney---Petitioner

Versus

PAINDA alias RAJA and 3 others---Respondents

C.R. No.109-A of 2009, decided on 11th October, 2017.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Gift mutation---Proof of---Contention of plaintiff was that impugned gift mutation was got attested fraudulently---Suit was dismissed concurrently---Validity---Donor in his lifetime had gifted entire property to his legal heirs---Defendants had produced Patwari Halqa who entered impugned mutation as well as Revenue Officer who attested the same---Plaintiff had challenged the impugned mutation after sixteen years---Impugned mutation was within the knowledge of plaintiff from the very first day of its attestation---Limitation for such like case would be governed by Art. 120 of Limitation Act, 1908---Plaintiff was required to file the present suit within the period of six years from the date of attestation of mutation in question---Present suit was barred by time, in circumstances---Impugned judgments and decrees passed by the Courts below were based on proper appreciation of evidence and material available on record---Revision was dismissed, in circumstances.

Khurshid Khan for Appellant.

Mahbob Ahmed Khan for Respondents.

2019 Y L R 1402

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

SNGPL ABBOTTABAD through Regional Manager---Appellant

Versus

AHZAZ CNG STATION and 2 others---Respondents

F.A.O. No.13-A of 2018, decided on 23rd November, 2018.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----S. 13(6)--- Appeal against inter-locutory order--- Maintainability---Appellant assailed order of Gas Utility Court whereby it allowed respondent's application for restoration of gas supply---Validity---Trial Court had disposed of application of respondent and not the main suit, which fell within the ambit of S.13(6), Gas (Theft Control and Recovery) Act, 2016---Appeal against interlocutory order being not main-tainable was dismissed.

Malik Mahmood Akhtar for Petitioner.

Junaid Anwar Khan for Respondents.

2019 Y L R 1481

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

MUHAMMAD ARSHAD ABBASI and 3 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN (ECP) through Secretary and 5 others---Respondents

Writ Petition No.1280-A of 2018, decided on 29th November, 2018.

Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2013---

----R. 13(4)---Change of bye-elections schedule---Postponement of elections---Scope---Petitioner sought postponement of bye-elections of their Union Council to some other date after winter season, so as to facilitate the voters of the area to cast their votes---Validity---Election Commission had announced the schedule for conducting local government bye-election in the whole of the Province---Process of filing of nomination papers and scrutiny thereof had already commenced---Elections could not be postponed in petitioners' Union Council on the ground of weather alone---Constitutional petition, being devoid of merits, was dismissed in limine.

Sardar Muhammad Haseeb Abbasi for Petitioners.

Yasir Zahoor Abbassi, A.A.G. for Provincial Election Commission.

2019 Y L R 1523

[Peshawar (D.I. Khan)]

Before Shakeel Ahmad, J

Hafiz KALU and others---Petitioners

Versus

MUHAMMAD BAKHSH and others---Respondents

Civil Revision No. 134-D of 2014, decided on 17th January, 2019.

(a) Khyber Pakhtunkhwa Consoli-dation of Holdings Ordinance (VI of 1960)--

----Ss. 24 & 26---Civil Procedure Code (V of 1908), S. 9---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Transfer of land during consolidation proceedings without permission of Consolidation Officer--- Effect--- Sale mutation---Proof of--- Procedure---Allegation of fraud in sanctioning of mutation---Bar on the jurisdiction of Civil Court---Scope--- Contention of plaintiffs was that impugned mutations were based on fraud and were without consideration---Trial Court dismissed the suit but Appellate Court decreed the same--- Validity--- Land during consolidation proceedings without permission/sanction of Consolidation Officer could not be transferred---Court below had rightly held that attestation of impugned mutations during consolidation proceedings without seeking permission of Consolidation Officer was invalid---Impugned mutations did not have thumb impression nor signature of vendor or marginal witnesses---Mutation did not confer title and it did indicate previous sale between the parties---Whenever mutation was impugned then beneficiary of the same was bound not only to prove its validity but also the transaction which had been incorporated in the same---Defendants had failed to prove the attestation of impugned mutations and transaction incorporated therein---Defendants had even failed to prove the payment of sale price to the vendor---Defendants-vendees neither produced Patwari who entered the impugned mutations nor the Revenue Officer who attested the same---Defendants were not in possession of the suit property but plaintiffs were in possession of the same---Findings recorded by the Court below were correct and did not need interference in the same---Matter with regard to adjustment of land or share distribution in consolidation operation did fall within the exclusive jurisdiction of consolidation authorities and Civil Court could not sit in appeal on them---Plaintiffs, in the present case, had not challenged the consolidation proceedings but they had pleaded that impugned mutations were attested by practicing fraud during consolidation proceedings---Civil Court being Court of plenary jurisdiction was competent to inquire into the question whether impugned mutations were attested by practicing fraud and if it was so then it had jurisdiction to declare the same to be void---Impugned mutations were attested by practicing fraud and provision of S.26 of Kyber Pakhtunkhwa Consolidation of Holdings Ordinance, 1960 was not attracted to the present case---No mis-reading or non-reading of evidence or illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Abid Arif Nomani and others v. Chief Administration Auqaf Punjab and others 2004 SCMR 1050 rel.

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

----S. 42---Suit for declaration against sanctioning of mutation---Limitation---Suit for declaration against sanctioning of mutation could be filed within a period of six years from the date when right to sue accrued.

Mst. Sharifan Bibi v. Mst. Barkat Bibi 2008 YLR 653 rel.

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

----S. 9---Jurisdiction of Civil Court---Scope---Civil Courts could try all suits of civil nature except those of which their jurisdiction was barred expressly or by necessary implication.

Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698 rel.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- Concurrent findings of two Courts below---High Court declined interference.

Shah Wali v. Muhammad Iqbal PLD 2005 Lah. 214; Civil Aviation Authority Karachi v. Rist Consultants (Pvt.) Ltd. Lahore 1998 SCMR 2393; Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal heirs and others 1998 SCMR 2485; Muhammad Azan v. Inayat Shah 1998 SCMR 1356 and Mazhar Iqbal v. DCO Toba Tek Singh and others 2008 SCMR 863 rel.

Malik Muhammad Jehangir Awan for Petitioner.

Ghulam Hur Khan Baloch and Adnan Ali Khan, A.A.G. for Respondents.

2019 Y L R 1578

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Mst. FARUKH SULTAN---Petitioner

Versus

Haji MUHAMMAD YOUNAS and 6 others---Respondents

Civil Revisions Nos. 182-A and 145-A of 2018, decided on 26th November, 2018.

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S. 54---Suit for declaration and permanent injunction---Limitation---Sale mutation---Proof of---Procedure---Contention of plaintiff was that impugned mutation was based on fraud and mala fide---Suit was dismissed concurrently---Validity---Defendants had produced only Part Patwar of impugned mutation which did not bear the signatures and thumb impression of the vendor, attesting witnesses as well as order of Revenue Officer---Defendants had not examined Patwari Halqa who entered the impugned mutation nor Revenue Officer who attested the same---Defendants could neither establish through cogent, reliable and confidence inspiring evidence the attestation of mutation nor payment of sale consideration to the vendor---Defendants were not in possession of the suit property and they could not get any benefit of impugned mutation---Defendants were bound to establish through evidence the payment of sale consideration to the vendor but they had failed to prove the same through cogent, reliable and confidence inspiring evidence---Requirements of S. 54 of Transfer of Property Act, 1882 had not been fulfilled in the present case---If sale consideration was missing in the sale transaction then sale was not complete---Plaintiff had possession over the suit property---Repetition of every wrong entry in the subsequent Jamabandi would create fresh cause of action---Present suit had been filed within the period of limitation---Findings recorded by the Courts below were not based on correct appreciation of evidence and material available on record---Suit filed by the plaintiff was decreed, in circumstances---Revision was allowed accordingly.

PLD 1983 SC 53; 2005 SCMR 1859; 2007 SCMR 635; 2016 SCMR 1417; 2017 SCMR 679; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Khan Muhammad v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Younas Khan and others v. DOR&E Peshawar and others 2017 CLC Note 63 and Umar Farooq and others v. Hamid Ali and others 2018 CLC 254 rel.

(b) Transfer of Property Act (IV of 1882)---

---S. 54---Sale---Essential ingredients.

Section 54 of Transfer of Property Act, 1882 provides essential ingredients for constitution of a valid sale transaction, according to which there must be (i) a valid sale agreement; (ii) parties to sale transaction; (iii) sale consideration fixed and paid; and (iv) subject-matter of sale transaction. The main thrust and focus in the definition of sale is given to the price, which generally called as "sale consideration". If this important and essential element is missing in a sale transaction, then the sale would not complete.

(c) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

---S. 42---Mutation---Scope---Mutation is not a title deed neither it confers any title nor can it take away any right.

PLD 1983 SC 53; 2005 SCMR 1859; 2007 SCMR 635; 2016 SCMR 1417 and 2017 SCMR 679 fol.

Hafiz Iftikhar Ahmad Khan for Petitioner.

Muhammad Shoaib Khan for Respondents.

2019 Y L R 1729

[Peshawar (Mangora Bench)]

Before Syed Arshad Ali, J

HAZRAT ALI and 15 others---Petitioners

Versus

MUZAFFAR KHAN (deceased) through L.Rs.---Respondents

C. R. No. 342-M of 2009, decided on 12th December, 2018.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Cancellation of document, declaration and injunction---Joint ownership---Dispute between parties was with regard to ownership of suit property---Suit filed by plaintiffs was decreed in their favour by Trial Court but same was dismissed by Lower Appellate Court---Defendants claimed to be owner on basis of sale deed executed by plaintiffs---Validity---Plaintiffs were not declared owners of suit property at relevant time, however, sale deed could not be cancelled on such ground as subsequently, they were so declared and had become full owners of property but their share was reduced to half in entire suit properties in view of written compromise effected between both parties---If vendor owing to defect in title sold the property and subsequently had become owner of that property, then such transaction could not be annulled on such scope that at the relevant time, seller was not declared owner of property---Four houses out of all suit properties were sold by plaintiffs to different persons and they themselves had occupied two houses---Plaintiffs could not challenge such transaction and they had approached court with sullied hands---Transaction in favour of defendants was factually and legally correct---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as same was based on correct appreciation of law and evidence---Revision was dismissed in circumstances.

Ashfaq Ahmad and 6 others v. Ch. Maqbool Raza and 4 others 2008 CLC 1340 and Muhammad Muzaffar Khan v. Yusuf Khan PLD 1959 SC 9 ref.

Mian Iqbal Hussain for Petitioners.

Abdul Halim Khan for Respondents.

2019 Y L R 1734

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Muhammad Nasir Mahfooz, J

AZAM KHAN---Appellant

Versus

KASHIF ALI and another---Respondents

Criminal Appeal No.628-P of 2018, decided on 14th March, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Accused was charged for the murder of niece of complainant having illicit relation with her---Record showed that FIR was lodged by the uncle of deceased on 3.12.2015, wherein no one was charged for commission of the offence---Father of the deceased, on 7.12.2015, recorded his statement under S. 164, Cr.P.C. wherein he nominated the accused for the crime---Neither uncle nor father of the deceased had witnessed the crime---Allegation of illicit relation between the deceased and accused though had been levelled, but no evidence was produced by the prosecution in that respect---Complainant had stated that he was neither an eye-witness to the occurrence nor he could show any person who happened to be in the company of deceased prior, during, or after the occurrence--- Investigating Officer admitted that he had not brought the conversation between the accused and deceased on the file in support of Call Data Record---SIMS of Mobile phone allegedly recovered from the dead body of the deceased and accused were registered in the name of some other persons---SIMS of Mobile phone registered in the name of accused was not ascertained as to from where the same was recovered because of non-availability of recovery memo thereof---Accused could not be said with certainty to have murdered the deceased on the basis of three SIMs and CDR---Neither weapon of offence nor any other incriminating recovery had been made from the accused or on his pointation---Motive had not been established---Trial Court, in circumstances, had not committed any illegality or irregularity, while acquitting the accused---Appeal was dismissed accordingly.

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

----S. 417---Appeal against acquittal---Presumption---Double presumption of innocence was attached to the order of acquittal, which could not be taken away unless it was shown that the judgment of acquittal was arbitrary or contrary to evidence.

2019 Y L R 1838

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

SAJID KHAN---Petitioner

Versus

DISTRICT POLICE OFFICER, BANNU and 3 others---Respondents

Writ Petition No.232-B of 2017, decided on 4th February, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154, 173 & 160---Police Rules, 1934, R. 25.2(3)---Ex-officio Justice of Peace---First Information Report (FIR)---Investigation officer, duty of---Registration of multiple FIRs for the same incident---Arrest of accused---Petitioner assailed order of Ex-officio Justice of Peace whereby his application for registration of FIR was dismissed---Petitioner and his brother was running a tea shop when deceased along with three unknown persons came to their shop and demanded "Bhata"---Deceased, on refusal of petitioner to pay "bhata", made firing which injured the petitioner and his brother---Companions of deceased also made firing at them as a result of which deceased was injured and died---Petitioner and his brother were charged by police for murder of deceased---Validity---Investigating officer is free to entertain any number of versions and cannot commit himself prematurely to any view of the facts, for or against any person---Police was not supposed to investigate the case only as asserted in the FIR and then to lead evidence in the Trial Court on the accusations levelled therein---Investigating officer is bound to collect every possible information about the occurrence and submit a report under S.173, Cr.P.C. not in terms of the allegation of FIR but in accordance with the actual facts discovered during investigation---If a separate FIR is registered then the accused nominated would not automatically be arrested as the law does not permit arrest of a person merely on the basis of bald allegation levelled against him---High Court observed that arrest of a person is not to be a matter of course and it is conditional upon fulfillment of requisite legal requirements--- Constitutional petition was dismissed, accordingly.

Mst. Sughran Bibi v. State PLD 2018 SC 595 and 1983 SCMR 436 fol.

Noorzada Ahmadzai for Petitioner.

Shahid Hameed Quershi, Additional A.G. along with S.H.O. Said Ayaz for Respondents.

2019 Y L R 1945

[Peshawar (Mangora Bench)]

Before Muhammad Ghazanfar Khan, J

NISAR---Petitioner

Versus

Mst. FAUZIA and 2 others---Respondents

Writ Petitions Nos.620-M and 661-M of 2018, decided on 7th February, 2019.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for recovery of dower, maintenance and dissolution of marriage---Divorce pronounced by husband prior to consummation of marriage---Effect---Dower, payment of---Scope---Family Court dissolved marriage on the basis of khula and found that defendant-husband was entitled for recovery of seven tolas gold as dower from the plaintiff-wife---Appellate Court modified the said judgment and held that wife was entitled for the half of the dower fixed at the time of Nikah---Validity---Marriage, in the present case, had not been consummated and dissolved prior to valid retirement---If Talaq was pronounced by the husband prior to consummation then wife was entitled for half of the dower fixed at the time of Nikah---Where Talaq was pronounced on the demand of wife then she was not entitled to half of dower---Marriage was dissolved by defendant-husband on phone, therefore, he was bound to pay half of the fixed dower to the wife---Wife, in the present case, was bound to return half of the dowered ornaments to the husband---Judgment of Family Court was rightly modified by the Appellate Court---Constitutional petition was disposed of accordingly.

Ayat No. 229 of Surah Baqara;by Musa Khan Jalazai PLD 1959 Lah. 566; PLD 1967 SC 97; AIR 1945 Lah. 51; PLD 2013 Pesh. 1; PLD 2013 Pesh. 12; PLD 2016 Pesh. 1; 1988 MLD 1207; Mst. Syeeda Khanatn v. Muhammad Sami PLD 1952 Lah. 113; Ayat No.35 of Sura Nisa; Ayat of the Holy Quran at page 293; Verse No.229 of Sura Baqara; Tafseer Anwaar-ul-Bayan by Hazrat Maulana Muhammad Aashiq Elahi Buland Shahri at p. No.323; Ayat No.237 of Surah Baqara; Ayat-e-Karima in Tafseer-e-Haqqani by Al-Shaikh Abu Muhammad Abdul Haq Al-Haqqani at p. 236;

Muhammad Parwaish Khan for Petitioner (in Writ Petition No.620-M of 2018).

Muambar Khan for Respondent No.1 (in Writ Petition No.620-M of 2018).

Muambar Khan for Petitioner (in Writ Petition No.661-M of 2018).

Muhammad Parwaish Khan for Respondent No.1 (in Writ Petition No.661-M of 2018).

2019 Y L R 1983

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

ASMAT ULLAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Communications and 2 others---Respondents

Writ Petition No. 5939-P of 2018, decided on 19th February, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Direction to public functionaries---Scope---Petitioner was aggrieved of lack of cleanliness on the motorway; removal of fences from different places and violation of rules together with inaction on the part of government to curb such glaring violation of safety rules on the motorway--- Validity--- High Court directed the Federal Government, National Highways Authority and Motorway Police to strictly abide by the law/rules, ensure strict compliance in letter and spirit; keep vigilant eyes on those who tend to flout such law and rules with impunity, as in that case they may expose themselves to actions in law for loss caused to human life and property owing to negligence in performance of their duties---Constitutional petition was disposed of, accordingly.

Noor Alam Khan for Petitioner.

Sikandar Rashid for NHA.

Javed Ali Yousafzai, Assistant Attorney General along with Irfan Anwar, representative of Motorway Police.

2019 Y L R 2060

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

GHAFOOR KHAN---Appellant

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeal No. 217-M and Criminal Revision No. 86-M of 2017, decided on 3rd October, 2018.

(a) Criminal trial---

----Interested witness---Scope---Interested witness is a person who has a motive to falsely implicate other person---Mere relationship of witness with deceased cannot be made a basis to discard testimony of such witness.

Niaz v. The State PLD 1960 SC 387; Sharafat Ali v. The State 1999 SCMR 329; Abdur Rauf v. The State 2003 SCMR 522 and Dilawar Hussain v. The State PLD 2008 SC 131 rel.

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

----S. 302---Qatl-i-Amd---Appreciation of evidence---Weapon, non-recovery of---Effect---Recovery of crime empty from spot---Presence of prosecution witnesses at spot was confidence inspiring---First Information Report was promptly lodged and statements of witnesses that deceased had sustained single firearm injury on right side of his body was also corroborated by medical evidence---Although prosecution failed to establish recovery of Kalashnikov from accused yet such non-recovery was no ground to disbelief case of prosecution---Ocular testimony of prosecution witnesses was duly corroborated by circumstantial evidence, i.e., recoveries effected from spot of blood-stained earth and garments of deceased along with one crime empty of 7.62 bore fully established case of prosecution against accused---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Arbab Tasleem v. The State PLD 2010 SC 642 ref.

Sher Muhammad Khan for Appellant (in Criminal Appeal No.217-M of 2017).

Malik Akhtar Hussain Awan, A.A.G. for the State (in Criminal Appeal No.217-M of 2017).

Mukaram Shah and Salimzada Khan for the Complainant/Respondent (in Criminal Appeal No.217-M of 2017).

Mukaram Shah and Salimzada Khan for Petitioner (in Criminal Revision No.86-M of 2017).

Malik Akhtar Hussain Awan, A.A.G. for the State (in Criminal Revision No.86-M of 2017).

Sher Muhammad Khan for Respondent (in Criminal Revision No.86-M of 2017).

2019 Y L R 2115

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Shakeel Ahmad, JJ

QAIZAR---Appellant

Versus

TARIQ and others---Respondents

Criminal Appeal No. 52-D of 2018 (Motion), decided on 26th February, 2019.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of one hour and forty-five minutes in lodging the FIR---Effect---Occurrence took place at 5.45 p.m. and the report was lodged at about 7.30 p.m.---On the face of it, there was inordinate delay of one hour and forty-five minutes in lodging the report by the complainant---Facts remained that when the deceased succumbed to his injuries on the spot then what prevented the complainant to lodge the report in police station, despite the fact that the distance of police station from the place of occurrence was 10/11 kilometers---Police station was situated on the way to the hospital, which created serious doubt in the prosecution story as to why the report was not lodged at police station---Delay in lodging the report could not simply be brushed aside, as it had assumed great significance and could be attributed to consultations, taking instructions and calculatedly preparing the report.

Ranji Suriya and another v. The State of Maharashtra AIR 1983 SC 810; Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Allegations against the accused persons was that they hit the son of complainant with bats due to some altercation, who died at the spot---Ocular account had been furnished by uncle of the deceased and complainant, father of the deceased---Witness had deposed that he reached to the spot at 5:45 p.m. which was the time of occurrence as mentioned in the FIR---Said version of the witness was improbable and his presence on the spot at the relevant time was highly doubtful---Said witness had admitted during cross-examination that accused was present towards eastern side of the deceased, whereas complainant had negated the version of witness by stating that accused was towards southern side of the deceased---Eye-witness had stated in cross-examination that besides the complainant, witnesses and 15/20 other spectators were present at the time of occurrence and after the occurrence one of the witnesses had arranged vehicle from nearby Adda, but said person had not been cited as witness or for that matter no one amongst the spectators was cited as witness of the occurrence---Despite the alleged presence of eye-witnesses, who happened to be uncle and father of the deceased, at the time of occurrence they remained as silent spectators without any attempt to save their kid (deceased)---Eye-witness had further stated in cross-examination that on the following day at about 08:00 a.m., the dead body of the deceased was handed over to them by the hospital, whereafter, they proceeded to their village---Complainant had negated his testimony by stating in his cross-examination that after receiving the dead body from the hospital, they reached to their village at 08:00 a.m.---Eye-witness had also admitted that he had not signed the report as rider of the same, which created serious doubt regarding his presence on the spot at the time of occurrence---Complainant had deposed that no blood-stained earth was recovered from the spot and the Investigating Officer only prepared the site-plan---Complainant had stated that the police party came to their village on the following day at about 09:00/10:00 a.m., however, the Investigating Officer had belied his statement by stating that the complainant came to the spot at 07:45 a.m.---Investigating Officer had admitted during cross examination that bat was not recovered from the accused---In view of said glaring infirmities surfacing in the prosecution story, particularly in the statement of alleged eye-witnesses, their presence on the spot at the time of occurrence was highly doubtful, therefore, it was rightly disbelieved by the Trial Court---Trial Court had rightly extended the benefit of doubt to the accused on valid and cogent reasons by correctly appreciating the evidence on record and acquittal of the accused did not call for any interference---Appeal was dismissed in limine.

(c) Criminal trial---

----Benefit of doubt---Principle---Single doubt, if found reasonable, would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts were not required to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730; Muhammad Luqman v. The State PLD 1970 SC 10; Tariq Parvez v. The State 1995 SCMR 1345; Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Akram v. The State 2009 SCMR 230; Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Muhammad Zafar and another v. Rustam Ali and others 2017 SCMR 1639 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

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

----S. 417---Appeal against acquittal---Scope---Interference, in appeal against acquittal, was made only when it appeared that there had been gross misreading of evidence amounting to miscarriage of justice---Ordinarily, scope of appeal against acquittal of accused was considered narrow and limited.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 rel.

Shaukatullah Betani for Appellant.

Nemo for Respondents.

2019 Y L R 2157

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

NASEEB ZADA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 101-M of 2017, decided on 1st October, 2018.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Death---Proof---Benefit of doubt---Identification of dead body---Two accused faced trial for committing murder where one accused was convicted and sentenced by Trial Court for imprisonment for life while other accused was acquitted of charge---Dead body was recovered after 36/37 days of the occurrence---Medical report, showed that approximate time between death of deceased and post mortem was 48/72 hours---Dead body recovered on 01.12.2013 might have been killed on 29.11.2013 and not prior to that---Dead body which was recovered and considered to be that of deceased could not be presumed to be relevant dead body---Contradiction existed between version of prosecution and medical evidence and death could not be established before Trial Court---Benefit, in case of doubt, must accrue in favour of accused as a matter of right and not of grace---High Court set aside conviction and sentence awarded to accused as prosecution had failed to prove its case against accused beyond any shadow of doubt and accused were acquitted of the charge---Appeal was allowed accordingly.

Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S.164---Qanun-e-Shahadat (10 of 1984), Art. 43---Confession---Principle---Prosecution relied upon confession of an accused who was arrested during investigation--- Validity--- Maker of confession was arrested on 29-11-2013 and alleged confession was made on 04.12.2013 after delay of 5 days---Recording confession at such belated stage when accused remained in police custody for about 5 days, such confession could not be true---Confession of accused was a circumstantial evidence against co-accused under Art. 43 of Qanun-e-Shahadat, 1984 which needed strong corroboration.

Mushtaq and others v. The State 2012 SCMR 109 and Abdur Rehman's case 2018 YLR 1629 rel.

Bakht Nawaz Khan and Abdul Sattar Khan for Appellant.

Rahim Shah, Asstt. Advocate General for the State.

2019 Y L R 2183

[Peshawar]

Before Ikramullah Khan and Ms. Musarrat Hilali, JJ

NIAZ UDDIN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.35-P of 2018, decided on 27th March, 2019.

Penal Code (XLV of 1860)---

----Ss.302, 171, 449, 148, 149 & 338-E---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, wearing garb or carrying token used by public servant with fraudulent intent, house-trespass in order to commit offence punishable with death, rioting armed with deadly weapon, unlawful assembly--- Compounding of offence---Compromise between parties---Appreciation of evidence---Accused charged for the murder of nine persons were sentenced to death on nine counts---Application for acquittal on the basis of compromise was filed by the petitioner-convict---Trial Court recorded statements of some of legal heirs of deceased but some of them did not record their statements, as such provisions contained in S. 345 Cr.P.C. was not fulfilled therefore, application of petitioner-convict under S. 338-E, P.P.C. was turned down---Later on, petitioner-convict filed another application for remission of death penalty on the basis of compromise which was also turned down---Validity---Record showed that application under S. 338-E, P.P.C. filed by petitioner-convict was dismissed by Trial Court in view of S. 345 Cr.P.C., where compromise was not effected by all the legal heirs of nine deceased---Now all the legal heirs of deceased had effected compromise with the petitioner-convict, therefore, petition was allowed and case was remanded to the Trial Court in view of S.338-E(2), P.P.C. for further proceedings.

Zahir Shah Marwat for Petitioners.

Moeenuddin Humayun, A.A.G. for the State.

2019 Y L R 2213

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

MUHAMMAD PARVAIZ---Appellant

Versus

The STATE through Additional Advocate General, KPK and another---Respondents

Criminal Appeal No. 19-M of 2017, decided on 3rd December, 2018.

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

----S. 365-B---Qanun-e-Shahadat (10 of 1984), Art. 43---Kidnapping to compel for marriage---Appreciation of evidence---Retracted confession---Effect---Call Data Record (CDR), procurement of---Accused was convicted and sentenced to imprisonment for life by Trial court for kidnapping and compelling sister/ abductee of complainant for illegal marriage---None of the prosecution witnesses had witnessed occurrence in person---No one had come forward as witness to have seen accused abducting/ inducing co-accused abductee for purpose of illegal marriage---Testimony of witnesses was based on hearsay evidence which could not be made basis for conviction of accused---Prosecution was bound to have received CDR with an endorsement of cellular company concerned, having stamp and signature thereupon of concerned authorized officer---While taking into possession CDR, through a recovery memo, at least a concerned person should have been associated from cellular company to independently prove recovery---Prosecution could have at least recorded statement of representative of cellular company to effect issuance and receipt of CDR but no such evidence was collected---Confession made by co-accused/abductee was not only later on retracted but from such confession it appeared that she with her own sweet will went to house of accused---Elements of force, pressure and coercion on behalf of accused were missing in confession---Co-accused/abductee stated in her confession that she was divorced by her husband some years back therefore, she had contracted marriage with the accused---High Court set aside conviction and sentence awarded by Trial Court as prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553 and Imran alias Dullay and another v. The State and others 2015 SCMR 155 ref.

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

----Art. 43---Confession in jointly convicted accused---Prerequisite---Retracted confessional statement by one accused cannot be used against other accused---Confession of accused is circumstantial evidence against co-accused under Art. 43 of Qanun-e-Shahadat, 1984 which needs strong corroboration.

Mushtaq and others v. The State 2012 SCMR 109 and Abdur Rehman's case 2018 YLR 1629 rel.

Aftab Alam Yasir and Salman Ijaz for Appellant.

Sahibzada Baha-ud-Din, State Counsel.

Barrister Dr. Adnan Khan for Respondent/Complainant.

Date of hearing: 3rd December, 2018.

2019 Y L R 2296

[Peshawar]

Before Ikramullah Khan and Ms. Musarrat Hilali, JJ

MAPLE LEAF CEMENT FACTORY LIMITED---Petitioner

Versus

FEDERAL INVESTIGATION AGENCY and others---Respondents

Writ Petition No. 2735/P of 2017, decided on 27th February, 2019.

(a) Interpretation of statutes---

----Preamble to a statute---Nature---Preamble is a key to construction of a statue---Scope---Preamble of a statute could not be treated as a mandatory part of the same, and it was there to indicate intention of the Legislature---Provision of a statute if clear, then the same was to be given effect by applying plain and liberal meaning to words used therein and in such a situation, resort to preamble may not be made, however where there existed complexity and doubt in regard to giving effect to words of any provision of a statute, then the preamble would be considered as a vital key for removing doubts.

Director General, FIA and others v. Kamran Iqbal 2016 SCMR 447 rel.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----Preamble & Sched.--- Federal Investigation Agency, jurisdiction of---Dispute/transactions between private individuals--- Petitioner impugned issuance of notice and initiation of investigation by Federal Investigation Agency regarding sale and purchase between petitioner and another party----Contention of petitioner was that Federal Investigation Agency lacked jurisdiction to investigate the matter which was a private transaction---Validity---Dispute between petitioner and the other party was purely civil in nature and a civil suit in respect of the same had already been filed by the other party---Federal Investigation Agency in such a situation had no jurisdiction to conduct an inquiry or investigation into such a matter---Impugned notice and proceedings initiated by Federal Investigation Agency were declared to be without jurisdiction and lawful authority---Constitutional petition was allowed, accordingly.

Pakistan Football Federation and others v. Government of Pakistan and others 2016 YLR 916 rel.

Abdul Hameed Chohan for Petitioner.

Ray Sajid Ali, Syed Farooq Javed and Kifayat Ullah, D.A.G. for Respondents.

Date of hearing: 27th February, 2019.

2019 Y L R 2344

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MEHMOOD KHAN and 3 others---Petitioners

Versus

ABDUR RAUF and 4 others---Respondents

Civil Revision No. 208-M with C.M. No.616 of 2016, decided on 26th October, 2018.

Civil Procedure Code (V of 1908)--

----O.XIV, R.1---Suit for declaration---Non-framing of specific issue---Effect---Trial Court dismissed the suit but Appellate Court remitted the matter after recasting additional issue for further evidence---Validity---When parties from very inception knew with regard to real controversy in dispute then non-framing of specific issue was inconsequential---Issues were to be framed so that parties should be aware of subject matter of controversy requiring relevant evidence to be led upon---Parties in the present case were aware as to what was the subject matter of controversy and what evidence was to be led by each one---Trial Court did not prevent the parties from leading evidence at the trial with regard to the controversy canvassed by the plaintiff in the plaint---Non-framing of issue in such circumstances was inconsequential---Even otherwise issues framed by the appellate court required no further evidence in the present case---Parties had knowledge of the controversy involved and they were afforded full opportunity to lead evidence in support of their pleas which had been availed---Remand of case to lead further evidence was not warranted, in circumstances---Impugned order passed by the appellate court was not sustainable which was set aside---Appellate Court was directed to decide the appeal on the available record---Revision was disposed of, in circumstances.

Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271 and Abdul Karim v. Haji Noor Badshah 2012 SCMR 212 rel.

Hazrat Rehman for Petitioners.

Muhammad Tariq Javed for Respondents.

Date of hearing: 26th October, 2018.

2019 Y L R 2385

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

LAL SAHIB GUL---Petitioner

Versus

ZIA UD DIN and 6 others---Respondents

Civil Revision Petition No. 78-B of 2015, decided on 11th February, 2019.

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

----S. 12---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 42---Agreement to sell---Entry in roznamcha---Scope--- Plaintiffs filed suit for specific performance of contract and claimed that defendant had sold the suit property at the consideration of Rs. 2,82,000/- and roznamcha entry to that effect was entered---Defendant had signed another roznamcha entry in the presence of witnesses as price in the earlier entry was inadvertently got mentioned as Rs. 82,000/---Mutation was duly entered and defendant had executed a power of attorney but despite the same, sale deed was not signed---Mutation was later on rejected by the revenue authorities, in view of the denial of defendant---Trial Court and appellate court concurrently decreed the suit---Validity---Roznamcha entries and mutation were ample proof of the fact that plaintiffs had paid the sale consideration and were willing to enforce their part of the contract but the defendant was not willing to perform his part of the contract---Patwari had to make entries in the record of rights and in periodical record with respect to disputed and undisputed acquisition of any interest---Patwari had, while making entries in the roznamcha, duly followed S. 42 of Khyber Pakhtunkhwa Land Revenue Act, 1967, because he had reason to believe that the parties had entered into sale transaction---Revision petition, being devoid of merit, was dismissed.

Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41 and Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 rel.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42(3)---Making of that part of periodical records which relate to landowners---Scope---Patwari shall enter in his register of mutations every report made to him and shall make an entry in the roznamcha and in the register of mutations.

Sardar Naeem Khan for Petitioner.

Muhammad Ishaq Khan Khattak for Respondents.

Date of hearing: 11th February, 2019.

2019 Y L R 2432

[Peshawar (Mingora Bench)]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

MIANGUL AKBAR ZEB and others---Petitioners

Versus

MUHAMMAD KHALID KHAN and others---Respondents

Writ Petition No. 357-M of 2012, decided on 13th November, 2015.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.45(b)---Land Inquiry Commission---Revenue entries---Respondent had claimed specific share in subject lands through his application before the Land Inquiry Commission---Entries made by Settlement Teshildar in the revenue record showed that other persons had also been granted decrees in the subject lands by the Inquiry Commission besides there were also co-sharers in the same lands---Subject lands measured 32 bakhras (land measurement unit) whereas the claim of all the owners was with regard to 160 bakhras in light of the decrees awarded in their favour by the Inquiry Commission---Actual area on the spot was not confirmed and decrees were passed in favour of claimants before settlement operation and as a result the situation of "one post and lots of candidates" developed--- Settlement Tehsildar formulated a scheme for resolving said problem, on the basis whereof he calculated the entire area proportionate to the established/decreed area of 160 bakhras---Entries made by settlement Tehsildar on basis of said scheme in the Revenue Record in respect of share decreed in favour of respondent were, therefore, correct and in accordance with S. 45(b) of the Khyber Pakhtunkhwa Land Revenue Act, 1967---Furthermore respondent had recorded his statement before the Settlement Tehsildar in light whereof his share was determined, therefore, he was legally estopped by his own conduct to challenge the entries of his share in the revenue record which had been made in accordance with the decree passed in his favour coupled with his own statement and his original claim---Constitutional petitions were allowed in circumstances.

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

----Ss. 3 & 5---Appeal barred by time---Condonation of delay, application for---Reasons for condoning delay not mentioned in the order of Appellate authority---Effect---Since the Appellate authority had not mentioned any reason for condoning the delay caused in filing the appeal, hence, it allowed an appeal which was barred by time and as such the order of Appellate authority was not legally sustainable---Constitutional petitions were allowed in circumstances.

(c) Martial Law Regulations (MLR) No. 123, [dated 11th April 1972]---

----Para. 6(1)---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.45(b)---Decree passed by Land Inquiry Commission---Modifications in said decree by revenue courts---Legality---Respondent and two others had submitted application before the Land Inquiry Commission who decided the case under the powers conferred upon him under the Martial Law Regulations (MLR) No.123---Under para. 6(1) of the said Regulation, the Revenue Courts had got no jurisdiction to modify or call in question the decree passed under that Regulation---Since, the settlement Tehsildar implemented the decree passed under MLR-123 through its order but the higher fora of revenue hierarchy carried out modifications in the decree passed under MLR-123 which had already attained finality, therefore, the impugned orders of revenue authorities were not legally sustainable---Order of Settlement Tehsildar was restored and any entries in the revenue record or mutations in contravention thereof were cancelled---Constitutional petitions were allowed in circumstances.

(d) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 45(b)---Land Inquiry Commission---Revenue entries---Respondent had claimed his specific share in the subject lands mentioned in the application to the Land Inquiry Commission but there was no specification of boundaries in said application---Perusal of the impugned orders by revenue authorities showed that the entire specific Khasra numbers had been ordered to be recorded in favour of respondent and as a result thereof different mutations had also been carried out in his favour---Admittedly the khasra numbers entered in the name of the respondent were still jointly owned by the respective owners and there was nothing on the record to show that partition in respect of the said khasra numbers had been carried out between the respondent and other co-sharers---In such circumstances, it was not understandable how the entire khasra numbers could be entered in the name of respondent alone in the revenue record---Respondent was a co-sharer in the joint khasras to the extent of land decreed in his favour and he would get his specific share with specified boundaries only when proper partition of the joint khasra numbers was carried out, which exercise had not been carried out as yet---Recording in the revenue record the name of respondent as joint owner to the extent of his share decreed in his favour in the specific khasra numbers was correct as ordered by settlement Tehsildar but allotment of the entire khasra numbers to him without partition was not sustainable---Constitutional petitions were allowed in circumstances.

(e) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 163(2)---Additional Commissioner---Review--- Scope--- Revenue official (Additional Commissioner) in his impugned order discussed in detail those points which had already been dilated upon in the orders of different fora of the revenue hierarchy which was not permissible keeping in view the limited and narrow scope of review petition---Order of Settlement Tehsildar was restored and any entries in the revenue record or mutations in contravention thereof were cancelled---Constitutional petitions were allowed in circumstances.

Shah Salam Khan for Petitioners.

Aftab Alam and Adil Khan Tahirkheli for Respondents.

Date of hearing: 13th November, 2015.

2019 Y L R 2464

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

GHULAM ABBAS---Appellant

Versus

ATIF FAROOQ---Respondent

R.F.A. No. 13-D of 2016, decided on 22nd November, 2018.

Civil Procedure Code (V of 1908)--

----O. XXXVII, R. 2---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Summary suit on the basis of pronote---Document, proof of---Procedure---Plaintiff produced scribe of document and one marginal witness of the pronote---Trial Court dismissed the suit filed by the plaintiff---Validity---Plaintiff had failed to prove the execution of pronote and payment of loan---Testimony of scribe and sole marginal witness examined by the plaintiff was devoid of confidence---No explanation had been given for not producing the second marginal witness of the pronote---Evidence produced by the plaintiff was not sufficient to discharge the onus with regard to proof of execution of alleged pronote---Plaintiff had produced photocopy of pronote without following the procedure for producing secondary evidence which rendered the same devoid of evidence---Impugned judgment was based on proper appreciation of evidence---Appeal was dismissed, in circumstances.

Abdul Khaliq v. Muhammad Asghar and 2 others PLD 1996 Lah. 367 and Dil Murad and others v. Akbar Shah 1986 SCMR 306 rel.

Ahsan Bilal Langrah for Appellant.

Waqar Alam for Respondent.

Date of hearing: 22nd November, 2018.

2019 Y L R 2491

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MOHABAT SHAH and 6 others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 16 others---Respondents

R.F.A. No.87-M of 2017, decided on 13th March, 2019.

Land Acquisition Act (I of 1894)---

----Ss. 18, 4 & 23---Reference to court---Compensation, enhancement of---Market value---Determination of---Procedure---Referee Judge enhanced compensation amount from Rs. 30,968/- per kanal to Rs. 12,00,000/- per kanal---Validity---Land owners were to be compensated rather to provide them simple market price of the acquired land---Acquired land was comprised of mountains and the residents of the area had constructed their houses in the said mountains---Land owners had to abandon their place of abode and they had no other land in the area---Compensation of land in question had been determined keeping in view the average of one year sale in the area in the year when notification under S. 4 of Land Acquisition Act, 1894 was issued---Said notification was issued in the year 2010 whereas award was announced on 13-02-2013 and possession was taken by the department after the award---Probable increase in the price of land in the said three years could not be ignored---Similar land was sold in the year 2010 for a consideration of Rs. 12,00,000/---Awarding compensation amount of Rs. 12,00,000/- of the acquired land was not inappropriate---Compensation determined by the Referee Court was correct and in accordance with law---Appeal was dismissed, in circumstances.

Murad Khan through his widow and 13 others v. Land Acquisition Collector Peshawar and another 1999 SCMR 1647; Muhammad Ashraf's case 2011 SCMR 1244 and Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

Haq Nawaz for Appellants.

Haq Nawaz, Asstt. A.G. for Respondents.

Date of hearing: 13th March, 2019.

2019 Y L R 2553

[Peshawar]

Before Qaiser Rasheed Khan and Ishtiaq Ibrahim, JJ

KHALIL-UR-RAHMAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 80-P of 2017, decided on 22nd May, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Prosecution is duty bound to bring home charge against the accused beyond any reasonable shadow of doubt, most particularly in cases where capital punishment is provided---Prosecution is under statutory obligation to bring on record unimpeachable and lucid evidence, which shall satisfy the judicial mind of the court with regard to the proof of charge levelled by the prosecution against the accused indicted for the crime.

(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---Statement of a witness duly recorded under S. 512, Cr.P.C. can be transposed to the trial of accused subsequently arrested and the same will fall within the category of substantive evidence---Yet the court has to evaluate the same on case to case basis with care and caution while considering the intrinsic worth of the statement in the circumstances of each case for the reason that the same has not been subjected to cross-examination.

(c) 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---Benefit of doubt---Prosecution case was that the accused party comprising of five persons including appellants made firing upon the complainant party, due to which son of complainant died---Motive for the commission of offence was alleged murder of son of co-accused who actually died due to heart attack, but the accused party suspected the deceased to have murdered him--- In the present case, the presence of the complainant at the time of occurrence was not believable for the reason that he had neither disclosed the purpose of his visit to the place of occurrence nor he took the dead body of the deceased to the police station or to the hospital---Complainant had been waiting for the arrival of the police at the spot and thereafter lodged the report, whereas it was admitted fact that the place of occurrence was at a distance of two kilometres from police post---Perusal of post-mortem examination report revealed that there were seven entry wounds on the dead body of the deceased---Despite firing by all the five accused with sophisticated weapons, the complainant and alleged eye-witness did not receive a single firearm or lacerated injury---Record transpired that the true mode and manner of the occurrence appeared to have been suppressed---Charge appeared to have been exaggerated and the net had been thrown wide by implicating five persons without assigning any specific role to any of them---Possibility of false implication in such state of affairs, could not be ruled out---Besides the complainant, his nephew/witness was also the eye-witness of the prosecution, but he was abandoned being won over by the defence---Due to non-appearance of said witness adverse inference was to be drawn against the prosecution---Circumstances established that prosecution was pregnant with doubts and dents, benefit whereof would go to the accused-appellants---Appeal was allowed and accused were acquitted, in circumstances.

Farman Ali's case PLD 1980 SC 201 and Sohni's case PLD 1965 SC 111 rel.

(d) 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---Recovery of crime empties---Reliance---Scope---During spot inspection, Investigating Officer recovered five empties of 7.62 bore from the places assigned to the three accused, while three empties of 7.62 bore from the places of two accused, which were inside the sugarcane crops---Said empties were not sent to the Forensic Science Laboratory for ascertaining as to whether those were fired from one weapon or more---Said recovery was inconsequential, in circumstances.

(e) Criminal trial---

----Abscondance--- Effect---Abscondance alone was not sufficient to record conviction on a capital charge--- Abscondance could be used only as a corroboratory and confirmatory evidence in support of ocular account.

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel.

Sahibzada Asadullah for Appellants.

Syed Sikandar Hayat Shah, Addl.A. G. for the State.

Imtiaz-ur-Rehman Khan for the Complainant.

2019 Y L R 2679

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

BAKHT ROIDAR---Petitioner

Versus

BAKHT BAIDAR and others---Respondents

Civil Revision No. 42-M of 2019, decided on 13th February, 2019.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of immovable property against co-owner---Maintainability---No official partition of property in question had taken place---Suit for possession against joint owner was not maintainable---Only remedy available to the co-owner was to file a suit for partition of the entire joint property.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325; Muhammad Shafi and 2 others v. Munshi and 3 others 1979 CLC 230 and Zulfiqar and others v. Noor Muhammad and others 2002 CLC 711 rel.

Abdul Halim Khan for Petitioner.

Nemo for Respondents.

2019 Y L R 2699

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

SANA ULLAH---Appellant

Versus

NAIK MUHAMMAD and others---Respondents

R.F.As. Nos. 94-D to 101-D of 2018, decided on 25th October, 2018.

Civil Procedure Code (V of 1908)--

----O. VII, R. 11---Plaint, rejection of---Factors to be considered---Only averments of the plaint and documents appended with the same were to be considered and nothing else, while rejecting the plaint.

Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh and another (Privy Council, 1908 (35) L.R.-I.A. 189; AIR 1947 PC 108; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

Malik Hidayat Ullah Malana for Appellant.

Bahadur Khan Marwat for Respondents.

2019 Y L R 2728

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

Mst. TAJ BIBI and another---Petitioners

Versus

Mst. GUL HIZARA and 7 others---Respondents

C.R. No. 306-M with C.M. No.403 of 2013 and C.R. No.373-M of 2012, decided on 17th January, 2019.

(a) Islamic law---

----Inheritance---Remote blood relative was not entitled to the legacy of deceased in presence of nearer blood relative.