YLR 2020 Judgments - Pakistan Legal Archive

Courts in this Volume

Election Tribunal Balochistan
Federal Shariat Court
Gilgit Baltistan Chief Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court
Supreme Court Azad Kashmir

Election Tribunal Balochistan

YLR 2020 ELECTION TRIBUNAL BALOCHISTAN 2031 #

2020 Y L R 2031

[Election Tribunal Balochitan]

Before Abdullah Baloch, J

Mir LASHKARI RAISANI---Petitioner

Versus

QASIM KHAN SOORI and others---Respondents

Election Petition No. 10 of 2018, decided on 27th September, 2019.

(a) Elections Act (XXXIII of 2017)---

----Ss. 139, 84, 95, 154 (1)(b)(ii)(iii), 156(2) & 158---Constitution of Pakistan, Art. 218 (3)---Election petition---Election for the seat of Member National Assembly---Allegations of illegal and corrupt practices---Violation of provisions of Elections Act, 2017---Effect---Bogus votes---Verification of thumb impressions of voters on the counterfoils of ballot papers---Witnesses produced by the petitioner had specifically alleged that votes obtained by the petitioner were snatched, double stamped and spoiled---Large number of votes were declared invalid and excluded from the total count---Rejection of votes on widespread scale could not be ruled out of consideration and the assertions of witnesses of petitioner---Sufficient evidence had been produced by the petitioner with regard to commission of massive rigging in the elections by the supporters and agents of returned candidate with the connivance of polling staff---Respondent had failed to produce even a single evidence in support of his contention---Bald denial of returned candidate was not enough to discard the evidence produced by the petitioner---Bogus votes had been cast without appending fingerprints of the voters on the counterfoils of ballot papers---Report prepared by National Database and Registration Authority for verification of thumb impressions of voters on the counterfoils of ballot papers had established the allegations of casting bogus votes by means of impersonation---Neither the votes cast on invalid Computerized National Identity Card were acceptable nor mentioning of incomplete Identity Card number could be considered as human error---More than 45% of votes had not been compared by the National Database and Registration Authority which had created doubt with regard to fate of election---Election Commission was bound to provide indelible ink for fingers or thumbs and to ensure prescribed procedure of issuing ballot papers in the polling stations---Election Commission had failed to conduct free, fair and transparent election in the constituency---Provisions of Elections Act, 2017, had not been adhered at the time of polling which had paved the way of bogus voting---Election Commission had violated the law and such election could not be termed free, fair and transparent---Detection of huge quantity of bogus votes by National Database and Registration Authority had materially affected the result of election---Corrupt and illegal practices had occurred on the day of election in the present case---When law had prescribed a method for doing a thing in a particular manner then such provision of law should be followed and doing a thing in a manner other than provided manner would not be permitted under the law---Petitioner filed application for recounting of votes prior to commencement of consolidation proceedings but same had been rejected without any reason in an arbitrary manner---Returning Officer was biased while conducting elections in the constituency---If contravention or corrupt or illegal practice had been proved then Election Tribunal was required to declare the election of returned candidate void---Impugned notification whereby respondent was declared as returned candidate was set aside by the Election Tribunal, in circumstances---Election Commission was directed to hold fresh election in the constituency in accordance with law---Election petition was allowed, in circumstances.

Nawab Ali Wasan v. Syed Ghous Ali Shah 2018 SCMR 87; Mir Shah Nawaz Khan v. Manzoor Hussain Wassan and 13 others 2014 CLC 1042 and Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 ref.

Muhammad Siddique Baloch v. Jehangir Khan/Tareen PLD 2016 SC 97; Feroze Ahmed Jamali v. Masroor Ahmed Khan 2016 SCMR 750 and Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

(b) Administration of justice---

----When law had prescribed a method for doing a thing in a particular manner then such provision of law should be followed and doing a thing in a manner other than provided manner would not be permitted under the law.

Muhammad Riaz Ahmed, T.H. Khan and Bilal Haider for Petitioner.

Dr. Babar Awan, Nazar Muhammad Baloch, Ayub Tareen, Zahir Achakzai, Abdul Qadoos and Jamil Agha for Respondent No.1.

Nazir Agha for Respondent No.5.

Zubair Naseem Khawaja, Legal Advisor NADRA along with Abdul Wahid Sherani, Assistant Director NADRA.

Naseer Ahmed, Senior Assistant, ECP.

Federal Shariat Court

YLR 2020 FEDERAL SHARIAT COURT 195 #

2020 Y L R 195

[Federal Shariat Court]

Before Sh. Najam ul Hasan, C J and Shaukat Ali Rakhshani, J

GOHAR KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 17/I of 2018 and Jail Criminal Appeal No.1/I of 2019, decided on 22nd February, 2019.

(a) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence required to be appreciated on the dictum that while appreciating the evidence and holding accused guilty of the charge, the facts of the case must be consistent with guilt of the accused---Chain of evidence must be completed in all respect leaving no reasonable ground about the innocence of the accused---Suspicion, however strong, could not be given preference upon the proof---Chain of events were to not break, which must be conclusive beyond any shadow of doubt.

Imran Alias Dolay v. The State and others 2015 SCMR 155; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Naheed Akhtar v. The State 2015 YLR 1279 rel.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery, common intention, haraabah, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the son of the complainant after robbery---Complainant categorically stated that he knew nothing as to who committed murder of his son, he did not say anything about his son leaving his house towards crime scene on his motorcycle and about the motorcycle having been lost or taken away---Complainant got recorded statement under S. 164, Cr.P.C. before Judicial Magistrate, after almost 10 days of the occurrence, improvising his earlier statement by disclosing about snatching of the motorcycle, mobile set and Rs.1500/- as well as introducing the story that a couple of days before the occurrence, he was told by his son that accused and co-accused were seen on the crime scene earlier---Complainant had advised his son to change the route, since there was no other way, therefore, the occurrence took place---Record showed that complainant had nominated and implicated the accused persons through statement recorded under S. 164 Cr.P.C., when the accused were arrested, casting doubt in his stance, whereupon no explicit reliance could be placed---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2018 YLR 2363; 2018 PCr.LJ Note 180; 2017 SCMR 986; 2015 SCMR 155; 2011 SCMR 323; 2008 SCMR 707; PLD 2008 SC 349; 2018 SCMR 2039; 2017 PCr.LJ 114; 2017 YLR Note 272; 1982 SCMR 531; PLD 1987 Quetta 77; PLD 2006 SC 87 and PLD 1993 FSC 44 ref.

----Witness, testimony of---Improvements made by witness in order to strengthen the prosecution case---Effect---Such kind of statements, which were made with the purpose to strengthen the case of the prosecution on the behest of the Police Officials or some other ulterior motives to get the suspect convicted by hook or by crook was deprecated.

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

----S. 161---Supplementary statement---Scope---Nomination through supplementary statements depreciated.

Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----S.161---Non-recording of statement---Effect---If witness had not got recorded his statement as provided under S. 161, Cr.P.C., he could not be confronted with his earlier statement, which was an indefeasible right as construed under S. 162, Cr.P.C. henceforth, unless such right was allowed to be exercised to contradict him, such statement of witness could not be used against the accused facing trial.

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

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and The State v. Behram Khan 2016 MLD 63 rel.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery, common intention, haraabah, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of cell phone---Reliance---Scope---Record showed that said cell phone had not been recovered directly from the possession of any of the accused persons---Admittedly, the recovery had been effected from prosecution witness, who disclosed that he had purchased the said mobile from other prosecution witness---Record reflected that both the said witnesses were themselves suspect for having been found indulging in the sale and purchase of the said mobile set as such they were the prime suspects of the offence punishable under S. 411, P.P.C., but the police never interrogated them as an accused or suspect---Co-accused had sold out the plundered mobile but in no way it connected the co-accused/appellant with the murder of the deceased---Snatched mobile set had not been recovered from the possession of accused and the link in between was mysteriously missing, therefore, recovery was unworthy of credence---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery, common intention, haraabah, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of parts of robed motorcycle---Reliance---Scope---In the present case, the recovery of parts of robed motorcycle were made on the pointation of accused persons from the shop of prosecution witness and garage of mechanic/witness from whose possession the parts of snatched motorcycle were recovered---Said shop keeper and mechanic had not been interrogated as suspects, which inferred to believe that they had given statement at the behest of the Investigating Officer to save their own skin---Relying upon testimony of such witness was not safe---Recovery of said parts of the robed motorcycle could have been relevant and considered as a corroborative piece of evidence, if jointly by the accused persons, which was not permissible under the law---Recovery of the parts of motor cycle could have added to the case, if complainant had reported about the robbery of the motorcycle in his promptly lodged FIR---Prosecution had failed to establish that the deceased was the owner and was seen riding the said motorcycle on the fateful day---Ownership documents pertaining to the invoice of the motorcycle in his name had also not been produced and exhibited during the trial---Said recovery was inconsequential---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(i) Criminal trial---

----Joint recovery---Scope---Reliance on joint recovery was not approved.

Muhammad Mushtaq v. Mustansar Hussain 2016 SCMR 2123 and Sajjad Bhatti and others v. The State 2017 PCr.LJ 114 rel.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, robbery, common intention, haraabah, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon and empties---Delay in dispatch of recovered weapon---Effect---Accused was charged for committing murder of the son of the complainant after robbery---Record transpired that the crime empties were secured from the crime scene on 31.08.2015 on the day of murder of the deceased but police retained the same in its possession, whereas the crime weapon was allegedly recovered on 11.9.2015, whereafter, the empties and alleged crime weapon were sent together along with two empties to the Forensic Science Laboratory for ballistic analysis, which had diminished its evidentiary value---Investigating Officer sent the said parcels on 11.9.2015, whereas the Forensic Science Laboratory Report showed that the parcel of pistol and two empties in question were received on 15.9.2015---Record was silent as to where the said parcels of empties and pistol were kept lying during interregnum, creating suspicion into the recovery itself---Prosecution had failed to offer explanation to such effect, therefore, the entire proceedings had become dubious---Prosecution had failed to produce the witness, who had taken and provided the said parcel of pistol and empties to the Forensic Science Laboratory for analysis, who could have explained such factum but no such effort had been made, which made the report doubtful and not worthy of reliance---Appeal was allowed and accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

Ali Khan v. The State 1999 SCMR 955; Muhammad Farooq and another v. The State 2006 SCMR 1707; Ali Sher and others v. The State 2008 SCMR 707 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(k) Criminal trial---

----Evidence---Corroboration---Principle--One tainted piece of evidence could not corroborate other tainted piece of evidence.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Shaiber Khan for Appellant (in Criminal Appeal No.17/I of 2018).

Abida Safdar, Assistant Advocate General, KPK for the State (in Criminal Appeal No.17/I of 2018 and Jail Criminal Appeal No. 1/I of 2019).

Complainant in person (in Criminal Appeal No.17/I of 2018 and Jail Criminal Appeal No. 1/I of 2019).

Anees Muhammad Shahzad for Appellant (in Jail Criminal Appeal No. 1/I of 2019).

YLR 2020 FEDERAL SHARIAT COURT 300 #

2020 Y L R 300

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

AMB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 21/K of 2018, decided on 29th April, 2019.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Delay of about 18 hours in lodging the FIR---Effect---Explanation for delay offered by complainant was that he was engaged in tracing the culprits and then time was spent in the burial of the deceased---Albeit, the explanation offered was an omnibus reason but since no one had been nominated as a culprit, therefore, the delay occurred in lodging of the FIR against unknown perpetrators had not caused any prejudice to the accused-appellant or else---Delay being not a result of any manipulation could be ignored subject to its veracity and truthfulness with regard to identity of the accused-appellant and other aspects of the events.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons while armed with deadly weapons signalled them to stop the vehicle and when they accelerated the culprits made straight firing upon them, whereby a bullet hit the nephew of complainant, who died in the hospital---Ocular account of the occurrence had been furnished by two witnesses including complainant---Complainant had testified in line with his averments so incorporated in the FIR and identified the accused-appellant and acquitted accused persons for the first time in court---Accused-appellant was identified as the assailant, who made fire upon the deceased---Prosecution was supposed to have conducted identification parade so as to identify accused with specific roles to rule out any suspicion and doubt in their identification for safe administration of justice---Complainant had not provided description of the culprits, such as their features, built, height and other requisites to identify them subsequently---Other eye-witness had maintained that on the day of occurrence they were confronted with five culprits, who were identified by them in the head lights of the vehicle---Said witness added that one of the culprits armed with Kalashnikov, two with pistols and other two with hatchets signalled them to stop the vehicle and when they did not stop, the preperators armed with Kalashnikov made fire upon them passing through the front wind screen, which hit the deceased on his neck, making exit through and through from the right side of window glass---Witness had testified that as they crossed, the accused made 2/3 fires whereof a bullet hit on the back side of the tyre but they moved ahead covering 1 or 1.25 kilometer and thereafter stop the vehicle---Said witness stated to have identified accused, who was armed with Kalashnikov and who were armed with hatchet and pistol---Usually, said witness did not travel with complainant, which made his presence in the said vehicle on the day of incident---Admittedly, it was a dark night incident as such it was impossible for the complainant and eye-witness to identify the culprits with such details as narrated by them with specific attribution of the roles and weapons in their hands---Circumstances suggested that it was impossible and improbable for the said prosecution witnesses to identify the culprits from a running vehicle during firing as they had merely a glance in the headlights of the culprits---Nomination of the appellant and acquitted co-accused persons while recording statement under S. 164, Cr.P.C. was also inconsequential as it amounted to supplementary statement---Such statement was an afterthought and inadmissible in evidence, holding the same to be a dishonest improved statement to strengthen the case of the prosecution---Medical evidence did not coincide with the ocular testimony of eye-witnesses rather the medical evidence reacted to their deposition making the case doubtful---Ocular testimony furnished by the eye-witnesses was that the assailants made a fire which hit the front wind screen, but the injuries sustained by the deceased showed entry wound on the back of the head with fracture making an exit wound on left side of the face---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt and the findings arrived at by the trial court were contrary to the evidence on record---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Akhtar Ali and others v. The State 2008 SCMR 6; Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951 and Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 rel.

----Chance witness---Statement of chance witness---Scope---Testimony of a chance witness could not be brushed aside merely for such reason, if otherwise his statement rang true and was confidence inspiring.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Benefit of doubt---Delay in recording the statements of witnesses---Effect---Statement of witness was recorded by police after two days of the occurrence without any justifiable explanation---Statement of witness under S. 164, Cr.P.C., was recorded after 18 days of the occurrence--Recording of statement at such a belated stage reduced the efficacy of testimony of the witness, more particularly, when no explanation found mentioned on record as to how witness came to know about the appellant and acquitted co-accused persons.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Kalashnikov loaded with 30 live bullets and ten live rounds was recovered from the accused-appellant whereas nothing was recovered from acquitted co-accused---Record showed that uncle of deceased was marginal witness of inquest report, memo of inspection of dead body, marginal witness of recovery of blood-stained articles, blood-stained clothes of deceased, mashir of empty shell as well as recovery of the Kalashnikov---Said witness was not resident of the village wherefrom the recovery of weapon was statedly affected from the accused-appellant but of a village far away from the village of the accused-appellant---Making uncle of deceased marginal witness of the recovery of crime weapon offended the provision of S. 103, Cr.P.C.---Non-associating witness of the recovery from the locality, raised question with regard to proving the recovery independently---Many contradictions were found with regard to the mode and manner of the apprehension of the accused-appellant and recovery of crime weapon from his possession---Investigating Officer in his cross-examination had admitted that at the relevant time several persons were present, but he did not make any effort to make them witnesses, reducing the evidentiary value of the said recovery---Investigating Officer further stated that when they reached at the house of accused-appellant, he saw three persons sitting there and on seeing the police party, the accused-appellant along with two persons came out from the house and tried to run away but police apprehended them---If they were inside the house then how come police saw them sitting, when admittedly they did not enter into the house---If accused were encircled then instead of leaving behind the Kalashnikov or hiding it somewhere in the house, why would the accused-appellant take it with him and then try to run away, particularly, when he did not even try to use the same---Testimony of the said witnesses of recovery of crime weapon, in circumstances, did not inspire confidence---Undeniably, the prosecution had secured and placed on record the positive Forensic Science Laboratory Report, in order to convince the court that the crime weapon recovered from the accused-appellant was used in the murder of the deceased as it matched with the empty recovered from the crime scene---Scanning the positive Forensic Science Laboratory Report showed that, after the recovery of empty made from the crime scene on 6th June, 2008, the same should have been sent to Forensic Science Laboratory but instead it was retained and after recovery of Kalashnikov, crime weapon, made on 15th June, 2008, both the empty and Kalashnikov were sent together for analyses to procure positive Forensic Science Laboratory Report---Such practice had not only been discouraged but had also been held to be inappropriate, raising suspicion, manipulation and tampering with such piece of evidence.

Ali Khan v. The State 1999 SCMR 955; Muhammad Farooq and another v. The State 2006 SCMR 1707; Mushtaq and 3 others v. The State PLD 2008 SC 1; Ali Sher and others v. The State 2008 SCMR 707 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(f) Criminal trial---

----Medical evidence---Nature---Medical evidence was not a corroborative piece of evidence rather confirmatory in nature, which could be used by the defence to confirm or contradict the medical evidence with the ocular evidence---Medical evidence could not identify the accused but confirm the locale, duration, kind of weapon used and timing of the injuries inflicted but in no way could be considered as a corroborative piece of evidence connecting accused with the crime.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

Ms. Saleha Naeem Ghazala for Appellant.

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

YLR 2020 FEDERAL SHARIAT COURT 391 #

2020 Y L R 391

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C J Syed Muhammad Farooq Shah, J

MUHAMMAD MUMTAZ---Appellant

Versus

MUHAMMAD RAMZAN and 5 others---Respondents

Criminal Appeal No. 321/L of 2002, decided on 25th September, 2019.

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

----S.154---First Information Report---Delay in lodging FIR---Scope---Mere delay in lodging FIR is not fatal, however, where circumstances give rise to deliberation and consultation the delay cannot be taken lightly.

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

-----Ss. 10 & 16---Abduction for Zina---Appreciation of evidence---Benefit of doubt---Delay of about seven days in lodging the FIR---Effect---Accused were charged for abducting the daughter of complainant in order to commit zina with her---No justifiable and cogent explanation was available for delay in lodging the FIR---Inordinate delay of seven days in lodgement of FIR, without any sufficient reasons or convincing explanation furnished by the complainant for such a long delay, was fatal.

Muhammad Siddique v. The State and others 2019 SCMR 1048 rel.

-----Ss. 10 & 16---Abduction for the purpose of zina---Appreciation of evidence---Benefit of doubt---Appeal against acquittal---Accused were charged for abducting the daughter of complainant in order to commit zina with her---Story as set up by the prosecution was not confidence inspiring and could not be considered trustworthy due to contradictions and inconsistencies in between the ocular account and circumstantial/medical evidence---Prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Reasoning of acquittal recorded by the Trial Court did not warrant any interference as impugned judgment did not suffer from lack of reading of evidence---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Scope---Scope of interference in appeal against acquittal is limited---Accused, after acquittal will be presumed to be innocent and the presumption of innocence is double.

Nazir Ahmed Bhutta for Appellant.

Aamir Majeed Rana for Respondents.

Ch. Muhammad Sarwar Sidhu, Additional P.G., Punjab for the State.

YLR 2020 FEDERAL SHARIAT COURT 696 #

2020 Y L R 696

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

TAJ ALI KHAN---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Appeal No. 20/P of 2007, decided on 15th April, 2019.

(a) Criminal trial---

----Decision of facts---Principle---Criminal case is to be decided on its peculiar facts and circumstances because facts of two criminal cases are never alike.

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

----Ss. 365, 506 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11---Criminal Procedure Code (V of 1898), Ss. 164 & 417---Kidnapping to compel for marriage and criminal intimidation---Appeal against acquittal---Appreciation of evidence---Two views of facts---Testimony of witness before Magistrate---Opportunity to cross-examine, non-providing of---Complainant lodged F.I.R. against accused persons for kidnapping abductee to compel for marriage but Trial Court acquitted them--Validity---Two different statements were recorded under S.164, Cr.P.C. of abductee in absence of accused persons who were not afforded opportunity to cross-examine such witness---Deposition of abductee, more particularly parts of her cross-examination were not trustworthy, inspiring confidence or consistent---Duty was cast upon prosecution to prove its case beyond shadow of reasonable doubt---When two views were possible, view in favour of accused was to be given preference---Evidence and material brought by prosecution on record was not sufficient to convict accused persons---Federal Shariat Court declined to interfere in order passed by Trial Court as it neither suffered from misreading, non-appraisal of evidence nor was based upon surmises, suppositions and conjectures---Order of acquittal by Trial Court was elaborate and speaking one and Trial Court after scanning evidence correctly reached conclusion that prosecution had failed to bring home charge against accused persons---Appeal was dismissed in circumstances.

PLD 1994 SC 31; 2010 SCMR 1592 and 2017 SCMR 633 rel.

Sahibzada Asadullah for Appellant.

Siffat Ali Khan Khattak for Respondents.

Muhammad Sohail Khan, Assistant Advocate-General, Khyber Pakhtunkhwa for the State.

YLR 2020 FEDERAL SHARIAT COURT 754 #

2020 Y L R 754

[Federal Shariat Court]

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

MUSHTAQ AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.55/L of 2007, decided on 29th April, 2019.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12 [since omitted]--- Unnatural offence---Kidnapping or abducting in order to subject person to unnatural lust---Appreciation of evidence---Appeal against acquittal---Non-production of victim---Dishonest improvements---Enmity between complainant and accused---Unnatural conduct---Contradiction in ocular and medical evidence---Effect---Accused was alleged to have committed carnal intercourse with the son of complainant---Report in respect of the incident was made to the police on the next day---Victim, being minor, was given up---Complainant had made several improvements in his deposition---Eye-witness admitted that the complainant and his relatives had litigation with the accused party---Accused, at the time of incident, was about 13 years old and was physically weak but the complainant and eye-witness did not chase him nor raised hue and cry to get hold of him---Complainant admitted that if they had tried they could have apprehended the accused---Doctor, who examined the victim, did not observe any mark of violence on his body---Report of Chemical Examiner revealed that swabs taken from the victim's body were not stained with semen---Doctor opined that no penetration had taken place---Site plan showed that the place of occurrence was an open place and situated on a thoroughfare street with surrounding houses on one side---Occurrence could have been seen by a number of persons, who were residing in the nearby houses but none appeared before the court---Close relative of the complainant appeared in defence and categorically denied that any such occurrence had ever taken place---Impugned judgment was neither illegal nor any misreading or non-reading of evidence was pointed out that called for interference---Appeal against acquittal was dismissed.

Muhammad Jehangir Khan for Appellant.

Khawaja Muhammad Ajmal for Respondent.

Ali Hassan, District Public Prosecutor for the State.

YLR 2020 FEDERAL SHARIAT COURT 881 #

2020 Y L R 881

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

KHAN MIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.27/I of 2011, decided on 26th March, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Prosecution has to stand on its own legs and any doubt arising out of case has to be resolved in favour of accused.

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

----Ss. 395 & 511---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 24---Robbery or attempt to commit robbery---Appreciation of evidence---Benefit of doubt---Recovery of articles---Proof---Unexplained delay in registration of FIR---Accused was sentenced and convicted by Trial Court for committing and attempting to commit robbery---Validity---Entire investigation was carried out by complainant and his companions and role of investigating officer and Levies was secondary---Prosecution had not gathered tangible evidence against accused to establish allegations charged with---Nothing was available on record that accused had committed robbery or dacoity and that some snatched articles were recovered from his possession by drivers of truck, who deposited the same---Except an illicit weapon nothing was recovered from accused---Prosecution failed to establish as to how cash amount, two mobiles and two cards etc. allegedly recovered from accused were handed over by drivers to the Levies personnel---False implication of accused could not be ruled out as FIR was lodged after consultation and deliberation and delay of 21 hours in lodging same was not explained and such factors reacted on credibility of version of prosecution---Federal Shariat Court set aside conviction and sentence of accused as prosecution had failed to prove any case against accused beyond reasonable doubt---Appeal was allowed in circumstances.

Muhammad Wasay Tareen for Appellant.

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

YLR 2020 FEDERAL SHARIAT COURT 948 #

2020 Y L R 948

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

SIKANDAR alias SIKOO---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.20/I of 2018, decided on 10th May, 2019.

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

----Art. 22---Identification parade---Evidentiary value---Picking up of an accused in identification parade is not substantive piece of evidence but is merely corroborative in nature---Test of identification parade and correct pointing out of accused person is not a legal requirement and its failure was not fatal to case of prosecution.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Muhammad Akram Rahi and others v. The State and others 2011 SCMR 877; Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215; Kanwar Anwaar Ali's case PLD 2019 SC 488; Azhar Mehmood and others v. The State 2017 SCMR 135; Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 and Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227 rel.

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

----Ss. 302 (b), 393, 398, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qanun-e-Shahadat (10 of 1984), Arts. 22, 38, 39 & 40---Qatl-i-amd, robbery and haraabah---Appreciation of evidence---Confession of accused in custody---Identification parade---Procedure---Testimony of eye-witness---Complainant was son of deceased who lodged FIR against accused persons for committing qatl-i-amd, robbery and haraabah---Testimony of eye-witness was under influence of high stress because not only occurrence took place at gun point abruptly within a spell of few movements but also he was under threat of weapon focus obviously aiming at him as well as his father under threat of life---Eye-witness did not give detailed features of culprits who aimed at them and firing upon his father except describing only one culprit firing at his father with a cloudy description that said culprit was of tawny complexion and long hairs---Description furnished by eye-witness was insufficient and it was unsafe to believe such eye-witness who could not identify culprits of crime in definite terms---Conduct of eye-witness was unworthy of credence as he was over ambitious in implicating co-accused as well as in identification parade despite the fact that earlier before he had not furnished his description---Infirmities committed during course of identification test and probable exposure of accused to eye-witness made entire identification parade violative of law---Testimony of eye-witness alone and identification parade wherein he identified accused were unsafe to be relied upon for holding accused culpable---Findings of Trial Court were result of misreading and non-reading of evidence---Ocular evidence of eye-witness was untrue and non-confidence inspiring--- Identification parade suffered from various infirmities and recovery of crime weapon made from co-accused and positive Forensic Science Laboratory report of pistol were irrelevant enabling accused for benefit of doubt---Federal Shariat Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed in circumstances.

Mian Sohail Ahmed, Abdul Rashid and Rashid Aziz Rana v. The State and others 2019 SCMR 956; Zia Ur Rehman v. The State 2000 SCMR 528; Hashim Qasim and another v. The State 2017 SCMR 986; Ali Sher and others v. The State 2008 SCMR 707; Mushtaq and 3 others v. The State PLD 2008 SC 1; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Malik Abdul Haq for Appellant.

Syed Abdul Baqar, Additional Prosecutor General, Balochistan for the State.

Mian Tahir Iqbal Khattak for the Complainant.

YLR 2020 FEDERAL SHARIAT COURT 1033 #

2020 Y L R 1033

[Federal Shariat Court]

Before Sh. Najam ul Hasan, C.J. and Mehmood Maqbool Bajwa, J

STATE through Deputy Attorney General for Pakistan---Appellant

Versus

IBRAHIM and another---Respondents

Criminal Appeal No. 141-Q of 1998, decided on 19th December, 2017.

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

----Arts. 3, 4 & 26---Criminal Procedure Code (V of 1898), S. 265-K---Prohibition of manufacture, etc of intoxicants, owning or possessing intoxicants---Prosecution appealed against the premature acquittal of respondents under S.265-K, Cr.P.C.---Only evidence available against the respondents was the statements of complainant and other witnesses, besides recovery memo through which charas was secured---Contents of the FIR as well as report under S. 173, Cr.P.C. revealed that the respondents were named in the FIR on source report i.e. information furnished by spy---Name and particulars of the informer was not disclosed---Implication of respondents on the basis of information furnished by secret sources, by itself was not sufficient to connect them with the offence---Nothing was available in the deposition of complainant which suggested that contraband material, seized from the spot, was owned by the respondents---Statements of witnesses other than complainant were ditto copy of the FIR---Federal Shariat Court held that implication of the respondents was a result of hearsay evidence and that no probability of their conviction existed---Appeal was dismissed.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

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

----S. 265-K---Object and scope of S.265-K, Cr.P.C.---Section 256-K, Cr.P.C. empowers the court to acquit an accused at any stage of the case if it considers that there is no probability of his conviction---Section 256-K, Cr.P.C. does not qualify the stage of exercise of powers in view of the expression "at any stage"---Only condition imposed is to provide "right of hearing" to the prosecutor and then reasons are required to be recorded to reach the conclusion---Purpose and object behind incorporation of S.265-K, Cr.P.C. is to prevent rigors of trial when it is apparent that there is no probability of conviction of the accused---Evidence available with the prosecution has to be examined, as it is, whether produced or yet to be recorded and while taking it as gospel truth, it has to be considered whether there is any probability of conviction of the accused---If the court considers that there is no probability of conviction then recording of further evidence would result in wastage of time and will not serve any useful purpose---Evidence in any form has to be "scanned" and "cursory examination" will not be sufficient to satisfy one of the yardsticks, i.e., "consider"---Conscious application of judicial mind is required for evaluation of incriminating material collected during the course of investigation in order to test the same on the touchstone of "probability"---Full-fledged trial has to be conducted in order to provide fair opportunities to the prosecution to prove its case, however, departure can be made from the settled practice when "Extraordinary circumstances" are shown---"Extraordinary circumstances" mean and include the inability of prosecution to collect incriminating evidence during the course of investigation, sufficient to record conviction---Material for consideration under S.265-K, Cr.P.C. is the same as suggested in S.265-D Cr.P.C., if the evidence had not been recorded.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

----S. 265-K---Expression "Consider" in S.265-K, Cr.P.C.---Meaning: Think carefully about (something), typically before making a decision.

Oxford Dictionary of English Second Edition ref.

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

----S. 265-K---Expression "probability" in S.265-K, Cr.P.C.---Meaning---Quality or state of being probable; the extent to which something is likely to happen or be the case.

Oxford Dictionary of English Second Edition ref.

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

----S. 265-C---Supply of statements and documents to the accused---Purpose---Scope---Purpose and object to supply the copies of statements of witnesses recorded under S. 161, Cr.P.C. as envisaged by S.265-C, Cr.P.C. is to inform the accused regarding the case of prosecution suggesting precise accusation and evidence collected during the course of investigation.

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

----Arts. 3 & 4---Prohibition of manufacture, etc of intoxicants---Owning or possessing intoxicant---Scope--- Conviction cannot be recorded simultaneously under Arts. 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979.

(g) Words and phrases---

----"Considered"---Meaning: Arrived at by careful thought and evaluation.

Lexicon Webster Dictionary Volume-I ref.

(h) Words and phrases---

----"Probable cause"--- Meaning.

Lexicon Webster Dictionary Volume-II and Black's Law Dictionary (Eighth Edition) ref.

Yahya Khan, Deputy Prosecutor General, Balochistan for Appellant.

Shams-ud-Din Achakzai, Special Prosecutor for the ANF.

Najam-ud-Din Mengal for Respondents Nos.1 and 2.

YLR 2020 FEDERAL SHARIAT COURT 1288 #

2020 Y L R 1288

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

SAJJADULLAH and others---Appellants

Versus

The STATE and others---Respondents

Jail Criminal Appeal No.20-I, Criminal Appeal No. 21-I and Criminal Revision No.2-P of 2019, decided on 28th January, 2020.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b)(c) & 394---Criminal Procedure Code (V of 1898), Ss. 221, 222, 223, 225 & 367---Qatl-i-amd and Robbery---Appreciation of evidence---Framing of charge, requisites of---Non-specifying role--- Effect--- Accused persons were convicted and sentenced to imprisonment for life for committing qatl-i-amd of deceased---Plea raised by accused persons was that judgment passed by Trial Court was devoid of legal veracity and claimed de novo trial---Validity---Trial Court while framing charge had not adhered to requisites of framing charge contemplated under Ss. 221, 222 & 223 of Cr.P.C.---Neither Trial Court specified the roles of each accused person played by them nor specified that as to whether offences were committed by them conjointly in furtherance of common intention or individually---Even name of deceased was wrongly mentioned and charge so framed misled defence to take plea which was in violation of S.225, Cr.P.C. and culminated into miscarriage of justice and caused prejudice---Judgment rendered by Trial Court was not in consonance with S. 367(1)(5), Cr.P.C.---Federal Shariat Court set aside judgment passed by Trial Court and remanded matter for de novo trial by framing charge strictly in accordance with provisions of law---Order accordingly.

Murad Baloch v. The State 2011 SCMR 1417; Farrukh Sayyar and 2 others v. Chairman, NAB Islamabad and others 2004 SCMR 1 and Sahib Khan and 4 others v. The State and others 1997 SCMR 871 rel.

Mian Fahim Akbar for Appellants (in Jail Criminal Appeal No.20-I and Criminal Appeal No.21-I of 2019).

Muhammad Saeed Khan for the Complainant (in Jail Criminal Appeal No.20-I, Criminal Appeal No.21-I and Criminal Revision No. 2-P of 2019).

Wilayat Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

YLR 2020 FEDERAL SHARIAT COURT 1733 #

2020 Y L R 1733

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Syed Muhammad Farooq Shah, JJ

ZAHID HUSSAIN---Appellant

Versus

AJEEB and others---Respondents

Criminal Appeal No.11-K of 2010, decided on 1st March, 2018.

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

----S. 17---Penal Code (XLV of 1860), Ss. 341, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 22---Haraabah, wrongful restraint, rioting, armed with deadly weapon, common object---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delayed FIR---Identification parade---Failure to give description of accused in crime-report--- Non-production of Magistrate--- Effect--- Prosecution case against accused persons was that they intercepted the complainant and others, snatched the car, cash and copy of identity card---Matter was reported to the police after more than one month---Explanation offered by the prosecution did not appeal to a man of ordinary prudence--- Direct statements of prosecution witnesses though were in line with the case of prosecution set up in the FIR but were not sufficient to prove the charge against the accused in view of non-availability of corroborative evidence---Two of the accused persons were not named in the FIR---Description of said accused persons was also not given in the crime report---Such omission on the part of complainant went to the root of the case, sufficient to brush aside the evidence of identification parade---Non-production of supervising Magistrate was another important fact putting serious cloud upon the evidentiary value of identification parade---Prosecution had failed to prove its case against the accused persons beyond shadow of doubt as concluded by the Trial Court---Appeal against acquittal was dismissed, in circumstances.

Maula Dad alias and others v. Emperor AIR 1925 Lahore 426; State/ Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo 1993 SCMR 585; Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Mansoor Ahmad alias Shahzad alias Sheeri and others v. The State 2012 YLR 2481 ref.

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

----S. 154---Information in cognizable cases--- Delayed FIR--- Effect---Prosecution case against accused persons was that they intercepted the complainant and others, snatched the car, cash and copy of identity card---Matter was reported to the police after more than one month---Complainant attempted to justify the delay by adding that on the following day of occurrence, he along with his father and another approached the nominated accused, who promised to return the vehicle in few days---Omission on his part prompted the complainant to approach the accused second and third time and on his ultimate refusal, FIR was lodged---Reason assigned by the complainant could not be believed and acted upon in view of non-disclosure of time and date of stated meetings with the accused---Omission was fatal because in case of disclosure of dates, question of delay could have been decided in more appropriate mode---If someone had committed dacoity, he would not return the looted articles while undoing his act, committed earlier---Federal Shariat Court observed that story was coined by the complainant but it remained an unsuccessful attempt---Appeal against conviction was dismissed, in circumstances.

----S. 417---Appeal against acquittal---Scope---Points ordinarily to be considered by the appellate court while re-appraising evidence for interference in the judgment of acquittal, detailed.

Following are such points:

(i) Slowness of the appellate court to make interference in the verdict of acquittal.

(ii) Attachment of due weight and consideration to the findings of the lower court particularly when it has the occasion not only to record the evidence but also observe the demeanor of the witnesses.

(iii) Decision of acquittal affirms the initial plea regarding innocence of the accused unless proved otherwise.

(iv) Right of accused to the benefit of doubt.

(v) Admission of evidence illegally.

(vi) Ignoring the material evidence.

(vii) Manifest wrong, perversity or uncalled for conclusion from facts proved on record.

(viii) Parameter for re-appraisal of evidence has to be applied strictly being different as compared to the yardstick for interference in the judgment of conviction.

(ix) Possibility of formulation of another opinion does not furnish any ground to set aside the judgment of acquittal if based on evidence.

Sheo Swarup and others v. King Emperor AIR 1934 PC 227(2); Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Captain Abdul Rahim v. Naeem Sagar and others 2009 SCMR 288; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another 2013 SCMR 565 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

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

----S. 154---Information in cognizable cases--- Delayed FIR--- Failure of complainant to justify delay---Effect---Possibility cannot be ruled out qua false implication of the accused where there is a delay in lodging FIR with inability of the complainant to justify it.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 and Mushtaq Hussain and another v. The State 2011 SCMR 45 ref.

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

----S. 154---Information in cognizable cases--- Prompt FIR--- Effect---Spontaneous FIR is the guarantee of truth to a greater extent.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 and Mushtaq Hussain and another v. The State 2011 SCMR 45 ref.

Munir Ahmed Gilal for Appellant.

Amanullah Lashari for Respondent No. 1.

Nazir Ahmed Shar for the Respondents Nos. 2, 3 and 4.

Zahoor Shah, Deputy Prosecutor General, Sindh.

YLR 2020 FEDERAL SHARIAT COURT 1769 #

2020 Y L R 1769

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD SALEEM and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 5/I of 2019, decided on 16th May, 2019.

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

----Ss.395, 397 & 412---Qanun-e-Shahadat (10 of 1984), Arts. 22 & 133---Criminal Procedure Code (V of 1898), S.103--- Robbery and recovery of stolen property---Appreciation of evidence---Joint identification parade---Joint recovery--- Cross-examination, non-reliance of---Benefit of doubt---Five accused persons robbed bank and fled away---Accused persons were arrested during investigation and certain stolen articles were recovered from their joint possession---Joint recovery at the pointation of accused persons could not be used against them---Three accused persons were put to joint identification and the same had lost evidentiary value of identification test---Trial Court did not peruse and consider cross-examination of eye-witnesses and passed judgment against accused persons---Cross-examination was the great legal engine invented for discovery of truth---Cross-examination of eye-witnesses was not an empty formality but was a valuable right and the best method to ascertain the truth---Right of cross-examination from time immemorial was held to be, particularly in criminal cases, a valuable right to the accused---Cross-examination was a weapon which accused person or an advocate on his behalf could wield for the purpose of testing veracity of the statement made by a witness---Concept of benefit of doubt to accused person was deep rooted and prosecution was duty bound to prove its case beyond the shadow of reasonable doubt---If any single or slightest doubt was created, benefit of the same was to go to accused and the same was sufficient to disbelieve prosecution story---Benefit of doubt was to go to accused regardless of the fact whether he had taken any defence plea or not---Federal Shariat Court set aside conviction and sentence awarded to accused persons and acquitted them of the charge---Appeal was allowed in circumstances.

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

----S. 103--- Recovery proceedings---Witness of locality---Effect---In order to ensure proper investigation and clear proof, preference was to be given to witnesses of locality, particularly the witnesses who are respectable---Where witnesses are not of the locality, Court could cautiously examine their statement.

Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasrullah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shafi and others v. State PLD 1967 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Taja and another v. State PLD 1983 SC (AJ&K) 211; Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and The State v. Abba Ali Shah PLD 1988 Kar. 409 rel.

----Benefit of doubt---Principle---If a single circumstance creates reasonable doubt in a prudent mind about guilt of accused, he is entitled to such benefit not as a matter of grace but as a matter of right.

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

Wajih-ur-Rehman Khan for Appellants

Ali Asghar Pasha Khan for the Complainant.

Malik Akhtar Hussain Awan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

YLR 2020 FEDERAL SHARIAT COURT 1926 #

2020 Y L R 1926

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

KAMIL JAN---Appellant

Versus

SHAH ZAD alias MANO and 2 others---Respondents

Criminal Appeal No. 3/I of 2013, decided on 9th April, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Even if there is a single circumstance which creates a reasonable doubt in a prudent mind about guilt of accused, then the accused is entitled to such benefit not as a matter of grace but as a matter of right---Conviction cannot be based on high probabilities and suspicion cannot take place of proof.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----S. 154---First Information Report (FIR)---Evidentiary value---Inordinate delay---Effect---No legal sanctity is attached to the FIR registered after inordinate delay, merely on disclosure of some source of information.

----S.17(3)---Penal Code (XLV of 1860), S. 412---Criminal Procedure Code (V of 1898), S. 417---Harabah and receiving stolen property--- Appreciation of evidence---Appeal against acquittal---Complainant was aggrieved of judgment passed by Trial Court acquitting accused of the charge---Validity---Appellate Court was not to disturb acquittal, if main grounds on which Trial Court had based its acquittal order were reasonable and plausible and could not be dislodged or demolished---Federal Shariat Court declined to interfere in order of acquittal as there was no improbability or infirmity in the judgment of acquittal passed by Trial Court which was based on sound and cogent reasons---Appeal was dismissed, in circumstances.

Malik Akhtar Hussain, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

Gul Daraz Khan for Respondent.

YLR 2020 FEDERAL SHARIAT COURT 2087 #

2020 Y L R 2087

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J. and Syed Muhammad Farooq Shah, J

MUHAMMAD RAMZAN---Petitioner

Versus

SHAKEELA BIBI and 3 others---Respondents

Crl. P.S.L.A. No.5-I of 2019, decided on 13th February, 2020.

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

----Ss.3, 6 & 7---Criminal Procedure Code (V of 1898), S. 403---Constitution of Pakistan, Art. 13---Qazf---Appeal against acquittal---Double jeopardy, principle of---Applicability---Complainant was ex-husband of accused lady against whom he had filed complaint alleging offence of Qazf---Trial Court dismissed the complaint and acquitted accused of the charge---Validity---To prove offence of Qazf, prosecution was to indicate that such imputation was made with intention to harm person or his reputation by imputing such accusation of Zina---Complainant failed to bring on record any intention to harm his person or reputation or circumstances indicating such intention by imputing false accusation of Zina, during trial for the offence of Zina by filing a civil suit---In absence of such evidence indicating such intention to harm the person and reputation of complainant, the offence of Qazf as mentioned in S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, was not made out---Double jeopardy as enunciated under Art.13 of the Constitution read with S.403, Cr.P.C. which had provided protection against double prosecution or trial of same offence which was involved in the offence with which accused was previously charged had attracted---Accused was acquitted by Court of competent jurisdiction and such finding attained finality---Trial of accused on the same charge again by Court was not permissible---Federal Shariat Court declined to interfere in the judgment passed by Trial Court---Petition for special leave to appeal was dismissed in circumstances.

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

----Ss. 410 & 417---Appeal against judgment for 'conviction' and 'acquittal'---Distinction---Scope to make interference in judgment of acquittal has parameter and yardstick quite different than the judgment of conviction---Judgment of acquittal cannot be disturbed even though second opinion can be reasonably possible---Appeal against acquittal is considerably limited as accused earns double presumption of innocence with his acquittal.

Ghulam Hussain v. The State PLD 1994 SC 31; Qurban Hussain alias Ashiq v. State 2010 SCMR 1592; Intizar Hussain v. Hamza Ameer 2017 SCMR 633; Azhar Ali v. State PLD 2010 SC 632 and Ghulam Sikandar v Mamaraz Khan PLD 1985 SC 11 rel.

Raja Yasir Shakeel Janjua for Petitioner.

Muhammad Atif Khokhar, State Counsel on behalf of Advocate-General (ICT), Islamabad for the State.

YLR 2020 FEDERAL SHARIAT COURT 2639 #

2020 Y L R 2639

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

The STATE through Advocate-General, Khyber Pakhtunkhwa---Appellant

Versus

MUHAMMAD SHABRAN alias SHADA and another---Respondents

Criminal Appeal No. 10-P of 2019, decided on 27th November, 2019.

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

----Art. 4---Criminal Procedure Code (V of 1898), Ss. 417 & 103---Owning or possessing intoxicant---Search to be made in presence of witnesses---Appreciation of evidence---Appeal against acquittal---Delay in sending recovered narcotics to Forensic Laboratory--- Safe custody--- Non-examination of sample-bearer---Scope---Accused persons were alleged to have been found in possession of 72 bottles of liquor and one can of liquor weighing 20 liters---Liquor was allegedly recovered from a shop but neither owner of the shop nor inhabitants of the locality were associated to witness the recovery---Samples taken from the recovered bottles and can were sent to the Forensic Laboratory with a delay of 7 days---Nothing was available on record to show that the recovered property was kept in safe custody till it was sent to the Forensic Laboratory---Unexplained delay in sending the intoxicant to the Forensic Laboratory and its unsafe custody besides transmission of samples to the office of Chemical Examiner through un-examined witness was fatal to the prosecution case---Appeal against acquittal was dismissed in limine.

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

----Art. 4---Owning or possessing intoxicant--- Delay in sending recovered narcotic to Forensic Laboratory---Safe custody---Non-examination of sample-bearer---Scope---Unexplained delay in sending the narcotic to the Forensic Laboratory and its unsafe custody besides transmission of samples to the office of Chemical Examiner through un-examined witness was fatal to the prosecution case.

----S. 103---Search to be made in presence of witnesses---Scope---Two mashirs are always cited for recovery made from places and reliance is to be placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality---Residence of the mashirs becomes relevant depending on the facts of the case--- Preference was to be given to the witnesses of the locality, particularly witnesses who are respectable---Where witnesses are not of the locality, the court was to cautiously examine their statements.

Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasrullah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shafi and others v. State PLD 1967 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Jaja and another v. State PLD 1983 SC (AJ&K) 211; Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and The State v. Abba Ali Shah PLD 1988 Kar. 409 ref.

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

----S. 417---Appeal against acquittal---Interference--- Scope--- Scope of interference in appeal against acquittal is narrowest and limited because after acquittal, the accused shall be presumed to be innocent---Appeal against acquittal is quite different from an appeal preferred against the findings of conviction and sentence--- Appellate jurisdiction under S.417, Cr.P.C. can be exercised by the court if gross injustice is done in the administration of justice, more particularly, wherein findings given by the Trial Court are perverse, illegal and based on mis-reading of evidence, leading to miscarriage of justice or where reasons advanced by the trial court are wholly artificial---Accused earns double presumption of innocence with acquittal; first, initially that till found guilty he has to be considered innocent; and second, that his acquittal by the Trial Court further confirmed the presumption of innocence.

Malik Akhtar Hussain Awan, Assistant Advocate-General, Khyber Pakhtunkhwa for the State/Appellant.

Gilgit Baltistan Chief Court

YLR 2020 Gilgit Baltistan Chief Court 85 #

2020 Y L R 85

[Gilgit-Baltistan Chief Court]

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

ASHFAQ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 52 and Criminal Revision No.28 of 2017, decided on 9th May, 2019.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss. 174 & 161---Qatl-i-amd---Police to inquire and report on suicide---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Last seen evidence---Delayed FIR---Withholding best evidence---Independent corroboration, non-availability of--- Effect--- Postmortem examination on the place of occurrence---Effect---Delay in recording statements under S. 161, Cr.P.C.---Effect---Police received information that deceased had fired on himself with firearm and was shifted to hospital, where he succumbed to injuries---Police, during inquiry under S. 174, Cr.P.C. found that the accused had committed the murder and motive behind the occurrence was stated to be the suspicion of accused that deceased had illicit liaison with his sister---First Information Report was lodged with 8 days of delay---None had witnessed the occurrence---Neighbours, who on hearing the fireshot had arrived at the place of occurrence, were not cited as prosecution witnesses---Two eye-witnesses had seen the accused while escaping the house of deceased---Cousin of deceased stated that accused took deceased away from his hotel and after about 15 minutes he heard about the occurrence---Wife of deceased was present in the house but she had not seen the accused firing upon deceased---Last seen evidence of witnesses was not corroborated by any independent and impartial witness---Weapon of offence was not recovered on the pointation of accused, which was admittedly owned by the deceased---Postmortem of the dead body was conducted in the house of deceased, which was not permissible---Police had recorded the statements of witnesses under S. 161, Cr.P.C. after delay of 6 to 8 days of the occurrence, despite the fact that four witnesses were close relatives of deceased---Delay itself robbed the statements of credibility---Appeal was accepted, conviction and sentence recorded against the accused was set aside, in circumstances. (b) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is a weak type of evidence and cannot be considered enough to sustain conviction on murder charge, where the witness has some connection with deceased, unless the same is corroborated by independent and confidence inspiring evidence.

----Postmortem examination---Scope---Postmortem examination in the house of deceased is not permissible under law.

(d) Criminal trial---

----Circumstantial evidence---Scope---Cases based on circumstantial evidence require that chain link should be interconnected in such a way that its one end touches the dead body while the other end goes around the neck of accused and if any link is missing then its benefit should be given to the accused.

PLD 1966 SC 664; 1999 SCMR 1034; 1992 SCMR 1047; 1996 SCMR 188; 2008 SCMR 1103; 2009 SCMR 407; 2009 SCMR 1107; 2011 SCMR 1127 and 2003 YLR 1364 ref.

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

----S. 161---Examination of witnesses by police---Delay in recording such statement---Effect---Credibility of a witness is looked with serious suspicion if his statement is recorded with delay, without offering any plausible explanation.

Raja Shakeel Ahmed for the Appellant/convict.

Dy. Advocate General for the State.

Manzoor Ahmed for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 226 #

2020 Y L R 226

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 6 others---Appellants

Versus

SAJIDULLAH and 4 others---Respondents

Civil Revision No.28 of 2018, decided on 6th March, 2019.

Civil Procedure Code (V of 1908)--

----S. 82---Execution of decree---Attachment of official vehicles---Estoppel---Scope---Respondents/decree-holders had filed execution petition; notice was issued to the appellants; departmental representative of the judgment-debtors, District Attorney and Legal Advisor had appeared before the executing court and had sought 18 adjournments but had failed to satisfy the decree---Executing court ordered for attachment of official vehicles of the appellants---Contention of appellants was that the executing court had not reported the case for orders of the Provincial Government as required under S. 82, C.P.C.--- Validity--- Neither District Attorney nor Legal Advisor of the department (appellants) had requested the executing court to report the matter for the order of the Provincial Government---Judgment-debtors had paid some decretal amount to the decree-holders without raising any such plea hence, they were estopped by their conduct to raise the objection at appellate stage---Chief Court held that S. 82, C.P.C. was no bar to the executing court---Appellants had failed to point out any material irregularity and illegality in the impugned order---Petition was dismissed.

2000 CLC 595 ref.

Additional Advocate General for Appellants.

Abdul Hameed for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 269 #

2020 Y L R 269

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHEHBAZ ALAM and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 115 of 2019, decided on 9th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 364 & 34---Kidnapping or abducting in order to murder, common intention---Bail, refusal of---Petitioners (two in number) contended that neither they were nominated in the FIR nor there was any recovery to connect them with the allegation of abducting the complainant---Petitioners were not nominated in the FIR, however, Identification parade was conducted later on, in which the complainant identified the petitioners---Petitioners deceitfully booked the taxi of the petitioners/complainant--- No apparent reason existed, which motivated the petitioner/complainant to involve the petitioner in crime---Non-recovery of pistol would not be of any help for the petitioners, while deciding bail application in a case of present nature---Prima-facie case existed against the petitioners---Bail was refused to the petitioners, in circumstances.

Muhammad Kumail for Petitioners.

Dy. Advocate General for the State.

Raja Zia-ur-Rehman for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 297 #

2020 Y L R 297

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD RAZI alias MUHAMMAD KHALIL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 81 of 2019, decided on 30th April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), S. 10(7)(a)--- Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Juvenile offender---Petitioner contended that he, being a juvenile, was entitled for concession of post-arrest bail under the provision of Juvenile Justice System Ordinance, 2000---Petitioner was, admittedly, a juvenile as School Leaving Certificate, issued by concerned quarter, showed his age as less than 16 years at the time of occurrence---Petitioner was facing trial before the Juvenile Court and was behind the bars for last more than one year and nine months and the prosecution had failed to conclude the trial of the petitioner, hence the petitioner/juvenile accused was entitled for concession of bail under the provision of S. 10(7) of Juvenile Justice System Ordinance, 2000---Case of the petitioner fell within the ambit of S. 10(7)(a) of Juvenile Justice System Ordinance, 2000---Petitioner was admitted to bail, in circumstances.

Najibullah Khan for Petitioner.

Dy. Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 340 #

2020 Y L R 340

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

Syed ALAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 40 of 2017, decided on 6th May, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution case was that accused had murdered nephew of complainant with .30 bore pistol---Ocular account was furnished by two eye-witnesses---Names of both the eye-witnesses were mentioned in the promptly lodged FIR---Perusal of their cross-examination showed that they were subjected to a lengthy cross-examination and they stood firm throughout and their statements could not be shattered by the defence except some minor contradictions---Eye-witnesses supported version of complainant in pith and substance---Presence of eye-witnesses was established at the place of occurrence---Defence had not suggested any ill-will or motive either on the part of complainant or said two eye-witnesses---Occurrence took place in a bazaar and the prosecution witnesses being present there identified the assailant who was none else but the appellant alone---Name of the accused and the names of eye-witnesses were also mentioned in site-plan---Site inspection report also carried the name of the accused only who committed the murder of deceased---No infirmity had been pointed out by the defence nor surfaced, while scanning prosecution evidence---Medical evidence, the reports of Forensic Expert and Serologist were positive and provided sufficient corroboration to maintain the conviction awarded by the Trial Court---Prosecution had proved the guilt of the accused up to the hilt and the accused had been properly awarded death sentence, which was maintained, however, the Trial Court had not awarded any fine under S. 544-A, Cr.P.C., which was mandatory in nature---High Court directed that a sum of Rs. 1,000,000/- (Rupees ten lac) would be paid by the accused to the legal heirs of deceased.

2002 SCMR 1986; PLD 2003 Lah. 270; 2008 PCr.LJ 318; 2010 PCr.LJ 547; 2011 PCr.LJ 328; 2010 MLD 1521 and 2010 MLD 1376 ref.

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

----S. 544-A---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Award of compensation---Payment of compensation by the accused to the legal heirs of deceased was mandatory---Court, when convicting a person, unless the reasons to be recorded in writing, it otherwise direct order the person convicted to pay compensation as the court may determine having regard to the circumstances of the case.

Amjad Hussain for Appellant.

Deputy Advocate General for the State.

Manzoor Ahmad for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 448 #

2020 Y L R 448

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

FIRDOUS ALI---Petitioner

Versus

ABBAS ALI and 5 others---Respondents

Civil Revision No. 71 of 2018, decided on 3rd May, 2019.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1(2)--- Suit for declaration---Withdrawal of---Scope---Plaintiffs moved application contending that they had filed petition before Collector Land Acquisition for compensation for their land and they be permitted to withdraw the suit with permission to file fresh one if so required after disposal of said petition---Trial Court dismissed the petition for withdrawal of suit but the same was accepted by the Appellate Court---Validity---Plaintiffs had raised/agitated sufficient ground in their application that petition with regard to subject matter of suit was pending adjudication before Collector Land Acquisition---Court could not compel the plaintiffs not to withdraw their suit---No error of law had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed, in circumstances.

Johar Ali for Petitioner.

Nazir Ahmed, Akhter Ali and Ghulam Nabi for Respondents Nos. 1 and 2.

A.A.G. and D.A.G (Civil) for Respondents Nos. 3 to 5.

YLR 2020 Gilgit Baltistan Chief Court 545 #

2020 Y L R 545

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHABAT KHAN---Appellant

Versus

ANWARULLAH alias LAPO---Respondent

Criminal Appeal No. 11 of 2019, decided on 10th June, 2019.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Dishonest improvement--- Scope--- Appellant/ complainant assailed order of Trial Court whereby it had acquitted the accused---Complainant relied on his deposition before Trial Court and contended that the accused was charged for directing the main accused to fire upon the deceased---Appellant was duly confronted with his statement recorded under S. 161, Cr.P.C., where it was not so recorded--- Complainant had consciously and deliberately improved his version, which was rightly ignored by the Trial Court---Appeal filed by the complainant was dismissed in limine.

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

----Ss. 417 & 410---Appeal against acquittal/conviction--- Appeal against acquittal is widely different from the appeal against conviction---Very strong and convincing grounds are required to upset an acquittal, which has been recorded by the Trial Court, after full fledged trial as the presumption of initial innocence is multiplied after earning acquittal.

Zahoor Ahmed for Petitioner.

Muhammad Saleem for Respondent.

YLR 2020 Gilgit Baltistan Chief Court 630 #

2020 Y L R 630

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Syed MAZHAR HUSSAIN KAZMI---Petitioner

Versus

SECRETARY EDUCATION GILGIT-BALTISTAN, GILGIT and 5 others---Respondents

Civil Revision No. 96 of 2019, decided on 16th August, 2019.

(a) Land Acquisition Act (I of 1894)---

----Ss. 52 & 4---Specific Relief Act (I of 1877), Ss. 42, 54 & 56(d)---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and perpetual injunction---Interference with public duties of Federal or Provincial Government---Acquisition of land for public purpose---Interim injunction, refusal of---Plaintiff filed suit for declaration and perpetual injunction claiming therein that he was the owner in possession of the disputed land; that the respondents were bent upon to construct Government School and had started construction work on the land without passing award and giving compensation amount---Trial Court and appellate court concurrently dismissed the application under O. XXXIX, Rr. 1 & 2, C.P.C. for grant of temporary injunction---Validity---Land of petitioner was required for up-gradation of Girls High School to Higher Secondary School, as land of the petitioner was situated adjacent to the school---Land of any person, under the provisions of Land Acquisition Act, 1894, could be acquired by Government for utilization of public purpose and court could not restrain the Government from acquiring the land for public purpose---Injunction could not be granted to interfere with the public duties of any department of the Federal or Provincial Government under S. 56(d) of the Specific Relief Act, 1877---Petitioner had failed to make out a prima facie case in his favour and balance of convenience was also not in his favour---Petitioner would not suffer irreparable loss as he would be compensated by the Government---Notification under S. 4 of the Land Acquisition Act, 1894 had already been issued and a copy of said notification was available on the record---Restraining the action of Government in the acquisition of the land was not permissible in view of S. 52 of Land Acquisition Act, 1894---Government had not yet prepared compensation papers and Collector had yet not passed the award of proposed acquired land---Collector Land Acquisition was directed by the Chief Court to pass the award of land of the petitioner and pay compensation amount within specified period---Revision petition was dismissed.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Pre-requisites---Scope---Petitioner, in order to obtain an interim injunction, is required to demonstrate that a good prima facie case is made out in his favour; that the balance of convenience is in his favour and that he would suffer irreparable loss if injunction is not granted---Injunction could not be granted unless all the said three conditions for grant of injunction co-exist.

Yawar Abbas for Petitioner.

Additional Advocate General and Dy. A.G. for Respondents assisted by Muzaffar Ali, ALA, of Education Department for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 887 #

2020 Y L R 887

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 3 others---Petitioners

Versus

SULTAN AYAZ---Respondent

Civil Revision No. 24 of 2009, decided on 27th August, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Money suit---Defendant failed to submit written statement and his defence was struck off---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Defendant had failed to submit his written statement and his right was struck off---Defendant had not challenged the said order of Trial Court---Defendant was estopped by his conduct and admission to challenge the impugned judgment passed by the Appellate Court---Plaintiff had proved his claim by producing independent and impartial witnesses in the Trial Court---Defendant had failed to rebut evidence of plaintiff---No error of law had been pointed out in the impugned judgment passed by the Court below---Revision was dismissed, in circumstances.

Additional Advocate General along with Dy. Advocate General and LA PWD for Petitioners.

Raja Shakeel Ahmed for Respondent.

YLR 2020 Gilgit Baltistan Chief Court 937 #

2020 Y L R 937

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD SHAH---Petitioner

Versus

Mst. TAHIRA and another---Respondents

Civil Revision No. 80 of 2019, decided on 5th July, 2019.

Civil Procedure Code (V of 1908)--

----S.47, O.VII, R.2 & O.XXI, R.23-A---Money suit---Execution petition---Objection---Executing Court dismissed objection petition---Appellate Court directed the judgment debtor either to deposit decretal amount in the Court or furnish security till next date of hearing---Validity---Judgment debtor in case of a decree for payment of money was bound to deposit the decretal amount in the Court or furnish security for its payment otherwise objection should not be considered---Judgment debtor had failed to deposit decretal amount in the Executing Court---Appellate Court had rightly directed the judgment debtor to deposit decretal amount and no exception could be taken to it---Revision was dismissed, in circumstances.

Sadiq Hussain for Petitioner.

YLR 2020 Gilgit Baltistan Chief Court 998 #

2020 Y L R 998

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MS SALTANAT KHAN AND COMPANY---Petitioner

Versus

EXECUTIVE/SUPERINTENDENT ENGINEER EDUCATION DEPARTMENT, GILGIT BALTISTAN and 2 others---Respondents

Civil Revision No. 21 of 2019, decided on 26th March, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration--- Temporary injunction---"Irreparable loss"---Scope---Court while granting temporary injunction had to see whether plaintiff had a prima facie case, balance of convenience and "irreparable loss"---Only tentative assessment had to be made while granting temporary injunction---Plaintiff, in the present case, had filed suit for declaration only and had not sought permanent or temporary injunction as consequential relief---Court, in circumstances, could not grant interim injunction in favour of plaintiff---Loss allegedly to be suffered by the plaintiff appeared to be measurable in terms of money which did not fall within the ambit of "irreparable loss" and balance of convenience did not lie in favour of plaintiff in the present case---Plaintiff had failed to make out a good prima facie case in his favour---Plaintiff was not entitled for grant of discretionary relief of temporary injunction, in circumstances---Revision was dismissed accordingly.

2002 SCMR 1269 rel.

Raja Shakeel Ahmed for Petitioner.

A.A.G. along with Dy. A.G. (Civil) assisted by Nisar Ahmad and Muzaffar Ali, L.A. for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 1275 #

2020 Y L R 1275

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

PROVINCIAL GOVERNMENT through Chief Secretary and 5 others---Petitioners

Versus

MALIKAN BOTOKHAIL through Representative and 127 others---Respondents

Civil Revision No. 50 of 2018, decided on 06th August, 2019.

Land Acquisition Act (I of 1894)---

----Ss. 34 & 18---Reference to Court---Compensation--- Compound interest, payment of---Scope---Acquiring agency assailed the order of the trial court whereby it was directed to deposit compound interest along with compensation amount in the court---Validity---Section 34 of Land Acquisition Act, 1894 specifically provided that the person whose land was acquired by the government for utilization for "public purpose" was entitled to compound interest from the date of taking possession till payment of compensation---Possession of the land of respondents had also not been taken by the acquiring agency, therefore, respondents were not entitled to receive compound interest---Respondents had also not claimed compound interest in their reference petition---Referee Judge had committed material irregularity and illegality while directing the acquiring agency to deposit compound interest along with compensation---Revision petition was allowed, in circumstances.

Sarfaraz Ahmed, Dy. A.G. for Petitioners.

Raja Shakeel Ahmed for Petitioner No.2.

None for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 1413 #

2020 Y L R 1413

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

FIDA HUSSAIN---Petitioner

Versus

SANA ULLAH ABBASI and 7 others---Respondents

C.O.C. No. 6 of 2019, decided on 6th August, 2019.

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

----O.XXXIX, R.2(3)--Interim injunction--Violation--- Scope---Petitioner alleged that the respondents by demolishing the steel gate installed by petitioner violated the order of court whereby petitioner was allowed to complete the construction of boundary wall on the disputed land---Validity---Court had not specifically restrained the respondents from interfering in the suit land---Contempt petition was dismissed.

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

----O.XXXIX, R.2(3)--Interim injunction--Violation---Service of injunctive order---Scope---Person who disobeys the injunction can be proceeded against for contempt of court and action can also be taken against him under O. XXXIX, R. 2(3), C.P.C.---Injunction becomes operative the moment it is served upon respondent and he is made aware of the order.

Sharief Ahmed and Waqas Ahmed for Petitioners.

Additional Advocate General and Dy. A.G. (Civil) assisted by Abdullah, D.S.P. (Legal) for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 1433 #

2020 Y L R 1433

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

INSPECTOR GENERAL OF POLICE, GILGIT-BALTISTAN and 3 others---Appellants

Versus

IJLAL HUSSAIN ALA NUMBERDAR---Respondent

C.F.A. No. 47 of 2018, decided on 23rd September, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Money Suit---Plaintiff had proved his claim by adducing oral as well as documentary evidence---Defendants/tenants had not paid some electricity bills of the demised premises---Trial Court had rightly decreed the suit of plaintiff partially after proper appreciation and evaluation of evidence of the parties---Defendants had failed to point out any illegality, infirmity or mis-reading or non-reading of evidence in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed in circumstances.

Mir Mohammad, Additional Advocate General and Sarfraz Ahmed, Deputy Advocate General for Appellants.

Zafar Iqbal for Respondent.

YLR 2020 Gilgit Baltistan Chief Court 1474 #

2020 Y L R 1474

[Gilgit-Baltistan Chief Court]

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

FARHAD ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 260 of 2019 in Criminal Appeal No. 31 of 2019, decided on 21st November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence pending appeal---Release of accused on bail---Scope---Accused sought suspension of sentence passed under S.302(c), P.P.C. for imprisonment of five years and was also sentenced to imprisonment for six months under Ss.459 & 506(b), P.P.C.---Accused had already undergone the sentences awarded to him under Ss.506(b) & 459, P.P.C.; he had also undergone the major portion of the sentence awarded to him under S.302(c), P.P.C. and if the remissions under Jail Manual were counted then he would almost have undergone the entire sentences---Hearing of the appeal might take some time, therefore, convict was entitled to be released on bail by suspending his sentence---Petition under S. 426, Cr.P.C. was allowed.

Raja Shakeel Ahmed for Petitioner.

Deputy Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 1493 #

2020 Y L R 1493

[Gilgit-Baltistan Chief Court]

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

ALTAF HUSSAIN---Petitioner

Versus

STATE through National Accountability Bureau and others---Respondents

Writ Petition No.158 of 2017, decided on 21st November, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(i), (iv), (v), (vi) & 9(xii)---Gilgit Baltistan (Empowerment and Self-Governance) Order (V of 2018), Art.71---Corruption and corrupt practices---Bail, grant of---Rule of consistency---Scope---Accused along with Bank officials was alleged to have illegally and with mala fide intention managed to get cleared the goods from the Customs Authorities without paying customs duties and taxes---Co-accused of the accused who were implicated in the same reference were admitted to bail by the Chief Court---Rule of consistency applied to the case of accused and he was also entitled to the concession of post-arrest bail---Accused was admitted to post-arrest bail, in circumstances.

2008 SCMR 173 ref.

Amjad Hussain for Petitioner.

Amin Khan Special Prosecutor NAB for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 1545 #

2020 Y L R 1545

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SHAN ALI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 258 of 2019, decided on 25th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Compromise---Legal heirs of both the deceased had forgiven the accused in the name of Allah Almighty and had no objection if the accused was released on bail or acquitted of the charge under S.302, P.P.C.---Accused was about 16 years old at the time of commission of offence, as such he was juvenile and on this ground too he was also entitled for concession of bail---Parties having themselves voluntarily forgiven the crime and had entered into a settlement/ compromise outside the court which could be considered good ground for grant of bail to the accused in the interest of justice---Accused was admitted to post arrest bail, in circumstances.

Mohammad Saleem, Imtiaz Hussain, Mohammad Nafees and Jabir Ali for Petitioner.

Deputy Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 1648 #

2020 Y L R 1648

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J JAN MUHAMMAD and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 229 of 2019, decided on 27th September, 2019.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss. 324, 34, 109---Attempt to commit qatl-i-amd, common intention, abetment---Bail, refusal of---Accused persons were directly charged in the FIR with a specific role of causing injuries to the victim---Recovery of weapon of offence from both the accused had been effected in presence of marginal witnesses---Co-accused had already been refused bail by High Court---Trial of the case had commenced---Accused persons remained absconder for a long time and were arrested after hectic efforts by the local police---No case for bail was made out---Bail petition was dismissed, in circumstances.

Muzaffar ud Din for Petitioners.

Deputy Advocate General for the State.

Raja Zia-ur-Rahman for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 1730 #

2020 Y L R 1730

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Syed MURTAZA---Petitioner

Versus

ABDUL RAHIM and 5 others---Respondents

Civil Revision No. 6 of 2018, decided on 10th October, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 8---Suit for declaration, permanent injunction and possession---Contention of plaintiff was that he was owner of suit property but defendant had forcibly occupied the same---Suit was dismissed concurrently--- Validity---Plaintiff had failed to prove his claim by producing convincing and cogent evidence---Defendant was bona fide purchaser of suit property---Plaintiff was bound to prove his case and stand on his own legs and he could not be benefited by the weakness of defendant---Fact which had been admitted by the plaintiff was not required to be proved on behalf of defendant---Plaintiff had failed to point out any illegality or material irregularity or mis-reading or non-reading of evidence in the findings recorded by the Courts below---Revision was dismissed, in circumstances.

Khadim Hussain for Petitioner.

Muhammad Nazir for Respondent No.1.

None for remaining Respondents.

YLR 2020 Gilgit Baltistan Chief Court 1751 #

2020 Y L R 1751

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ABDUR REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 16 of 2019, decided on 3rd September, 2019.

Penal Code (XLV of 1860)---

----S. 489-C---Possession of forged or counterfeit currency-notes or Bank-notes---Appreciation of evidence---Benefit of doubt---Conscious knowledge of accused---Failure to solicit report from Currency Officer---Effect---Accused was convicted for having been found in possession of counterfeit currency notes---Prosecution had to prove that it was in the conscious knowledge of the accused that the notes were forged and the accused was intending to use them as genuine---No report from currency officer of the State Bank of Pakistan was sought which was necessary to substantiate the charge---Police officials were not competent to give an opinion that the notes recovered from the accused were forged---Prosecution had failed to prove the charge against accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

1988 PCr.LJ 1553; 1996 MLD 2049; 2000 PCr.LJ 1461; 2000 PCr.LJ 1919; 2011 PCr.LJ 172 and 2004 MLD 145 ref.

Islam-ud-Din for Petitioner.

Deputy Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 1959 #

2020 Y L R 1959

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

GHULAM HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 291 of 2019, decided on 31st January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376, 377-B & 493-A---Rape, unnatural offence, cohabitation caused by a man deceitfully inducing a belief of lawful marriage---Bail, refusal of---First Information Report was registered under S.376, P.P.C., however, on medical examination, the hymen of the victim was reported to be intact---Accordingly, police dropped the charge under S.376, P.P.C. and incorporated offences under Ss.493 & 377-B, P.P.C.---Victim had fully implicated the accused in her statement under S.161, Cr.P.C.---Inquiry Officer found that the accused had committed the alleged offence and recommended for taking legal action against him---Social Welfare Officer had also conducted an inquiry in the matter and found that the accused had committed the nefarious and immoral offence with his minor student---Accused was, prima facie, connected with alleged offence falling under prohibitory clause of S.497, Cr.P.C.---Accused had committed an offence of moral turpitude bringing bad name to noble profession of teaching---Petition being bereft of merits was dismissed, in circumstances.

Muhammad Saleem for Petitioner.

Deputy Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 2060 #

2020 Y L R 2060

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUSHARAF KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 33 of 2020, decided on 11th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Charas weighing 2600 grams was recovered from under the driver seat of car---First Information Report was registered/ lodged by Assistant Sub-Inspector of Police and under the provisions of S.21 of the Control of Narcotic Substances Act, 1997, he was not competent to register case against the accused under Ss. 6, 7 & 8 of the Act nor to search the accused---More than two months had elapsed but report of Chemical Examiner had not been received---Delay in receipt of report of Chemical Examiner had made the case of the accused as one of further inquiry---Nothing was available on record that the petitioner had remained involved in same nature of cases previously---All the prosecution witnesses were public officials, therefore, there was no likelihood of tampering with the prosecution witnesses---Accused could not be put behind the bars for an indefinite period---Bail could not be withheld as punishment---Accused was admitted to bail, in circumstances.

Burhan Wali for Petitioner.

Deputy Advocate General for Respondent/State.

YLR 2020 Gilgit Baltistan Chief Court 2121 #

2020 Y L R 2121

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

GHAZI AKBAR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 5 of 2020, decided on 4th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, refusal of---Second bail petition---No fresh grounds had been raised to influence the mind of the Court to consider the same in favour of accused---Grounds raised in the second petition were mentioned in the previous bail application considered and turned down by the Court---Petition being meritless was dismissed, in circumstances.

Athar Hussain for Petitioner.

Dy. A.G. for the State.

YLR 2020 Gilgit Baltistan Chief Court 2145 #

2020 Y L R 2145

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

KASHAN MEHDI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 319 of 2019, decided on 31st January, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.376, 364-A & 511---Rape, kidnapping or abducting a person under the age of fourteen, attempting to commit offences punishable with imprisonment for life or for a shorter time---Bail, refusal of---Second bail petition---Earlier, bail petition of the accused had been dismissed by Chief Court and no fresh ground was available to accused---Sole ground being agitated was that there was contradictions in the statements of two prosecution witnesses recorded by the Trial Court---Ground of contradictions in the statements of examined prosecution witnesses being deeper appreciation of evidence was not permissible at bail stage---Second petition being not maintainable was dismissed, in circumstances.

Arif Nazir for Petitioner.

Deputy Advocate General for Respondent/State.

Athar Hussain for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 2176 #

2020 Y L R 2176

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

HAIDAYAT ALI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 31 of 2020, decided on 10th February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Possession of explosive substances---Bail, grant of---Further inquiry---Accused was driver of the vehicle wherefrom explosive substances were recovered---Nothing on record to prove that the accused had any knowledge of the presence of contraband explosive in packed/bags which were delivered to him by a person---Such fact was to be determined at the trial as to who was owner and purchaser of that material---Matter required further inquiry as contemplated under sub-section (2) of S.497, Cr.P.C.---In the present case, the police had violated the mandatory provisions of S.103, Cr.P.C. as no inhabitant/witness of the locality was associated by the police at the time of search of vehicle despite the fact that independent/private witnesses/passengers were present in vehicle, which made the recovery doubtful and entitled the petitioner for concession of bail---Section 4 of Explosive Substances Act, 1908 provided that a matter, in order to fall within the mischief of the said section malice and intention were sine qua non---Presence of mens rea was a must in order to attract the provision of S.4 of the Explosive Substances Act, 1908---Offender was also to have knowledge about the explosive substance in his possession which was, prima facie, lacking in the present case---Accused was admitted to bail, in circumstances.

Amjad Hussain and Naveed Hussain for Petitioner.

Dy. Advocate General for the State.

YLR 2020 Gilgit Baltistan Chief Court 2266 #

2020 Y L R 2266

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

FIDA HUSSAIN---Petitioner

Versus

DIRECTOR NADRA, ISLAMABAD and 2 others---Respondents

Civil Revision No. 16 of 2018, decided on 2nd March, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Correction of date of birth---Contention of plaintiff was that his correct date of birth was 08-04-1997 instead of 08.04.1988---Defendants had contended that computerized National Identity Card was issued to the plaintiff on the basis of information provided on his behalf which did amount to admission---Suit was dismissed concurrently---Validity---Plaintiff had adduced unimpeachable and cogent documentary evidence to prove his claim---Defendants had not been able to rebut the documentary evidence adduced on behalf of plaintiff---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence---Courts below had committed material irregularity and illegality while passing the impugned judgments---Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed as prayed for---Revision was allowed, in circumstances.

Nafees for Petitioner.

M.S. Khawar, Legal Advisor NADRA for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 2353 #

2020 Y L R 2353

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Haji TAQI---Petitioner

Versus

AHALIYAN BRAQCHAN through Representatives and 2 others---Respondents

Civil Revision No. 23 of 2018, decided on 7th October, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. VI, R. 17---Suit for declaration and permanent injunction---Amendment of plaint---Plaint, rejection of---Scope---Plaintiff filed suit with the contention that demarcation report prepared by the Revenue Officer was against facts---During pendency of suit application for amendment of plaint was moved on behalf of plaintiff---Trial Court rejected plaint on the ground that same did not disclose cause of action---Validity---Contents of plaint did not disclose cause of action---Plaintiff had moved application for amendment of plaint but had not sought in the said application to disclose a cause of action by amendment in the plaint---Trial Court had rightly rejected plaint, in circumstances---Courts below had rightly appreciated the provisions of O. VII, R. 11, C.P.C.---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Revision was dismissed, in circumstances.

Zahid Abbas for Petitioner.

Basharat Ali for Respondent No.1.

Standing Advocate General for Respondents Nos.2 and 3.

YLR 2020 Gilgit Baltistan Chief Court 2407 #

2020 Y L R 2407

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

AWAM-E-JAPUKEY through Representatives and 6 others---Petitioners

Versus

Numberdar MUHAMMAD IRSHAD and others---Respondents

Civil Revision No. 35 of 2019, decided on 31st August, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 56(d)---Suit for declaration and permanent injunction---Temporary injunction, grant of---Ingredients---Plaintiffs had filed the present suit that if disputed water supply project was executed and drinking water was supplied to the defendants then their rights would be affected---Petition for grant of temporary injunction was dismissed concurrently--- Validity---Plaintiff in order to succeed in obtaining an order for injunction was required to demonstrate a good prima facie case and balance of convenience in his favour and that he would suffer an irreparable loss and injury if injunction was not granted---No order of injunction could be passed unless all the three ingredients did exist---Plaintiffs had failed to make out a prima facie arguable case and that balance of convenience was in their favour---Temporary injunction if not granted, plaintiffs would not suffer irreparable loss rather same would be caused to the defendants---Government had approved development scheme for provision of water to the defendants---Grant of temporary injunction to interfere with public duties of any department had been prohibited under S.56(d) of Specific Relief Act, 1877---No material irregularity or illegality while passing the impugned orders had been committed by the Courts below---Revision was dismissed, in circumstances.

1998 SCMR 376 rel.

Malik Kifayat-ur-Rehman for Petitioners.

Abdul Malik and Atta-ur-Rehman for Respondents.

YLR 2020 Gilgit Baltistan Chief Court 2448 #

2020 Y L R 2448

[Gilgit-Baltistan Chief Court]

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

Mst. GUL ADAM and another---Appellants

Versus

ASHRAF AMAN and 3 others---Respondents

C.F.A. No. 49 of 2018, decided on 19th September, 2019.

Gift---

----Essentials---Proof of---Plaintiffs filed suit for declaration that defendants had orally gifted suit property in their favour whereas defendants filed suit for possession that they were owners of suit land and plaintiffs had refused to vacate the same---Trial Court consolidated both the suits and dismissed suit of plaintiffs and decreed that of defendants---Validity---Plaintiffs being donees were bound to prove offer, acceptance and delivery of possession---Evidence of witness produced on behalf of plaintiff to prove alleged gift was not admissible as he was his real brother---Said witness had not stated even a single word with regard to acceptance of gift and delivery of possession of suit property---Even said witness was mentally retarded person and no declaration of gift had been made in presence of impartial witnesses---Alleged oral gift was defective and invalid, in circumstances---Plaintiffs had failed to produce convincing, reliable and cogent evidence to prove the alleged oral gift---Suit land had been allotted in favour of defendants by the Government---No illegality or irregularity had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

Raja Shakeel Ahmed for Appellants.

Ali Khan for Respondents Nos. 1 and 2.

Additional Advocate General for Respondents Nos. 3 and 4.

YLR 2020 Gilgit Baltistan Chief Court 2484 #

2020 Y L R 2484

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ABDULLAH KHAN---Petitioner

Versus

ABDULLAH---Respondent

Civil Revision No. 95 of 2018, decided on 26th March, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Money suit---Contention of plaintiff was that defendant had not paid amount according to agreement between the parties---Suit was decreed concurrently---Validity---Plaintiff in order to prove his case had himself appeared before the Trial Court and had supported the stance taken in the plaint---Plaintiff had also produced Notary Public and marginal witness of agreement who had supported his stance---Defendant had denied the claim of plaintiff in his written statement but he had admitted the claim of plaintiff in his statement recorded before the Trial Court---Plaintiff had proved his claim by adducing reliable and cogent evidence before the Trial Court---Courts below had properly examined the record and had rendered a just and right conclusion---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Abdul Karim for Petitioner.

Zafar Iqbal for Respondent.

YLR 2020 Gilgit Baltistan Chief Court 2607 #

2020 Y L R 2607

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SHOAIBULLAH BAIG---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 272 of 2019, decided on 5th November, 2019.

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

----S. 497---Penal Code (XLV of 1860), S. 377---Un-natural offence---Bail, refusal of---Scope---Accused was alleged to have committed sodomy with the son of complainant---Alleged victim had fully implicated the accused in the offence---Eye-witness had stated that he had seen the accused while taking the victim on his motorcycle immediately before the occurrence---Medico Legal Report regarding the absence of any sign of violence on the private part of victim was a matter requiring deeper scrutiny, which was not advisable for grant or refusal of bail and only tentative assessment could be made at the bail stage---Offence under S.377, P.P.C., fell within the ambit of prohibitory clause of S.497, Cr.P.C., thus the accused was not entitled for concession of bail---Petition for grant of bail was dismissed.

(b) Criminal trial---

----Each criminal case has to be decided on its own merits.

Burhan Wali and Arshad for Petitioner.

Dy. Advocate General for the State.

Imtiaz Hussain and Akhtar Ali for the Complainant.

YLR 2020 Gilgit Baltistan Chief Court 2654 #

2020 Y L R 2654

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ABDUR RAHIM through L.Rs.---Petitioner

Versus

MUHAMMAD SHAFA and another---Respondents

Civil Revision No. 90 of 2015, decided on 20th November, 2019.

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

----S. 42---Suit for declaration and possession---Contention of plaintiff was that he was owner of suit property which was temporarily handed over to the defendant for his residence---Suit was dismissed concurrently---Validity---Suit property had been delivered to the parties after its partition---Plaintiff had failed to prove his case by adducing cogent and unimpeachable evidence---Defendant had proved his version through reliable and unimpeachable evidence---Courts below had properly evaluated evidence of the parties and arrived at a right and just conclusion---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

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

----S. 115---Revisional power of Chief Court---Scope.

Revisional powers under section 115, C.P.C. of Chief Court are limited and can only be exercised when the petitioner/plaintiff succeed in establishing that the judgments of courts below suffer from legal infirmities hedged section 115, C.P.C. or revisional jurisdiction can only be invoked if some patent illegality is floating on the surface of record.

Munir Ahmad for Petitioners.

Johor Ali for Respondent No.1.

YLR 2020 Gilgit Baltistan Chief Court 2698 #

2020 Y L R 2698

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

IMTIAZ ALI and another---Petitioners

Versus

MOHAMMAD ISHAQ and 6 others---Respondents

Civil Revision No. 147 of 2019, decided on 29th October, 2019.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Suit for declaration and permanent injunction---Amendment in plaint---Scope---Plaintiff filed application to insert words "possession of suit land" in the heading of the plaint---Contention of plaintiff was that defendants had possessed suit land forcibly during pendency of suit---Petition for amendment in the plaint was dismissed by the Trial Court but Appellate Court accepted the same---Validity---Plaintiff initially filed a suit for declaration and permanent injunction as suit property was in his possession---Defendants during pendency of suit had possessed suit property forcibly---If proposed amendment was allowed then neither nature of suit nor cause of action would be changed---Appellate Court had rightly allowed the application of plaintiff for amendment in the plaint---No irregularity or illegality had been committed by the Appellate Court while passing the impugned order---Revision was dismissed, in circumstances.

Basharat Ali for Petitioners.

High Court Azad Kashmir

YLR 2020 HIGH COURT AZAD KASHMIR 139 #

2020 Y L R 139

[High Court (AJ&K)]

Before Raza Ali Khan, J

MUHAMMAD HANIF and 5 others---Appellants

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Civil Appeal No. 194 of 2018, decided on 10th June, 2019.

Civil Procedure Code (V of 1908)--

----S. 47---Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), Ss. 4 & 6---Suit for right of prior purchase (pre-emption)---Suit was decreed subject to payment of consideration amount along with expenses of sale---Decree-holder deposited sale price of suit land but expenses of sale were not paid---Execution petition--- Objection---Contention of judgment-debtors was that decree-holder had not deposited the expenses of sale---Objection petition was dismissed concurrently--- Validity---Judgment-debtors had not executed any sale deed rather executed a gift deed which was treated as sale deed---No question of expenses of sale did arise in circumstances---Executing Court could not go beyond the decree and question the correctness of the same---Objections raised by the judgment-debtors could not be considered by the Executing Court and same were beyond its jurisdiction---Second appeal was dismissed, in circumstances.

2013 SCMR 5; 2016 MLD 1779; 1994 SCMR 22; 1996 MLD 588; PLD 2003 AJK SC 14; 1992 SCR 154 and PLD 1975 SC 624 ref.

PLD 1982 SC 42 distinguished.

Mst. Hanifa Begum v. Hassan Shaikh and 3 others PLD 1983 SC (AJ&K) 163 and Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202 rel.

Chaudhary Jahandad Khan for Appellants.

YLR 2020 HIGH COURT AZAD KASHMIR 261 #

2020 Y L R 261

AJ&K High Court

[Shariat Appellate Bench]

Before Sardar Muhammad Ejaz Khan, J

JAHANGIR---Appellant

Versus

WAHEEDA KOUSAR and another---Respondents

Family Appeal No.18 of 2018, decided on 21st February, 2019.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R. 13---Suit for recovery of maintenance allowance and dower---Ex-parte decree, setting aside of---Limitation---Maxim: Audi alteram partem---Applicability---Petition for setting aside of ex-parte decree was dismissed being time barred---Validity---Respondent-plaintiff moved application for submission of fresh address of appellant-defendant but same was wrongly dismissed as withdrawn---Family Court was aware with regard to fresh address of appellant-defendant and he could have been summoned on the said address---Ex-parte proceedings were wrongly initiated against the petitioner, in circumstances---Petitioner-defendant was not summoned properly---Family Court had failed to follow the statutory provisions of law while initiating ex-parte proceedings against appellant---Nobody was to be condemned unheard before passing an adverse order---Trial Court had wrongly concluded that application for setting aside of ex-parte decree was time barred---Right of hearing was a recognized principle of law and such right could not be snatched on the will of any party just to protect its ill-gotten gains---Impugned order passed by the Court below was set aside and application for setting aside of ex-parte decree was allowed---Matter was remanded to the Family Court for decision afresh on merits---Appeal was allowed, in circumstances.

Syed Mehar Ali Shah v. Syeda Nudrat Bibi and another 2018 SCR 9 rel.

(b) Administration of justice---

----Nobody was to be condemned unheard before passing an adverse order.

Raja Asif Bashir for Appellant.

YLR 2020 HIGH COURT AZAD KASHMIR 538 #

2020 Y L R 538

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

PERVAIZ IQBAL---Appellant

Versus

WAPDA through CHAIRMAN and others---Respondents

Civil Appeals Nos. 123 and 124 of 2012, decided on 15th March, 2019.

(a) Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Compensation, award of---Enhancement of compensation---Building replacement cost valuation---Presumption of correctness---Market value determined by the contractor/ expert---Scope---Building replacement cost valuation had presumption of correctness but same was rebuttable by any other convincing and cogent evidence---Every piece of evidence should be appreciated in the light of peculiar circumstances of that case---If any estimate prepared by any person was not according to the market value then Court could ignore the same---Compensation of acquired land was to be awarded according to actual market value---Cases should be decided on the basis of evidence and not on the whims and wishes of Court---Compensation enhanced by the Court below was not according to the actual market value---Landowners were entitled to the cost at the rates which were prevalent in the market at the time of disbursement of compensation---Assessment of value of acquired houses made by the technical expert was accurate and according to the then prevailing rates of building materials---High Court observed that landowners were entitled for maximum value and Courts were to be liberal and generous while determining the compensation of acquired land---Provisions of Land Acquisition Act, 1894, while determining compensation of acquired land, should be construed liberally in favour of public and strictly against the Government---Landowners should be compensated as per rates of the period during which their houses were acquired and initial disbursement was made---In the present case, market value assessed by the contractor/expert was just, proper and appropriate and land owners were entitled to get the price of their houses accordingly---Impugned judgment and decree were modified accordingly---Appeal was allowed.

2017 SCR 893; 2017 SCR 915; 2013 SCR 1224 and 2017 SCR 524 ref.

PLD 2004 AJ&K 22 rel.

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

----Art. 133---Portion of the statement which was not challenged in cross-examination to be treated as admitted one.

Khan Mohammad Badar and 6 others v. Mst. Roshni and 43 others 2008 SCR 46 rel.

Arshad Mehmood Malik for Appellants.

YLR 2020 HIGH COURT AZAD KASHMIR 771 #

2020 Y L R 771

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, Sadaqat Hussain Raja and Ch. Muhammad Muneer, JJ

Justice (R) Syed MANZOOR HUSSAIN GILLANI, CHAIRMAN, MUZAFFARABAD and 29 others---Petitioners

Versus

GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through Establishment Secretary to Government of Pakistan, Islamabad and others---Respondents

Writ Petitions Nos. 1675 and 1744 of 2018, decided on 15th November, 2019.

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

----S. 44---Writ jurisdiction of the High Court, Azad Jammu and Kashmir (AJ&K)---Scope---When an authority performed any act in connection with the affairs of the state of Azad Jammu and Kashmir in violation of any law, or performed any act by departure from law, or any right guaranteed by the Constitution was infringed by that authority or person, the High Court (AJ&K) had jurisdiction to make its enforcement through its order, direction etc.

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

----Ss.4(4)(1), 44 & 52-C---Writ petition--- Maintainability---Right to water---Scope---Adverse environmental and social impact of Hydro Electric Projects constructed in territory of Azad Jammu and Kashmir----Distribution of net profit/royalty from hydro generation---Right to water was essential for securing adequate standard of living, particularly since it was one of the most fundamental conditions for survival and said right had been recognized in wide range of international documents---Any denial by the Government and its functionaries to the people or limiting equal access to adequate water or unlawfully diminishing or polluting water through waste from State owned facilities or through use and testing of weapons would be considered as infringement of the basic right to water and for the enforcement of such right, a writ could be validly issued---High Court (AJ&K) had the jurisdiction in the present matter as the projects under discussion were situated in the territory of Azad Jammu and Kashmir and the control of Government of Azad Jammu and Kashmir on its natural resources had been recognized in the Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petitions were held to be maintainable.

----S. 11---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Regln. 13---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Hydro Electric Projects constructed in territory of Azad Jammu and Kashmir (AJ&K)---Neelum Jhelum Hydro Electric Project ('NJHPC'), Kohala Hydro Electric Project ('KHPP'), and Mangla Dam Raising Project---Adverse environmental and social impact of said projects---Distribution of net hydel profit/royalty---Held, that on one hand the 'NJHPC' and 'KHPP' projects had some adverse impacts on the environment and could affect the biodiversity of the area to some extent, but on the other the projects also had benefits and could enhance the economy of Azad Jammu and Kashmir (AJ&K) for a sustainable development---In such a situation, balance was to be maintained between the benefit and loss to the people and the Government---Unless mitigating measures and conditions stipulated in the conditional environmental approvals of Environmental Protection Agency (AJ&K) for both the projects (NJHEP and KHPP) were complied with the operation of the projects constructed or under construction, would not be considered as legal and such violation could entail the legal consequences as enshrined in the Azad Jammu and Kashmir Environmental Protection Act, 2000 and other laws---All the three projects i.e. NJHEP, KHPP and Mangla Dam Raising Project were located in the territory of Azad Jammu and Kashmir, therefore, under the constitutional provisions and according to the understanding of the parties, the water usage charges and share from the net hydel profit of the projects, as given to the Government of Pakistan, also had to be provided to the Government of Azad Jammu and Kashmir (AJ&K) on the same rates---Government of Pakistan, Government of AJ&K as well as the project developers [Water and Power Development Authority (WAPDA) and Kohala Hydro Construction Limited (KHCL)] were under legal obligation to finalize and sign the draft tripartite agreements in relation to both the projects (NJHEP and KHPP) within reasonable period, so that no room may be left for complaints---Writ petitions were disposed of with certain directions by the High Court.

2011 SCMR 1743 ref.

Following are the directions issued by the High Court (AJ&K) in relation to Neelum Jhelum Hydro Electric Project ('NJHPC'), Kohala Hydro Electric Project ('KHPP'), and Mangla Dam Raising Project:

Project developers, Water and Power Development Authority (WAPDA) and Kohala Hydro Construction Limited shall implement all the conditions of Environmental Protection Agency (AJ&K) approvals in letter and spirit. The construction of water bodies, sewage treatment plants connected with both the projects as mentioned in the said approvals shall be completed within one year regarding "NJHP" and before the operation of "KHPP". The Government of Pakistan, Government of AJ&K, and concerned functionaries shall complete and execute the draft tripartite agreements in relation to both the projects within reasonable period but not later than four months. In case of violation of the terms and conditions of the approvals, the Director General, Environmental Protection Agency (AJ&K) should initiate legal proceedings against the concerned persons/authority under law. [p. 826] G

The minimum Environmental flows (e-flows) level of water at "NJHP" shall not be reduced from 20 cumecs during the lean periods of the year and for "KHPP" preferably not less than 39.5 cumecs. However, the condition of Environmental Protection Agency (AJ&K) of minimum 30 cumecse-flow shall not be violated by any means at the latter project. In relation to the Mangla Dam Raising Project concluded between the Government of Pakistan, Government of AJ&K and WAPDA, the concerned parties were to complete the remaining portion of Haryam Bridge within a period of six months and pay the compensation amount to the affectees, land owners according to the final judgments of the Courts within four months. Said parties would complete, maintain and make facilities, public buildings and institutions (schools, dispensaries, hospital and other offices of services) functional by providing resources and staff. Government of AJ&K was to complete all schemes and projects for which it had received funds from WAPDA within six months. It shall also constitute a Committee consisting of persons of known integrity and uprightness to probe into the causes of the delay of the schemes, and if the Committee found any financial irregularities in execution of the schemes, it was to nominate the responsible persons and propose legal action against them.

The Government of Azad Jammu and Kashmir shall be entitled to receive the water usage charges and share of net hydel profit, equal to that given to the other concerned regional governments, which was to be paid by the power producers/purchasers according to final agreement reached between the parties.

Raja Amjad Ali Khan, Haroon Riaz Mughal, Syed Zulqarnain Raza Naqvi and Saqib Ahmed Abbasi, for Petitioners.

Nemo for Respondent No.1 (in both Writ Petitions).

Ch. Shabbir Ahmed for Respondent No.2- WAPDA (in both Writ Petitions).

YLR 2020 HIGH COURT AZAD KASHMIR 902 #

2020 Y L R 902

[High Court (AJ&K)]

Before Raza Ali Khan, J

ABDUL REHMAN and 5 others---Appellants

Versus

NAZIM and 14 others---Respondents

Civil Appeal No.40 of 2018, decided on 8th March, 2019.

(a) Sri Pratap Jammu and Kashmir Laws Consolidation Act (4 of 1977) (B.K.)---

----S. 4---Suit for declaration---Inheritance--- Custom--- Proof---Procedure---Contention of defendants was that plaintiff was not entitled to legacy of her father due to custom followed by the family of the parties---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Defendants were bound to prove the custom in derogation of personal law---Custom must be proved to have been exercised not merely by virtue of an agreement between the parties but as of right---Once custom was pleaded it must be proved by satisfactory evidence---Parties would be presumed to be governed by the personal law unless they proved that they were governed by custom and it did abrogate their personal law---Depriving plaintiff from her share in inheritance of her father was against the mandate of Holy Quran and Sunnah---Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 empowered the Courts to apply Islamic Law where parties to the case were Muslims---Defendants could not prove that their family was governed by the custom, they being Muslims were bound by the Islamic Law---Legacy after the death of a Muslim under the Islamic Law would devolve upon his/her legal heirs---Plaintiff being daughter was entitled to her share from the legacy of her deceased father---Defendants could not deprive plaintiff from her share merely on the basis of possession---Possession of brothers would be deemed to be possession of their sisters unless there was an express repudiation of the claims of sisters---Property of a Muslim after his/her death would devolve upon his legal heirs irrespective of any entry in the revenue record---Muslim could not adopt a course of action or take a stance in opposition and violation of Islamic Injunctions with regard to inheritance or any other aspect of life---No illegality had been committed by the Appellate Court while passing the impugned judgment and decree---Appeal was dismissed, in circumstances.

Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539; Barkat Ali and 6 others v. Mst. Jan Begum and 5 others 1998 SCR 333; Mst. Kaneez Fatima and another v. Ghulam Hussain and 10 others 1985 CLC 217; Muhammad Ashraf Khan and 4 others v. Mst. Rehmat Jan 2001 MLD 212; Ghafooran Bibi and 4 others v. Iftikhar Ahmed and 4 others 2006 MLD 1422; Ishaq's case PLD 1983 SC 273; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Syed Munawar Husain Shah v. Syed Nusrat Hussain and others 2014 CLC 945;

9 and 10 arabi??? rel.

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

----S. 107---Powers of appellate Court---Remand of case---Requirements---Case could only be remanded if there was no material to resolve the issues not attended by the Trial Court and it was necessary to record evidence on such issues---If sufficient material was available on record then appellate Court could decide an issue which had not been attended by the Trial Court without remand of the case to the Trial Court.

Chaudhary Amjad Ali for Appellants.

YLR 2020 HIGH COURT AZAD KASHMIR 1003 #

2020 Y L R 1003

[High Court (AJ&K)]

Before Raza Ali Khan, J

NAVEED AHMED KHAN and another---Petitioners

Versus

The STATE through Advocate General of Azad Jammu and Kashmir, Muzaffarabad and 6 others---Respondents

Application No.171 of 2019, decided on 12th September, 2019.

(a) Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985)---

----Ss. 10, 11, 16 & 19---Criminal Procedure Code (V of 1898), S. 561-A---Inherent powers of High Court---Zina or zina-bil-jabar liable to tazir, kidnapping, abducting or inducing women to compel for marriage, etc., enticing or taking away or detaining with criminal intent a woman---Quashing of FIR---Lady, a sui juris--- Effect--- Petitioners sought quashing of FIR on the ground that the lady was a sui-juris and had contracted marriage out of her free will and consent, therefore, registration of FIR was misuse of authority by the police and its continuation was an abuse of process of law---Petitioners had placed on record a copy of registered nikahnama and no counter version regarding nikah of the petitioners was taken---Contention that the lady was a minor, hence nikah without wali was invalid, had no substance because Form B showed that she was a sui juris, hence, she could competently contract nikah out of her free will---Lady had got recorded her statement that she had contracted marriage out of her free will and no one had kidnapped her---Story narrated by complainant lost its significance as well as veracity when the lady spilled the beans about her alleged abduction---Application under S.561-A, Cr.P.C. was accepted and the FIR was quashed, in circumstances.

2016 SCR 1068 and PLD 2017 HC (AJ&K) 66 ref.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---High court in exercise of its inherent jurisdiction, under S. 561-A, Cr.P.C. has ample powers to quash proceedings if it comes to the conclusion that even if entire evidence is brought on record, there is no likelihood that the accused would be convicted ultimately.

Qamar Pervaiz and another v. The State and others Criminal Appeal No.19 of 2016 rel.

Shahid Ali Awan for Petitioners.

Sardar Javaid Naz, A.A.G. for the State.

YLR 2020 HIGH COURT AZAD KASHMIR 1108 #

2020 Y L R 1108

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan and Raja Sajjad Ahmed Khan, JJ

WAQAS ABID and 12 others---Appellants

Versus

SAJID HUSSAIN and others---Respondents

Criminal Appeals Nos. 103, 114 of 2017 and Murder Reference No. 99 of 2017, decided on 8th April, 2019.

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

----Ss. 302(b) & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused were charged for the murder of two persons of complainant party---Motive behind the occurrence was stated to be a land dispute---Ocular account was furnished by two witnesses---Said witnesses remained consistent and made their statements in line with each other in spite of lengthy cross-examination---Eye-witnesses unanimously pointed out that accused fired repeated shots with a pistol upon deceased persons---Defence had failed to shake the confidence of witnesses regarding their presence at the place of occurrence---Versions narrated by the said witnesses found corroboration from the post-mortem report---Defence had failed to substantiate any reason to suggest that the said witnesses falsely implicated the accused---Record showed that accused put the dead bodies of deceased persons in the vehicle and shifted the same from the spot to the place out of sight and tried to flee away---Accused while putting the dead bodies in the vehicle blooded his clothes---Soon after the arrest, on pointation of the accused, dead bodies, blood stained clothes and vehicle were recovered in presence of the witnesses---Said proceedings and statements of witnesses under S. 161, Cr.P.C. were recorded on the same day without any delay, which eliminated the possibility of consultation, fabrication and concoction---Report of fire arm expert showed that crime weapon/pistol was not in working condition, but in presence of direct evidence, such piece of evidence could not be given much importance---No contradiction in the statements of the prosecution witnesses appeared to have been pointed out or found from their statements---Record showed that complainant did not enter into the witness box during the period of sixteen months of trial---Prosecution had failed to substantiate any reason for his non-appearance---Circumstances established that prosecution had successfully proved its case against the accused beyond any shadow of doubt---Motive alleged by the prosecution remained shrouded in mystery and by non-appearance of complainant in witness box, a case of mitigation was made out---Appeal was partly accepted converting the death sentence into life imprisonment under S. 302(b), P.P.C., in circumstances.

2010 PCr.LJ 1389; 2010 PCr.LJ 1027; 2016 PCr.LJ 114; 2016 PCr.LJ 491; 2016 PCr.LJ 1645; 2017 PCr.LJ 713; 1996 PCr.LJ 1522; 2001 PCr.LJ 524 and PLD 2007 SC (AJ&K) 27 ref.

(b) Criminal trial---

----Related witness---Statement of related witness--- Reliance--- Scope--- Mere relationship did not make a witness as an interested one and testimony of such witness could not be brushed-aside on such ground.

----Contradiction and discrepancies---Scope---Contradiction means negation of version of the prosecution case, mere discrepancies in the details of the facts did not amount to contradiction.

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

----S. 417---Appeal against acquittal---Presumption---Accused, after the acquittal, enjoyed double presumption of innocence---Court decline to make interference with acquittal order until and unless it was found perverse or illegal.

Asia Bibi and 5 others v. Ghazanfar Ali and 3 others 2005 PCr.LJ 415 and Muhammad Saleem v. Abid Hussain and 3 others 2014 YLR 2538 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive---Motive behind the occurrence was stated to be a land dispute which was negated by a prosecution witness, who had specifically deposed that there was no land dispute between the parties---Other witness of alleged motive was also marginal witness of recovery memos---Said witness appeared before the Investigating Agency but he never stated anything with regard to alleged motive---Said witness, however appeared later before the Investigating Officer and had stated that 2/3 days before the occurrence, an altercation took place between accused and deceased persons with the exchange of some bitter words on the dispute of land---Second dispute was allegedly pertaining to outstanding amount of Air tickets but after perusal of whole evidence it showed that no tangible evidence had been brought on record whereby it could be established that outstanding amount of tickets was matter in issue between the parties---No evidence had been brought on record that deceased was running a business of air ticketing, therefore, the motive set up by the prosecution was confusing, weak and ambiguous---Circumstances suggested that prosecution had suppressed material facts regarding the motive which led to the occurrence.

(f) Criminal trial---

----Motive--- Scope--- Once prosecution alleged the motive and failed to prove the same during the trial, such could be taken as mitigating circumstance, while deciding the quantum of sentence.

Shabbir Ahmed v. The State and another 1997 PCr.LJ 1539 rel.

Raja Inamullah Khan for legal heirs of deceased.

Riaz Naveed Butt for convict-appellant.

YLR 2020 HIGH COURT AZAD KASHMIR 1249 #

2020 Y L R 1249

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

MUHAMMAD YAQOOB---Appellant

Versus

MUHAMMAD YOUSAF and 11 others---Respondents

Civil Appeal No. 439 of 2009, decided on 21st November, 2019.

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Suit for right of prior purchase (pre-emption)---Suit land having been transferred through gift deed---Effect---Contention of plaintiff was that suit land had been transferred through gift only to defeat the right of prior purchase of the plaintiff and in fact the transaction was a "sale"---Suit was dismissed concurrently--- Validity--- Donees had no blood relation with the donors and nothing was on record as to why suit land had been gifted---Element of gift-deed had not been substantiated from the evidence of defendants---Necessary ingredients for execution of gift-deed were lacking in the case---Even no element of love and affection appeared to have been found---Appellate Court had failed to appreciate the evidence according to the relevant provisions of law---Impugned judgments and decrees passed by the Courts below as well as gift-deed were set aside---Alleged gift-deed was declared as sale-deed and pre-emption suit was decreed subject to payment of remaining consideration--- Second appeal was allowed, in circumstances.

Muhammad Bashir v. Mirza and others 1987 SCMR 1277; Muhammad Hussain and others v. Miran Bakhsh and others 1989 SCMR 1064; Muhammad Riaz v. Muhammad Riyasat and 8 others 2008 SCR 308 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 rel.

(b) Transfer of Property Act (IV of 1882)---

----Ss. 54 & 122---"Sale" and "gift"---Distinction---Consideration and exchange of money was an essential element for sale, whereas in case of gift there was no element of consideration but same should be voluntary.

----S. 100---Second appeal---Concurrent findings of fact---Concurrent findings of facts could be interfered with in second appeal if same were not supported by any evidence.

Mukhtar Ahmed v. Muhammad Ameen (deceased) through Legal Heirs and 8 others 2017 MLD 845 rel.

Laeeq Mehmood Amir for Appellant.

YLR 2020 HIGH COURT AZAD KASHMIR 1446 #

2020 Y L R 1446

[High Court (AJ&K)]

Before Raza Ali Khan, J

LIAQAT SABIR and 6 others---Appellants

Versus

MUHAMMAD AKHTAR and 63 others---Respondents

Civil Appeal No.16 of 2014, decided on 3rd December, 2019.

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

----Art. 100---Suit for declaration---Private partition---Document more than thirty years old---Presumption of correctness---Scope---Plaintiffs filed suit that private partition of suit property had been effected regarding which agreement had been executed whereas defendants filed suit for joint possession---Suit filed by the plaintiffs was dismissed whereas that of defendants was decreed---Validity---Presumption of correctness of document executed more than thirty years back was permissive and not imperative---Even a document was thirty years old and was produced from proper custody, Court was not bound to presume its genuineness---Court was to decide such presumption under Art. 100 of Qanun-e-Shahadat, 1984 in a judicious manner---Plaintiffs had admitted that defendant had constructed a building on the suit land in their presence---Plaintiffs were estopped by their conduct and they could not claim that the building be demolished---Plaintiffs could not claim any right on the basis of a document which had been violated on their behalf---Courts below had rightly not attached the presumption of truth to the document relied upon by the plaintiffs on the ground that same was more than thirty years old---Plaintiffs had failed to point out any mis-reading or non-reading of evidence in the impugned judgments passed by the Courts below---Second appeal was dismissed, in circumstances.

2019 SCR 622; PLD 2005 SC 455; 2019 YLR 1310; 2001 YLR 161 and 2004 CLC 882 ref.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497 and Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 rel.

Sardar Iftikhar Ahmed Khan for Appellants.

Sardar Muhammad Suleman Khan for Respondents Nos.1 to 3.

YLR 2020 HIGH COURT AZAD KASHMIR 1744 #

2020 Y L R 1744

[High Court (AJ&K)]

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

EHTESAB BUREAU through Deputy Chief Prosecutor---Appellant

Versus

SHABBIR FAROOQI---Respondent

Criminal Appeal No. 5 of 2012, decided on 29th October, 2019.

Penal Code (XLV of 1860)---

----Ss. 409, 467 & 468---Azad Jammu and Kashmir Prevention of Corruption Act, 1950, S. 5(2)---Criminal breach of trust by public servant, forgery of valuable security, forgery for purpose of cheating, taking illegal gratification---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the respondent made tempering in the revenue record in respect of land of complainant and established a new survey number in the name of his father and thereafter, the said land was entered in record as crown land, due to which, complainant suffered irreparable loss---Record showed that through tempering a new survey number was inserted in Field Book in name of respondent's father---Respondent admitted that he remained posted as Muharrar/Tehvildar settlement during the period from 1983 to 1993---Conclusion could be that during the said period respondent was performing duty as 'Muharrar'/'Tehvildar' settlement hence, record was under his custody and he made tampering therein by inserting new survey number--- Opinion of handwriting expert was not required to prove guilt against accused/respondent---If respondent was not Tehvildar of record during the aforesaid period, then he should have specifically pin point the name of such Tehvildar in his statements---Respondent failed to do so and simply stated that Girdawer was Tehvildar---According to the contents of tempering made in revenue record, it was evident that respondent was indirect beneficiary of the said tampering---Respondent tried to implicate the concerned patwari by deposing that he established survey number, during settlement, whereas the said patwari clearly deposed that accused was performing his duty as 'Muharrar' revenue settlement and entire record of Tehsil was kept in his custody, who was also "Tehvildar" record---After conducing settlement, respondent as per instruction of Tehsildar, submitted record to "Muharrar" revenue, accused---Circumstances established that the prosecution had proved its case against accused-respondent beyond doubt---Appeal against acquittal was allowed and respondent was convicted and sentenced to one year rigorous imprisonment, in circumstances.

Wazarat Hussain v. Nazir Akhtar and another 2010 PCr.LJ 1567 ref.

Syed Mazhar Azad Gillani, Deputy Chief Prosecutor for Ehtesab Bureau-Appellant.

YLR 2020 HIGH COURT AZAD KASHMIR 2077 #

2020 Y L R 2077

[High Court (AJ&K)]

Before Ch. Muhammad Munir and Raza Ali Khan, JJ

MUHAMMAD LATIF and 17 others---Appellants

Versus

MUHAMMAD SADIQ and 8 others---Respondents

Murder Appeal No. 5 of 2007, decided on 26th November, 2019.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused persons with common intention murdered the brothers of complainant---Motive behind the occurrence was stated to be that the complainant got registered FIR against one of the co-accused---Appeal against acquittal, mainly pressed into service that the accused being members of unlawful assembly were equally liable for the murder of brothers of complainant---Under S.149, P.P.C., every member of unlawful assembly was equally liable for the offence committed by other member of unlawful assembly---Evidence led by the prosecution in support of charge under S.149, P.P.C. was not sufficient to prove the charge of common intention/ object of the accused---Presence of accused persons, at the place of occurrence, was natural and the prosecution could not produce any evidence from which it could be ascertained that accused had any pre-planning to murder the brothers of complainant---Prosecution witnesses did not depose in their statements that the occurrence was pre-planned and even the allegation under S.149, P.P.C. was not put to the accused in their statements recorded under 342, Cr.P.C.---Without providing a right of defence to the accused, the same could not be read against them---Time, place the manner as well as weapons used in the incident suggested that there was no pre-planning for the murder of brothers of the complainant rather the occurrence took place suddenly---Conditions necessary for applicability of S.149, P.P.C. were not fulfilled, hence, the same could not be made applicable to the facts of the case and all the accused would not be liable to punishment for the act committed by him/her in the incident---Impugned judgment was well reasoned and based on proper appreciation of evidence---Appeal against acquittal was dismissed, in circumstances.

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

----S. 149---Common object---Scope---Prosecution had to prove the provisions of S.149, P.P.C. through tangible and sufficient evidence and not from conjectures and speculations.

Muhammad Altaf and 5 others v. The State 2002 SCMR 189 rel.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from co-accused---Reliance---Scope---Prosecution case was that the accused persons with common intention murdered the brothers of complainant---First Information Report showed that one of the co-accused hit knife blow in the belly of deceased---Accused hit deceased at his head with butt of hatchet and other five accused persons co-accused injured the deceased persons---First Information Report stated that one co-accused inflicted sword injury to deceased, however, as per recovery memo hatchet was recovered on the poitation of one co-accused hence, the case to the extent of injury caused by said co-accused and recovery of hatchet on the pointation of same co-accused had become doubtful---Injuries allegedly inflicted by accused and co-accused persons on the body of deceased were not supported by medical reports because as per medical reports no injury was received by deceased, except the wounds caused by blows of knife/dagger or hatchet---Mere statements of prosecution witnesses, which were not supported by medical evidence, accused persons could not be convicted---Appeal against acquittal was dismissed, in circumstances.

(e) Criminal trial---

----Ocular account and medical evidence---Contradiction---Scope---When medical evidence made the ocular testimony improbable, that became a relevant factor in the process of evaluation of evidence, however, where the medical evidence went so far that it completely ruled out all possibilities of the ocular evidence could true, the ocular evidence could be disbelieved---Ocular evidence had to be believed but when the ocular account itself was inconsistent, contradictory and not confidence inspiring then no reliance could be placed thereupon.

2014 YLR 989 rel.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Accused after acquittal by a court of competent jurisdiction, enjoyed double presumption of innocence---Acquittal order could be recalled if the court came to the conclusion that the same was capricious, fanciful, perverse and arbitrary or had been passed against the settled norms of administration of justice.

Nasrullah v. Shamim Akhtar and 4 others 2010 PCr.LJ 1623 rel.

Sardar Iftikhar Ahmed for Appellants.

Sardar Arsalan Nisar for Respondents.

YLR 2020 HIGH COURT AZAD KASHMIR 2251 #

2020 Y L R 2251

[High Court (AJ&K)]

Before Raja Sajjad Ahmed Khan, J

SHAFIQUE AHMED KHAN---Petitioner

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 8 others---Respondents

Writ Petition No. 129 of 2017, decided on 24th December, 2019.

Land Acquisition Act (I of 1894)--

----Ss. 4, 11, 31 & 48---Azad Jammu and Kashmir Land Acquisition Rules, 1994, Rr. 14 & 15---Land acquisition---Compensation, payment of---Authorities acquired land for public purpose but process for payment of compensation was suspended till approval of the project---Validity---Land of petitioner had been acquired compulsorily and same had been handed over to Land Acquisition Collector---Payment of compensation had not been finalized and acquisition process had been suspended for indefinite period---Land Acquisition Collector was bound to pay compensation of acquired land after issuance of award to the landowner---Authorities had neither used acquired land for public purpose nor the compensation amount had been paid to the land owner nor same had been reverted to original landowner rather acquisition process had been suspended for indefinite period---Suspension of acquisition proceedings had not been provided anywhere in Land Acquisition Act, 1894 and Rules made thereunder---Authorities had not requested to the Government for de-notifying the awarded land---Authorities could not deny or refuse the compensation to landowner who had been dispossessed from his land---Every subject had a right to acquire, hold and dispose of the property and could not be deprived from his property save in accordance with law---Petitioner had been deprived from his land and compensation had not been paid---Courts were custodian in such like matters---Impugned notification having been issued without legal backing was set aside---Authorities were directed to pay compensation amount including 15% compulsory acquisition charges along with 6% annual interest---Writ petition was allowed, in circumstances.

PLD 2004 AJ&K 30 and PLD 1976 Lah. 747distinguished.

1993 SCR 88; 2008 SCR 590; Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655; 2009 SCR 415; 2004 SCR 266; 1999 MLD 268; Khushi Muhammad v. Muhammad Siddique and 5 others 2018 SCR 342 and AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 382 rel.

Masood A. Sheikh for Petitioner.

YLR 2020 HIGH COURT AZAD KASHMIR 2317 #

2020 Y L R 2317

[High Court (AJ&K)]

Before Sadaqat Hussain Raja and Raza Ali Khan, JJ

ABDUL QAYYUM and 6 others---Appellants

Versus

MUHAMMAD ISHAQ and others---Respondents

Criminal Appeals Nos. 1, 8 and 9 of 2008, decided on 11th October, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(c) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Recovery of weapon---Medical evidence---Motive--- Scope--- Prosecution case against accused was that he murdered the deceased---Motive behind the occurrence was that the accused wanted to be appointed as watchman in the place of deceased---Weapon of offence was recovered on the pointation of accused---One of the eye-witnesses deposed that the accused cried loudly, whereupon, he looked towards the accused, at that time accused and deceased were in front of each other, thereafter, accused fired, which hit the deceased---Said eye-witness had not stated in his statement recorded under S.161, Cr.P.C. that the accused raised any cry---Another eye-witness deposed in her statement that she was grazing her cattle whereas accused and his son was cutting grass---Deceased forbade them from cutting grass, whereupon, accused fired which hit the deceased at his eye---Medical report also supported the prosecution version---Complainant had specifically alleged the motive of occurrence in the FIR and the prosecution witnesses had established the motive behind the occurrence in their statements---High Court observed that aggravating and mitigating factors justified a sentence lesser than 25 years---Appeals filed by convict were accepted partially and he was convicted under S.302(c), P.P.C. and was awarded 14 years imprisonment, in circumstances.

2004 YLR 2803; 2007 SCR 332; Ejaz Ahmad alias Jaggi v. State 2007 YLR 1560; Syed Afzaal Shah v. State and another 2010 PCr.LJ 1567; Fiyyaz Ahmad and others v. The State and others 2008 PCr.LJ 868; Asia Bibi (widow) and 5 others v. Ghazanfar Ali and 3 others 2005 PCr.LJ 415; Ajaib Sikandar v. Muhammad Javaid alias Jaidee and another 2006 PCr.LJ SC (AJ&K) 1893; Shahzad and 9 others v. Rana Qamar and 5 others 2019 YLR 2508; Muhammad Azeem alias Dodo Katohar v. The State 2012 YLR 724; Ahsaan Azeem and 2 others v. The State and 2 others 2014 SCR 735; Medical Jurisprudence by Modi 21st Century Edition Page 354; AIR 1957 Cal. 709; 2002 PCr.LJ 62; PLD 1974 Lah. 929; 2004 PCr.LJ 1209; 2001 PCr.LJ 268; PLD 2005 Pesh. 166; 2008 MLD 557; 2004 SCMR 447; 1993 SCMR 155; PLD 1992 SC (AJK) 20; PLD 1984 SC (AJK) 82; 1997 PCr.LJ 5; 2001 SCR 2004; 1997 PCr.LJ 1539; 2010 SCR 75; 2014 SCR 893; 2014 SCR 1585; 1999 MLD 400; 2008 SCMR 338; PLD 2009 SC 777; 1997 PCr.LJ 1522; PLD 2007 SC (AJ&K) 77 and 1999 SCMR 1469 ref.

Sardar Muhammad Suleman Khan for Convict/Appellant.

Sardar Saood Khan for the Complainant.

Islamabad

YLR 2020 ISLAMABAD 356 #

2020 Y L R 356

[Islamabad]

Before Aamer Farooq, J

TALAT HUSSAIN---Petitioner

Versus

AQIB MEHMOOD and another---Respondents

Criminal Miscellaneous No. 461-M of 2019, decided on 15th July, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Accused/ petitioner was granted bail, however, few offences were added subsequently which were not part of the original FIR, therefore, jail authorities did not release the petitioner---Validity---Matter was heard in detail on merit by the High Court and bail was granted to the petitioner with observations that it was just and proper that the bail was considered to be granted in the offences as well which were inadvertently not mentioned in the bail granting order---High Court allowed the bail to the petitioner to the extent of offences added subsequently---Petitioner was admitted to bail accordingly.

Mst. Shahida Parveen v. The State and another 1995 MLD 1082 rel.

Abdul Shakoor v. The State 2004 Cr.LJ 399 and Muhammad Alam v. The State 2018 PCr.LJ 837 ref.

Raja Muhammad Shafat Khan for Petitioner.

YLR 2020 ISLAMABAD 891 #

2020 Y L R 891

[Islamabad]

Before Ghulam Azam Qambrani, J

ASIM JAHANGIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 804-B of 2019, decided on 8th January, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 412---Robbery and dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Principle of consistency---Failure to conduct identification parade---Completion of investigation---Effect---Further inquiry---Complainant alleged that his wife informed him on the phone that two young boys, duly armed with weapons, had entered into their house and on show of force had looted valuable ornaments and cash amount---Complainant nominated the accused persons through supplementary statement---Identification parade was not conducted during the course of investigation---Complainant was not an eye-witness of the occurrence---No specific role was assigned to any of the accused nor the presence of accused was shown at the time of alleged occurrence---Co-accused had also been granted bail on the same set of evidence, therefore, on the principle of consistency accused was entitled to bail---Challan of the case had been submitted---Tentative assessment of the record revealed that the case was one of further inquiry---Petition for grant of bail was allowed.

The State v. Rafiq Ahmed Channa 2010 SCMR 580 rel.

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

----S. 497---Bail---Absconsion---Effect---Bail can be granted to an accused, if he has a good case for grant of bail on merits---Absconsion does not come in the way of granting bail to the accused.

Mitho Pitafi v. The State 2009 SCMR 299 ref.

----S. 497---Bail---Principle---Bail cannot be withheld as a punishment.

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

----S. 497---Bail---Principle---No legal or moral compulsion exists to keep people in jail merely on the allegation that they have committed an offence punishable with death or transportation, unless reasonable grounds exist to disclose their complicity.

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

----S. 497---Bail---Principle---Ultimate conviction and incarceration of guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Musharaf Khan for Petitioner.

Raja Waqar Ahmed for the Complainant.

Sadaqat Ali Jehangir, State Counsel.

YLR 2020 ISLAMABAD 909 #

2020 Y L R 909

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

GHULAM SARWAR SINDHU---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Writ Petition No. 4547 of 2018, decided on 18th April, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Pre-arrest bail, grant of---Re-investigation---Case of further inquiry---Reference, non-filing of---Accused was arrested and placed in judicial custody on misuse of authority in awarding contract---Validity---Accused was not solely responsible for award of contract in question to company---Final decision in such matter was made by Capital Development Authority Board and accused was only one of twelve persons against whom reference was intended to be filed---Such remained to be determined during trial as to whether accused had gained any benefit due to any misuse of his authority or had conferred any benefit on company---Expenditure incurred by company in establishing facilities, which were now owned by Capital Development Authority and profits earned by company from operation of facility were also to be ascertained during trial---Executive Board of National Accountability Bureau in its meeting, closed inquiry regarding award of contract in question---Such was one of exceptional circumstances warranting grant of post-arrest bail to accused---Accused had remained incarcerated for a period of five months and reference was not filed---Bail was granted, in circumstances.

Sardar Muhammad Latif Khan Khosa, Sardar Shahbaz Ali Khan Khosa, Syed Iqbal Hussain Shah Gillani, Syed Mehmood Hussain Gillani, Rai Mudassir Iqbal, Habibullah Zia Khan, Syeda Nazgul Shah and Sozain Khattak for Petitioner.

Barrister Rizwan Ahmed, Special Prosecutor, NAB with Malik Muhammad Uzair Rehman, I.O. for Respondents.

Syed Masood Hussain for respondent/CDA for Respondents (in W.P. No. 4411 of 2018).

YLR 2020 ISLAMABAD 932 #

2020 Y L R 932

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD AZHAR through Attorney and 6 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE-VII, WEST, ISLAMABAD and 2 others Respondents

Writ Petitions Nos. 820 and 2189 of 2019, decided on 7th January, 2020.

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

----S. 17---Eviction of tenant---Bona fide need of landlord---Eviction through attorney---Periodic tenancy---Petitioners were co-owners of property who filed for eviction of respondents for bona fide personal need---Contention of respondents was that they were not tenants under petitioners and that eviction was not filed properly---Rent Controller allowed eviction but Lower Appellate Court denied the same---Validity---Where there was admission of relationship and it was in specific words, same was an admission of fact---Rent Controller and Lower Appellate Court rightly observed that respondents were tenants under the petitioners---Parties failed to produce original lease agreement but otherwise relationship was admitted---Tenancy could be treated as periodic based on frequency with which tenants paid rent---If landlord filed eviction application in such tenancies that application, meant that tenancy stood expired as landlord did not wish to continue with same---Expiry of lease was a valid ground for eviction of tenant under Islamabad Rent Restriction Ordinance, 2001---Personal bona fide need was a valid ground and also petitioners were well within their rights as co-owners in property to file an eviction application and same did not have to be filed by owners of property---High Court allowed eviction application filed by petitioners on grounds of personal bona fide need and expiry of lease agreement---High Court directed respon-dents to vacate premises---Constitutional petition was disposed of accordingly.

Anees Haider v. Raja Maqsood Hussain PLD 2011 Lah. 273; Muhammad Faisal Ahmed and others v. Rent Controller West Islamabad and others (Civil Petitions Nos.4861 and 4862 of 2017); Abdul Samad Khan and 5 others v. Jamshed and 7 others 2015 MLD 1642; Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237; Mst. Anwari Begum through Attorney v. Mst. Asghari Khanum and 7 others 2009 MLD 1279; Mst. Akhtar Fatima through Legal Heirs and another v. Bakhat Rafee Shah and another 2016 CLC 887; Mst. Nasira Afridi v. Muhammad Akbar 2015 MLD 171 and Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 ref.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Muhammad Akbar Chohan v. Rent Controller, Islamabad and others and 2017 MLD 53 rel.

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

----S. 17---Civil Procedure Code (V of 1908), Preamble---Qanun-e-Shahadat (10 of 1984), Preamble---Proceedings before Rent Controller---Procedure---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 do not apply to proceedings before Rent Controller---Procedure that is to be followed by Rent Controller is provided in S. 17 of Islamabad Rent Restriction Ordinance, 2001.

Sardar Arshad Mahmood Khan for Petitioners (in Writ Petition No. 820 of 2019).

Fiaz Ahmad Anjum Jandran for Petitioners (in Writ Petition No. 2189 of 2019).

Fiaz Ahmad Anjum Jandran for Respondents Nos. 2 and 3 (in Writ Petition No. 820 of 2019).

Sardar Arshad Mahmood Khan for Respondents Nos.3 to 9 (in Writ Petition No. 2189 of 2019).

YLR 2020 ISLAMABAD 1222 #

2020 Y L R 1222

[Islamabad]

Before Aamer Farooq and Lubna Saleem Pervez, JJ

ARSHAD IQBAL---Appellant

Versus

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION through Director General through Director General---Respondent

I.C.A. No. 100 of 2018 in Writ Petition No. 220 of 2018, decided on 16th January, 2020.

Allotment of plot---

----Cancellation of allotment---Damages, recovery of---Appellant claimed to have purchased plot in question and got transferred same in his name by Federal Government Employees Housing Foundation---Grievance of petitioner was that Foundation had illegally cancelled plot and had also sought compensation against Foundation---Validity---Appellant in fact claimed damages from Foundation for cancellation of plot for which he had named same as compensation---Single Judge of High Court rightly dismissed Constitutional petition as alternate remedy was available to appellant before appropriate civil court as same was against spirit of Art. 199 of the Constitution---Constitutional petition was not substitute for civil proceedings before appropriate forums on pretext of being not an efficacious remedy---Constitutional petition could not provide shortcut method for expeditious redressal of grievance of aggrieved party through bypassing courts below, provided under law for effective decision of matters after examining evidences on issues---Jurisdiction of High Court under Art. 199 of Constitution could only be invoked where no adequate remedy was provided by law and it did not speak of efficacious remedy---Adequacy and efficacy of remedy were dependent upon circumstances of each case as to what could be efficacious and adequate in facts and circumstances of the case could not be so in other---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

1988 CLC 2267; PLD 2004 SC 108 and Muhammad Abbasi v. S.H.O. Bhara Kahu PLD 2010 SC 969 ref.

Muhammad Abbasi v. S.H.O. Bhara Kahu PLD 2010 SC 969 rel.

Waheed Akhter and Shakeel Awan for Petitioner.

YLR 2020 ISLAMABAD 1469 #

2020 Y L R 1469

[Islamabad]

Before Mohsin Akhtar Kayani, J

NOOR AHMED ZEESHAN---Petitioner

Versus

Ch. ABDUL RAUF and 2 others---Respondents

Writ Petition No. 3620 of 2019, decided on 13th January, 2020.

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

----S. 17---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Scope---Eviction petition was accepted on the grounds of default in payment of rent and personal need of landlord---Validity---Tenant dispatched rent through money order but same was late for two months due to which landlord did not receive the same---Tenant had committed default, in circumstances---Demised premises was required to the landlord for his son who was jobless---Sole testimony of landlord with regard to choice of his property and personal bona fide need was sufficient for ejectment of tenant---No illegality had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Saleem Ullah Khan v. Federation of Pakistan 2017 YLR 1224 distinguished.

Iqbal Book Depot v. Khatib Ahmad 2001 SCMR 1197; Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 and Moazzam Habib v. FOP and others 2018 YLR 222 rel.

(b) Affidavit---

----When deponent had failed to appear before the Court to substantiate his plea then such affidavit could not be considered or taken into account.

Abdul Majeed through Legal Heirs v. Abdul Rasheed and others PLD 2016 Lah. 383 and Mst. Iqbal Bibi v. Additional District Judge and others 2014 MLD 1206 rel.

Amir Latif Gill for Petitioner.

YLR 2020 ISLAMABAD 1695 #

2020 Y L R 1695

[Islamabad]

Before Mohsin Akhtar Kayani, J

GHULAM AHMED CHAUDHRY through Legal heirs---Petitioner

Versus

AKBAR HUSSAIN (deceased) through Legal heirs and 2 others---Respondents

Civil Revision No. 335 of 2019, decided on 16th April, 2020.

(a) Transfer of Property Act (IV of 1882)---

----S. 54---"Sale"---Necessary ingredients: a) agreement, b) parties to sale transaction, c) sale consideration (fixed or paid) and d) subject matter of sale transaction.

Fakhar-ud-Din v. Muhammad Iqbal 2015 CLC 994; Sheikh Akhtar Aziz v. Mst. Shabnam Begum 2019 SCMR 524 and Atta Muhammad v. Muhammad Afzal 2012 SCMR 1522 rel.

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

----Ss.8 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 78, 79, 117, 119 & 120---Suit for recovery of possession of immovable property and cancellation of document---Specific plea---Proof---Onus to prove---Comparison of signatures---Appellate Court, powers of---Plaintiff claimed to be owner of suit property and sought cancellation of sale deed as a result of fraud and had also sought recovery of possession---Defendant raised specific plea of bona fide purchaser on the basis of agreement to sell---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Defendant took a specific stance that while exercising agreement to sell he had paid sale consideration to plaintiff in presence of two witnesses---Defendant only produced a certificate of Bank to the extent of issuance of cheque, not as a pay order or a proof of payment through which it could be justified that certain amount was transferred in the account of plaintiff---Burden of proof was upon defendant but the same had not been discharged---Defendant merely placed copy of agreement on record, which was signed by two witnesses, one of whom was son of defendant who had been produced before Court, while the other attesting witness was not produced nor even known---Plaintiff produced original passport before Lower Appellate Court as well as before High Court for the purpose of comparison---High Court considered the original passport of plaintiff containing his signatures, which proved that the signatures available on record were different as observed from the naked eyes---Lower Appellate Court had rightly formulated opinion regarding difference of signatures of plaintiff---High Court in exercise of revisional jurisdiction under S.115, C.P.C. was in consonance with the findings of Lower Appellate Court---Defendant failed to place on record any exception or strong reason for interference in judgment and decree passed by Lower Appellate Court---Fraud was played by defendant in connivance with Capital Development Authority officials by using an imaginary name---Claim of defendant that he was bona fide purchaser was not proved on record nor even sale was justified---Transfer of suit property in favour of defendant was not proved on record---Revision was dismissed in circumstances.

Muhammad Sharif v. Mst. Sardaran Bibi 2002 MLD 1002; Mst. Nusrat Bibi v. Nazir Akhtar 2015 SCMR 808; Islam-ud-Din v. Mst. Noor Jahan 2016 SCMR 986; Muhammad Abbas v. Muhammad Ismail 2017 CLC 1533; Sultan Ahmad v. Muhammad Yousaf 2011 SCMR 621; Saeed Ahmad v. The State PLD 2003 SC 389 ; Sahib Khan v. Muhammad Pannah PLD 1994 SC 162; Muhammad Boota v. Basharat Ali 2014 CLD 63; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Abdul Rasheed v. Syed Fazal Ali Shah 2016 SCMR 2163; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad PLD 2015 SC 212; Abdul Rehman v. Ghulam Muhammad 2010 SCMR 978; Muhammad Nawaz v. Haji Muhammad Baran Khan 2013 SCMR 1300 and Farid Bakhsh v. Jind Wadda 2015 SCMR 1044 ref.

----Arts. 117 & 120---Fraud---Proof---Onus to prove---Shifting of onus---Principle---Initial onus of proof is upon beneficiary and when the beneficiary proves his case and discharges his onus, then burden of proof shifts upon the person who is alleging fraud.

Khan Muhammad v. Muhammad Din 2010 SCMR 1351; Aurangzeb through LRs v. Muhammad Jaffar 2007 SCMR 236; Muhammad Saee v. Mst. Sharaf Elahi 2010 SCMR 1358; Khaliqdad Khan v. Mst. Zeenat Khatoon 2010 SCMR 1370; Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 and Ghulam Farid v. Sher Rehman 2016 SCMR 862 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Powers under S.115, C.P.C. are primarily intended for correcting error made by subordinate Court in exercise of its jurisdiction---Ordinarily the erroneous decision of fact is not revisable except in cases where the decision was based on no evidence or inadmissible evidence or order sought to be revised was so perverse that grave miscarriage of justice was likely to be resulted therefrom.

Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish 2010 SCMR 817 and Muhammad Idrees v. Muhammad Pervaiz 2010 SCMR 5 rel.

Muhammad Ishtiaq Ahmad Raja for Petitioners.

Ghulam Shabbir Akbar for CDA/ Respondent No.3.

Dr. Ulfat Shah, Attorney for Respondents Nos. 1 and 2.

Sajid Mehmood Cheema, Inspector Legal.

Muhammad Athar Khan, Inspector/S.H.O., Police Station Kohsar, Islamabad.

Muhammad Nawaz, S.I., Police Station Kohsar, Islamabad.

YLR 2020 ISLAMABAD 1972 #

2020 Y L R 1972

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

CHANZEB AKHTAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 125, Jail Appeal No. 130 and Murder Reference No. 8 of 2018, decided on 23rd April, 2020.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.19---Qatl-i-amd---Appreciation of evidence---Admissibility of evidence as res gestae---Accused was charged for committing murder of his wife by firing---Record showed that the court witness had seen the accused fleeing away from the place of occurrence after commission of offence---Prosecution witness had also seen the accused armed with pistol after committing murder of deceased---Such testimonies fully attracted the role of res gestae on the strength of Art.19 of the Qanun-e-Shahadat, 1984---Fact in issue as narrated by said witnesses that the accused after resorting to firing upon his wife in his bedroom at around 12:15 a.m. in the midnight fled away from the scene while armed with .30 bore pistol had clearly been proved and was admissible evidence against the accused.

The State v. Maheen Zafar 2018 PCr.LJ 841; Feroz Khan v. The State 2015 YLR 73 and Sultan v. The State 1993 SCMR 654 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused was charged for committing murder of his wife by firing---Autopsy of deceased was conducted by Medical Officer, who described 09 injuries on the dead body of deceased, including 06 entry wounds on the upper part of her body---Medical evidence had highlighted blackening was of different entry wounds while the recovery of pellets was done from different wounds which further showed the conduct of accused that he had used the weapon of offence at closed range---Blackening at entry wounds further justified that fires were made from a close range---Court had confidently found that the accused had a clear cut intention to commit murder in a desperate manner having serious rage in back of his mind, which had otherwise been observed due to repetition of firearm injuries from a close range and causing immediate death of deceased in her bedroom on a cot---Investigating Officer while preparing the inquest report with the help of witness/Lady Head Constable also confirmed the corresponding holes with feature of blackening---Said aspect left nothing to disbelieve the intention of the accused, who intended to commit murder of his wife by using a fire arm from a close range---Appeal against conviction was dismissed with modification in sentence.

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 and Mir Muhammad's case 1972 PCr.LJ 1108 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence and crime empties--- Reliance--- Scope--- Accused was charged for committing murder of his wife by firing---Record showed that the accused surrendered himself on 07.02.2015 in police station in connection with murder of his wife---On 09.02.2015, the accused got recovered 30-bore pistol used in the alleged occurrence from a garage situated in a haveli---Said facts disclosed the special knowledge of concealment of weapon of offence by the accused, which was not known to anyone else---Even the site plan of place of recovery prepared by draftsman disclosed that the entire compound had a main gate and no one was present in the said compound as the same was being exclusively managed by the accused---Other recovery witness/ Head Constable also narrated similar facts and nothing favourable was brought on record by the accused in the cross-examination---No notable person had been joined in recovery proceedings by the Investigating Officer---Even the garage from where the recovery of weapon of offence was effected was an open place, but the same was within the compound and the placement of weapon was in exclusive knowledge of the accused---Recovery of weapon of offence, in circumstances, could not be disbelieved---Forensic Science Laboratory Report showed that the two crime cartridges of 30-bore pistol collected by Investigating Officer from the place of occurrence were found matched with the pistol---Parcel contained three Sikka Goli (pellets) recovered from the dead body of deceased also belonged to one group and had been fired from the pistol recovered on the pointation of accused---Said aspect clearly established that 30-bore pistol was used by the accused in the alleged crime and same had been found matched---Even three of the slugs/pellets recovered from the dead body of deceased were found to be fired from said pistol and as such there was no discrepancy in the entire evidence of Forensic Science Laboratory---Appeal against conviction was dismissed with modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Effect---Accused was charged for committing murder of his wife by firing---Record showed that the conduct of accused was not above board as he had not brought on record any valid reason for non-submission of complaint regarding murder of his wife to the police station, rather he fled away from the scene---Motive had not been established in the case nor brought on record by any of the party---Accused was the best man to justify his position as his wife was murdered in his room at odd hours of the night---Absence of motive or lack of motive or the cases where motive had been shrouded in mystery was immaterial as it would not affect the case of prosecution--- Circumstances established that the accused had failed to explain his conduct in this case, even his brothers and family members had tried to protect him and concealed the evidence, rather tried to destroy the prosecution evidence---No motive had been brought on record by the prosecution nor even suggested in the case, neither any reason or a clue had been reflected from record as to why a lady (deceased) was murdered in a ruthless manner in her own bedroom---Such silence about motive, however, had been considered immaterial as a mitigating circumstance but that aspect could not be taken lightly as the accused had been charged under S.302(b), P.P.C. for causing murder of his wife in their own bedroom and it was not imaginable to a prudent mind that a murder in such a brutal manner could be done without a reason or motive---Motive, in circumstances, had been concealed by either party due to family honour as insinuation could be taken from the statements of prosecution witnesses that family members of accused restricted the police party for about six hours in shifting the dead body of deceased to hospital for the purpose of post-mortem examination--- Death sentence awarded to the accused was converted into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Muhammad Latif alias Teefa v. The State 2008 SCMR 1106 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Lack of motive---Effect---Lack of motive was immaterial to withhold normal penalty of death in murder case, when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.

Nazakat v. Hazrat Jamal and others PLD 2007 SC 453; Nasir Shah v. The State 2006 SCMR 1796 and Musa v. The State 2008 SCMR 997 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Circumstantial evidence--- Scope----Accused was charged for committing murder of his wife by firing---Site plan of place of occurrence disclosed the availability of light at two points, while those two points had also been referred in the un-scaled site plan prepared by Investigating Officer---Prosecution had justified the presence of light in courtyard at the time of occurrence, when accused was fleeing away from the scene after commission of offence---Even otherwise, prosecution witness, who was the cousin of accused as well as brother-in-law and the next door neighbour, had seen the accused from his roof after hearing the fire shots---No denial that accused and said witness were close relatives and the identification of a close relative even in low light, was not a big deal---Record transpired that nothing was left in favour of accused as his own brother by way of submission of his affidavit had vowed that he had seen the accused fleeing away from the scene of occurrence after commission of offence, whereafter he informed complainant regarding the alleged incident---Said aspect was also noted by Investigating Officer that the complainant came to police station in late hours of night with accused's brother---Said circumstantial chain linked all the facts relating to the crime and prosecution had successfully proved that chain of evidence---Accused was under heavy onus to explain as to why his wife met with an unnatural death, especially when the weapon of offence i.e. pistol was recovered on his pointation, however, no logical explanation was rendered by the accused to discredit the medical and forensic evidence or the testimonies of complainant and last seen witness---Appeal against conviction was dismissed with modification in sentence.

Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmad v. The State 2015 SCMR 710; Abdul Majeed v. The State 2011 SCMR 941; Asad Khan v. The State PLD 2017 SC 681; Afzal Hussain Shah v. The State 1991 PCr.LJ 113; Syed Tahir Shah v. The State 2018 PCr.LJ 242; Muhammad Akram v. The State 2003 SCMR 855 and Nazir Ahmad v. The State 2016 SCMR 1628 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 122--- Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Burden of proof---Scope---Accused was charged for committing murder of his wife by firing---Admittedly, the burden of proof never shifts upon the accused, however it was the responsibility of accused in such circumstances where a wife or a vulnerable dependent had met an unnatural death within confined of the house of accused, such helpless and weak person required protection and care and it would not be sufficient for the accused to stay silent in circumstances which tend to incriminate him and if he elected to do, he lightened the burden of the prosecution---Appeal against conviction was dismissed with modification in sentence.

Raja Muhammad Farooq for Appellant.

Zahid Asif Chaudhary for Respondent No.2/Complainant.

Barrister Qurat-ul-Ain, State Counsel.

YLR 2020 ISLAMABAD 2135 #

2020 Y L R 2135

[Islamabd]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD SULEMAN and 8 others---Petitioners

Versus

ABDUL AZIZ and 4 others---Respondents

Civil Revision No. 249 of 2018, decided on 14th April, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Temporary injunction, grant of---Ingredients---Trial Court dismissed application for grant of temporary injunction but Appellate Court accepted the same--- Validity--- When any document produced on behalf of plaintiff had been denied by the defendant then authenticity and credibility of the said document would be subject to final adjudication by the Court---Temporary injunction in that eventuality could not be granted---Disputed questions of facts were involved in the present case and same could be determined through evidence---Defendants were in possession of the suit property and they were entitled to free and lawful usufruct of the same---Limitation was a mixed question of law and fact and Trial Court was to decide the same after recording of evidence---Appellate Court had decided the question of limitation while disposing of petition for grant of temporary injunction and nothing was left for the Trial Court to adjudicate upon with regard to limitation---Jurisdiction of Trial Court had been exercised by the Appellate Court, which was not vested in it---Three ingredients i.e. prima facie case, balance of convenience and irreparable loss to the plaintiff must coexist for grant of temporary injunction---Detailed inquiry was required to finally adjudicate upon the lis and right, if any, in favour of plaintiff would depend upon final outcome of the suit---Defendants would suffer an irreparable loss if injunction was granted in favour of plaintiff---Impugned order passed by the Appellate Court was not sustainable which was set aside and that of Trial Court was restored---Revision was allowed, in circumstances.

Al-Tamash Medical Society through Secretary v. Dr. Anwar Bin Ye Ju and 9 others 2019 CLC 1 and Messrs Rashid Silk Mills and 29 others v. Federation of Pakistan and others PLD 2011 Sindh 189 rel.

Raja Shahzad Javed for Petitioners.

Zulfiqar Ali Abbasi for Respondents Nos.1 to 3.

YLR 2020 ISLAMABAD 2269 #

2020 Y L R 2269

[Islamabad]

Before Miangul Hassan Aurangzeb, J

UMER TANVEER BUTT---Petitioner

Versus

MUHAMMAD IBRAHIM and others---Respondents

Writ Petition No. 1590 of 2017, decided on 16th April, 2020.

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

----Ss. 17, 2(j) & 5---Ejectment of tenant---Denial of relationship of landlord and tenant---Lease agreement---Onus to prove---Claim of sale agreement by tenant in his favour---Scope---Ex-parte proceedings having been set aside---Effect---Document produced as "mark" by the party---Evidentiary value---Provisions of Qanun-e-Shahadat and Civil Procedure Code, applicability of---Ex-parte proceedings were conducted against the tenant and landlord submitted affidavit-in-evidence and copy of lease agreement was produced in the statement of his counsel---Tenant thereafter moved application for setting aside ex-parte proceedings and same was accepted---Rent Controller framed issue with regard to relationship of landlord and tenant between the parties and while relying upon the documents produced by the landlord prior to setting aside of ex-parte proceedings allowed eviction petition---Validity---Landlord was bound to prove that relationship of landlord and tenant existed between the parties---Once Rent Controller had framed issue and placed burden of proof on a party then he could not absolve such party from such burden---Parties were expected to lead evidence in accordance with the onus placed at the time of framing of issues---Landlord had not applied for the amendment of issue so that onus of proof could be placed on the tenant---Mere fact that tenant had not been able to prove that he was owner of demised premises was not sufficient to accept eviction petition---Landlord should have proved that tenant was bound to pay rent as a consideration for possession of demised premises through rent receipts or witnesses in support of eviction petition---Tenant had filed a suit for specific performance of agreement to sell during pendency of the ejectment petition---Mere fact that tenant had filed a suit for specific performance could not be a valid ground for allowing him to remain in possession on the demised premises---Agreement to sell neither created nor purported to create any right or interest in such property nor it transferred ownership to the vendee---Agreement to sell was not a title document and could not be treated as an alienation---Unless and until suit for specific performance was decreed, tenant could not claim to have become owner of suit premises---Civil Court was to determine whether or not tenant had purchased the demised premises---Ejectment proceedings could not be stayed or stalled on the plea that tenant was holding an agreement to sell---Courts below had relied upon the copy of lease agreement produced by the counsel of landlord before setting aside of ex-parte proceedings---Documents produced by the counsel of landlord prior to setting aside of ex-parte proceedings were not resubmitted in evidence---Courts below had erred by not appreciating that evidence produced prior to the ex-parte proceedings having been set aside was liable to be discarded---Nothing was on record as to why lease agreement was not produced by the landlord with eviction petition or affidavit-in-evidence---Copy of lease agreement was not tendered in evidence---Tenant had denied the relationship of landlord and tenant and had submitted that lease agreement was fake and bogus---Landlord should have produced original lease agreement to prove relationship of landlord and tenant, in circumstances---Landlord had not produced the marginal witnesses of lease agreement to prove its execution---Proceedings before Rent Controller were in the nature of an inquiry and provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the said proceedings---Relationship of landlord and tenant had been denied by the tenant and sole basis of eviction was a copy of rent agreement---Original lease agreement had not been produced in evidence, without a plausible explanation for not producing the same---Rent Controller while setting aside ex-parte proceedings had not saved the evidence produced by the landlord or document submitted by his counsel---Nothing was on record that landlord had relied upon the documents having earlier been produced by his counsel---Proceedings taken from the stage of non-appearance of a party would become ineffective upon setting aside the same---Ex-parte evidence recorded after passing the order to proceed ex-parte was liable to be discarded and proceedings should have been taken afresh in presence of tenant, in circumstances---Court could not form its opinion on the material which was not legal and reliable evidence---Landlord's ex-parte evidence and the documents produced by his counsel could not bind the tenant after setting aside of the ex-parte proceedings---Copy of lease agreement produced by landlord's counsel prior to ex-parte proceedings having been set aside could not be termed as legal evidence---Courts below had misread the evidence and committed jurisdictional irregularity by holding that there existed relationship of landlord and tenant on the basis of copy of lease agreement produced by the landlord's counsel prior to setting aside of ex-parte proceedings---Photocopy of a document having been produced as "marked" had no evidentiary value---Agreement for letting out a building or land was to be in writing---Landlord had failed to discharge the onus of proving relationship of landlord and tenant as he had not exhibited the rent agreement allegedly executed between the parties---Rent Controller in absence of relationship of landlord and tenant had no jurisdiction to proceed with the matter and owner of the property had other remedies to seek eviction of an illegal occupant---Impugned orders passed by the Courts below were set aside and matter was remanded to the Rent Controller for decision afresh---Constitutional petition was allowed accordingly.

Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain 2016 SCMR 2186; Kamran Butt v. Lt.-Col. Syed Iftikhar Ahmad PLD 1991 Kar. 417; Ghulam Hussain v. Noor Shah Ali 1994 MLD 36; Mst. Nasira Afridi v. Muhammad Akbar 2015 MLD 171; Abdul Haque v. The State PLD 1996 SC 1; Mst. Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089; M. Ibrahim v. Fateh Ali 2005 SCMR 1061; Shah Muhammad v. Atta Muhammad 2005 SCMR 969; Iqbal v. Rabia Bibi PLD 1991 SC 242; Jumma Khan v. Zarin Khan PLD 1999 SC 1101; Barkat Masih v. Manzoor Ahmad 2006 SCMR 1068; Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320; Gohar Ali Shah v. Shahzada Alam 2000 MLD 82; Muhammad Akmal v. Faisal Saeed Mirza 2004 CLC 862; Muhammad Parvez v. Additional Rent Controller, Lahore 2013 YLR 1881; Refhat Hamidee v. Abdul Aziz 2013 YLR 1898; Muhammad Rafique v. Farida Khan 2016 CLC 1451; Mst. Nasira Afridi v. Muhammad Akbar 2015 MLD 171; Muhammad Nawaz v. Shahida Parveen PLD 2017 Isl. 375; Raza Muhammad and others v. Jumma Khan 1991 MLD 261; Sohaj Khan and others v. Registrar District Court Jhelum 1988 CLC 973; Mst. Lakshmi Devi v. Roongta AIR 1962 Allahabad 381; Phani Bhusan Mukherjee v. Phani Bhusan Mukherjee AIR 1957 Calcutta 170; Selvarayan Samson v. Amalorpavanadam AIR 1928 Madras 969; State Life Insurance Corporation of Pakistan v. Javaid Iqbal 2011 SCMR 1013; Mst. Roshan Bi v. Munawar Hussain Gill 1987 MLD 3263 and Hafeezuddin v. Badaruddin PLD 2003 Kar. 444 and Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 rel.

Sheikh Azfar Amin for Petitioner.

Ahmad Nawaz Bhatti for Respondents Nos.1(i) to 1(iv).

YLR 2020 ISLAMABAD 2306 #

2020 Y L R 2306

[Islamabad]

Before Athar Minallah, C.J.

and Miangul Hassan Aurangzeb, J

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION---Appellant

Versus

JAVAID IQBAL and others---Respondents

F.A.O. No. 44 of 2012, decided on 10th October, 2019.

Arbitration Act (X of 1940)---

----Ss. 17 & 30---Arbitration award---Application for making award as rule of Court---Objections--- Default in payment of instalments---Expression "delay for some unavoidable/unforeseen circumstances"--- Scope--- Federal Government Employees Housing Foundation launched a Housing Scheme and it was provided in the brochure that possession of apartments would be delivered to the allottees within a period of two years and cost of apartments would be subject to variations on account of escalation in prices and unforeseen circumstances---Housing Foundation could not complete apartments within a period of two years and issued letters for payment of additional amount for the apartments---Petitioners filed constitutional petitions and matter was referred for arbitration with the consent of the parties---Objections against award were dismissed and it was made rule of the Court---Validity---Petitioners-allottees had defaulted in making payments of instalments---Delay in construction caused due to default in payment of instalments by the allottees, such allottees were not entitled to any compensation---Default in payment of instalments by the allottees did come within the meaning of a "delay for some unavoidable/unforeseen circumstances"---Arbitrator had termed escalated costs mentioned in the brochure as highly excessive which was not in dispute between the parties---Housing Foundation was to charge actual costs of the apartments from the allottees and same could not be compared with the costs incurred by the other organizations establishing housing projects---Each Housing Scheme had its own peculiar features and dimensions and the costs incurred by all Housing Schemes could not be identical---Determination as to escalated costs demanded by the Housing Foundation to be highly excessive on the basis of costs incurred on the Housing Scheme by the other organization was erroneous and perverse---Costs of apartments given in the brochure and allotment letters were not final but tentative in nature and were subject to variations---Petitioners were bound by the terms and conditions mentioned in the brochure which made an increase in the costs of apartments permissible---Rights and liabilities of the parties were to be determined in the light of terms and conditions of agreement containing arbitration clause---Costs of apartments was to be finally determined and charged from the allottees on the basis of "actual expenditure" incurred on completion of apartments which was to be communicated to the allottees in due course---Housing Foundation had communicated enhanced costs of the apartments to the allottees which was not a profit making organization---Escalation in the costs of construction material and other factors had not been considered in the present matter---Terms of brochure did not provide for compensation or liquidated damages to be paid to the allottees if apartments were not completed within a specific period---Delay in completion of project was attributable to the defaulting petitioners-allottees and they were not entitled for compensation for the delay to handover possession of apartments---Housing-Foundation was justified in raising a demand for additional amount and surcharge on the delay in the payment of instalments from the allottees---Mere fact that surcharge had been waived by the Foundation for one of the allottees would not nullify the provision with regard to imposition of a surcharge in the brochure---Court while making award as a rule of Court was not required to act mechanically even if no objection was filed---Impugned judgment and decree as well as award were set aside---Appeal was allowed accordingly.

Pak Gulf Construction Private Limited v. Abdul Hamid Baig 2019 MLD 1178; Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited 1997 CLC 302; Haji Abdul Rashid Arif v. Aziz Rehman 2010 CLC 1014; National Logistic Cell (NLC) through General Manager Administration 2010 YLR 1448 and Rashida Begum v. Chaudhry Muhammad Anwar PLD 2003 Lah. 522 rel.

Raja Niaz Ahmad Rathore for Appellant.

Fiaz Ahmed Jandran for Respondents.

YLR 2020 ISLAMABAD 2356 #

2020 Y L R 2356

[Islamabad]

Before Athar Minallah, C.J. and Aamer Farooq, J

MATLOOB HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 83, P.S.L.A. No.4 and Criminal Revision No.44 of 2016, decided on 12th May, 2020.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Motive, failure to prove---Chance witness, evidence of---Motive for commission of offence was transfer of land by father of deceased to latter's male siblings---Prosecution failed in bringing on record any cogent and reliable evidence in order to prove the motive---Out of two eyewitnesses one was given up by prosecution on evasive ground of not being relevant---Both eyewitnesses were nephews of the complainant---Testimony of eye-witness who was produced by prosecution could not be relied upon because no justifiable reasons were shown by prosecution for his presence at the time of commission of the offence---Deposition of eye-witness was not trustworthy for upholding conviction of accused---High Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Mst. Sugra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Mst. Anar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1719 ref.

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

----S. 342---Statement of accused---Principle---Such statement of accused is either to be discarded as a whole or accepted in its entirety.

Wajahat Ahmed and others v. The State and others 2016 SCMR 2073; Abdur Rehman alias Boota and another v. The State and another 2011 SCMR 34; Muhammad Asghar v. The State PLD 2008 SC 513; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 and Ali Ahmad and another v. The State and others PLD 2020 SC 201 rel.

Basharat Ullah Khan for Appellant (in Criminal Appeal No.83 and P.S.L.A. No.4 of 2016 and for Respondent in Criminal Revision No.44 of 2016).

Talat Mehmood Zaidi for the Complainant/Respondent (in Criminal Appeal No.83 and P.S.L.A. No.4 of 2016 and for Petitioner in Criminal Revision No.44 of 2016).

M. Atif Khokhar, State Counsel.

M. Ishaq Khan, S.I.

YLR 2020 ISLAMABAD 2476 #

2020 Y L R 2476

[Islamabad]

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

MUHAMMAD RASHID and another---Appellants

Versus

The STATE---Respondent

Jail Appeals Nos. 101, 102 and Murder Reference No. 5 of 2017, decided on 04th May, 2020.

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

----S.302(b)---Qatl-i-Amd--- Appreciation of evidence---Benefit of doubt---Nature of injuries---Proof---Deceased was shot from a close distance and the same was not supported by medical evidence---Un-scaled or scaled plan did not refer to any brick having been removed from wall---Evidence did not explain existence of seven empties because autopsy report confirmed three entry wounds---Draftsman did not observe any mark of gun shot on walls of small uninhabited room---Investigating officer also did not see signs of any brick removed from the wall---Investigating officer did not explain as to how the complainant received information about involvement of accused persons---Draftsman did not show any source of light---Police received information that one dead body was lying in an uninhabited room i.e. the crime scene---No explanation was available on record as to how and by whom the dead body was discovered lying at the crime scene---Motive was not proved by prosecution and reference of witnesses to the relationship between accused persons could not be relied upon---High Court set aside conviction and sentence awarded to accused by extending him benefit of doubt and acquitted him of the charge---Appeal was allowed in circumstances.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872; Shehzado v. The State PLD 2005 SC 477; Nasir Mehmood and another v. State 2015 SCMR 423, Majeed v. The State 2010 SCMR 55; Hassan Askari v. The State 2011 PCr.LJ 778; Dr Aziza and others v. Muhammad Sarwar 1997 MLD 2013; Nazeer alias Wazeer v. The State PLD 2007 SC 202; Hashim Qasim and another v. The State 2017 SCMR 986; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Dadullah and another v. The State 2015 SCMR 856; Allah Nawaz v. The State 2009 SCMR 736; Manjeet Singh v. The State PLD 2006 SC 30 and Muhamamd Shafi v. Muhammad Raza and another 2008 SCMR 329 ref.

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

----Ss. 164 & 342---Statement of accused---Scope---Voluntary and true statement recorded under S.164, Cr.P.C. requires no corroboration and may be sufficient for handing down a conviction--Court as a rule of precaution seek corroboration of the same on material particulars---Confessional statement is to be accepted or rejected as a whole---Statement under S.164, Cr.P.C. is considered a weak form of evidence while that recorded under S.342, Cr.P.C. is treated as more reliable---As a principle of safe administration of justice, conviction is not to be recorded on the sole basis of confession and it is inevitable for prosecution to prove its case beyond reasonable doubt--- Confessional statement recorded on oath is violative of law and it renders the same as inadmissible.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

Muhammad Aslam Ch., Jan Muhammad Khan, Akseer Ahmed Abbasi, Ms. Moona Nazir and Ms. Rakhshanda Azhar for Appellants.

Hafiz M. Atif Khokhar, State Counsel.

Syed Zia Hussain Kazmi for the Complainant.

YLR 2020 ISLAMABAD 2618 #

2020 Y L R 2618

[Islamabad]

Before Miangul Hassan Aurangzeb and Ghulam Azam Qambrani, JJ

TUFAIL ABBAS KAZMI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 284 of 2019, decided on 8th June, 2020.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4 (2)---Criminal Procedure Code (V of 1898), S. 342---Recovery of narcotic substance---Appreciation of evidence---Unexplained delay in sending samples to the Laboratory---Effect---Failure to put incriminating evidence to accused---Heroin and Charas weighing 1025 and 235 grams respectively were allegedly recovered from accused---Accused was arrested on 15-12-2017 and recovery was effected on the same date---Samples were drawn and sealed at the spot but were sent to laboratory on 20.12.2017 after unexplained delay of five days---Such exercise was to be completed within seventy two hours of the recovery as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001---Prosecution failed to explain such inordinate delay caused in completion of such exercise by Investigating Officer---Case properties i.e. heroin and Charas were not put to accused at all at the time of recording of statement of accused under S. 342, Cr.P.C., which was fatal to prosecution case---If a piece of evidence or a circumstance was not put to an accused at the time of recording of his statement under S. 342, Cr.P.C. the same could not be considered against him for the purposes of recording his conviction---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820; Ameer Zaib v. The State PLD 2012 SC 380; Qaddan and others v. The State 2017 SCMR 148 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----S. 342---Statement of accused---Object, purpose and scope---Provision of S.342, Cr.P.C. is based on maxim audi alteram partem, which means that "no one should be condemned unheard"---Where a person is to be charged with any penal liability he should be made aware of all facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him---Statement under S. 342, Cr.P.C. is either to be believed in its entirety or not at all.

S.A.K. Rehmani v. The State 2005 SCMR 364; Shabbir Ahmad v. The State PLD 1995 SC 343; Abdur Rehman alias Boota and another v. The State and another 2011 SCMR 34; Wajahat Ahmed and others v. The State and others 2016 SCMR 2073; Muhammad Asghar v. The State PLD 2008 SC 513; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139; Ali Ahmad and another v. The State and others PLD 2020 SC 201 and Haji Nawaz v. The State 2020 SCMR 687 rel.

Ch. Abdul Rehman Hur Bajwa for Appellant.

Hazrat Younas, State Counsel with Muhammad Yousaf, Sub-Inspector.

YLR 2020 ISLAMABAD 2657 #

2020 Y L R 2657

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

Mst. SAIRA---Petitioner

Versus

S.S.P., ISLAMABAD and 5 others---Respondents

Writ Petition No. 1648 of 2020, decided on 24th June, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---First Information Report non-registering of---Alternate remedy---Petitioner invoked Constitutional Jurisdiction of High Court seeking direction to register a criminal case---Validity---Remedy was available to petitioner to approach the forum of Ex-Officio Justice of Peace, instead of moving High Court directly---Assuming of jurisdiction by High Court not legally warranted would amount to abridge wisdom and intention of Legislature---For availing remedy before High Court in terms of Art. 199 of the Constitution, there was a mandatory requirement for petitioner to show that there was no alternate efficacious and adequate remedy---When remedy by way of an application under S. 22-A(6), Cr.P.C. was available, which was not only efficacious but adequate as well, then Constitutional petition was not maintainable---Constitutional petition was dismissed in circumstances.

NLR 2006 (sic) 79 ref.

Malik Khalid Mehmood v. Inspector General of Police Punjab and others 2002 PCr.LJ 1613; Fida Hussain v. The State 1975 SCMR 150 and Abdul Wahid Khan v. Government of the Punjab and others PLD 1989 SC 508 rel.

Karachi High Court Sindh

YLR 2020 KARACHI HIGH COURT SINDH 1 #

2020 Y L R 1

[Sindh]

Before Nazar Akbar, J

Syed MUHAMMAD AHSAN---Appellant

Versus

MUNAWAR ALI NAQVI and 15 others---Respondents

Criminal Acquittal Appeal No. 89 of 2015, decided on 17th July, 2019.

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

----Ss. 3, 5 & 7---Criminal Procedure Code (V of 1898), Ss. 265-H & 417(2A)---Appeal against acquittal--- Appreciation of evidence--- Illegal dispossession---Declaration to title---Proof---Appellant was complainant and was aggrieved of dispossession from subject property by accused persons---Trial Court under S. 265-H(i), Cr.P.C. acquitted accused persons---Validity---Law of land and even Shia Personal Law did not authorize Momineen of any locality to request anyone amongst themselves to unlawfully control or occupy immovable property of an orphanage owned by some registered private institution with intention to dispossess, grab, control or occupy said property and dispossess otherwise lawful occupiers of such property---Accused persons, despite backing of so-called religious scholars and their goodwill in community were conscious of fact that they had no moral authority or legal defense to justify taking over possession of subject property and grab and control of resources of private institution---Accused persons never filed any civil suit to seek declaration of their title in respect of subject property as they knew that their so-called working committee was not even fraudulently registered---High Court set aside judgment of acquittal passed by Trial Court and convicted accused persons under S. 3(2) of Illegal Dispossession Act, 2005 along with fine---Appeal was allowed accordingly.

2010 YLR 2139; Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066; PLD 1989 SC 283; PLD 1971 SC 550; 2012 CLC 793; Shahabuddin v. The State PLD 2010 SC 725; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; 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 ref.

(b) Illegal Dispossession Act (X1 of 2005)---

----S. 3---Illegal dispossession---Abandoned property---Principle---Even abandoned property is supposed to be in constructive possession of its lawful owner---If at all there is any defect in status of owner to hold, occupy and control subject property of private institution, accused are not supposed to contravene S. 3(1) of Illegal Dispossession Act, 2005. (c) Illegal Dispossession Act (X1 of 2005)---

----Ss. 3 & 5---Civil Procedure Code (V of 1908), S. 92---Illegal dispossession---Criminal and civil liabilities---Determination---Accused persons cannot contend that complainant has no lawful authority to file legal proceedings in view of S. 92, C.P.C. when raised before a court seized of a criminal case---Proceedings under Criminal Procedure Code, 1898 cannot be regulated by Civil Procedure Code, 1908.

Zafar Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Bashir Ahmed v. Additional Sessions Judge PLD 2010 SC 661 ref.

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

----S. 3(1) & (2)---Criminal Procedure Code (V of 1898), S. 403(4)---Illegal dispossession--- Proceedings--- Other offences---Scope---Remedy for aggrieved party affected by other offences committed by same party who has contravened S. 3(1) of Illegal Dispossession Act, 2005 is also provided in S. 3(2) of Illegal Dispossession Act, 2005---When an offence in respect of moveable property or any other offence is also committed during course of an offence punishable under S. 3(2) of Illegal Dispossession Act, 2005, then for such other offence, accused can be charged and tried separately---Accused even after conviction can be tried for other offences---Such trial is protected by S. 403(4), Cr.P.C.

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

----S. 3---Dispossession of trust from property---Dispossession of trust is dispossession of all trustees/members.

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

----S. 8---Criminal Procedure Code (V of 1898), S. 561-A---Illegal dispossession---Restoration of possession---Inherent powers of High Court---Scope---When court has to pass order for restoration of possession of subject property to owner or occupier and such orders have to be given effect, then in given circumstances of case, court has to exercise inherent powers under S. 561-A, Cr.P.C. to secure ends of justice.

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

----Ss. 3 & 5---Criminal Procedure Code (V of 1898), Ss. 87 & 512---Illegal dispossession---Absconding accused, acquittal of---Effect---Appellant was complainant and was aggrieved of dispossession from subject property by accused persons---Trial Court while acquitting accused persons facing trial also acquitted absconders of law---Validity---Trial Court acquitted absconders without realizing that once court had declared an accused absconder, his case was supposed to be separated from case of other accused facing trial---High Court set aside order of acquittal of absconding accused and remanded case to Trial Court for proceedings in accordance with law---Appeal was allowed accordingly.

(h) Criminal trial---

----Absconder---Trial---Procedure--- When court had declared an accused absconder, his case was supposed to be separated from case of other accused.

Appellant in person.

Syed Tasawur Hussain Rizvi for Respondents Nos. 1, 4, 5, 6, 7, 8, 12, 13 and 14.

Syed Haider Imam Rizvi for Respondents Nos.9 and 10.

Ms. Rahat Ahsan, Additional P.G. for Respondent No. 16.

YLR 2020 KARACHI HIGH COURT SINDH 61 #

2020 Y L R 61

[Sindh]

Before Salahuddin Panhwar, J

SAEED MAZHAR ALI---Appellant

Versus

Mrs. AROOSA MUBASHIR through Attorney and another---Respondents

First Rent Appeal No. 2 of 2018, decided on 22nd March, 2018.

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

----Ss. 6, 17, 24 & 30---General Clauses Act (X of 1897), S. 6(e)---Constitution of Pakistan, Art. 175(3)---Eviction of tenant---Inherent jurisdiction of High Court---Scope---Tenant had stopped paying the monthly rent to the landlord claiming that he had entered into agreement to sell regarding demised property with the landlord---Appellant/ tenant challenged the competency of the Additional Cantonment Executive Officer as Rent Controller before High Court claiming that no notification was issued for his appointment as Rent Controller---Validity--- Question of inherent jurisdiction, normally a pure question of law, could be raised at any stage and non-raising thereof before the lowest forum (waiver) would not be sufficient for ousting the jurisdiction of appellate forum from examining the same---Challenge to inherent jurisdiction would never earn status of 'new plea' which normally was not permissible to be taken at later stages---Section 6 of Cantonments Rent Restriction Act, 1963 stipulated that appointment of Rent Controller required only issuance of notification which, however, had not been made subject to 'consultation of Chief Justice' rather the absolute competence had been vested with the Federal Government to appoint a person as Rent Controller or Additional Rent Controller by issuing notification in official gazette---Court could not add or delete anything in or out of a provision---Scope of interpretation was to make a bona fide attempt to unfold ambiguous words or phrases without disturbing the object and intention of the Legislature rather legally every attempt even while interpreting such ambiguous thing, the intention and object of the legislation had to be protected---Section 6 of Cantonments Rent Restriction Act, 1963 itself had given absolute and exclusive jurisdiction to the Federal Government to 'appoint' a person as Rent Controller or Additional Rent Controller which had not been limited to any condition including that such person could not be a public servant rather such appointed person had been clothed as public servant under S.30 of Cantonments Rent Restriction Act, 1963---Issuance of notification by Federal Government thereby declaring any person as Rent Controller or Additional Rent Controller would be sufficient compliance of S. 6 of Cantonments Rent Restriction Act, 1963 and such person would stand designated as such even if same was ex-officio---Legally issued notification would continue holding the field unless otherwise so expressly intended---Notification prima facie was not subject to any time limitation nor there was placed anything on record that said notification was either recalled or cancelled etc.---High Court under its constitutional jurisdiction could declare any law or custom or usage having the force of law as void---High Court observed that proceedings were rightly entertained and decided by the Additional Rent Controller as subject matter undisputedly fell within the area of the Cantonment---Appellant, in the present case, admitted his entry into subject property as tenant but later claimed to have purchased the same through an agreement to sell---Appellant admittedly, had stopped paying the monthly rent in wake of his undermined status of purchaser which act alone was sufficient for his eviction---No illegality or infirmity having been noticed in the impugned order passed by the Rent Controller, appeal was dismissed accordingly.

Jan Muhammad and other's case PLD 2017 SC 158; Khan Gul Khan v. Daraz Khan 2010 SCMR 539; Lanvin Traders Karachi v. Presiding Officer Banking 2013 SCMR 1419; Mumtaz Hussain v. Nasir Khan 2010 SCMR 1254; Ghulam Haider v. Farooq Ahmed Bhatti PLD 1983 SC 238; Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others 2006 SCMR 145; Nasir Mehmood v. Khawar Hussain and 5 others 2014 CLC 832; Habib Masih and another's case 2003 YLR 1245; Zaheer Arshad v. Federation of Pakistan PLD 2018 Lah. 19; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 and Muhammad Nisar v. Izhar Ahmed Sheikh and others PLD 2014 SC 347 ref.

(b) Interpretation of statutes---

----Scope---Court could not add or delete anything in or out of a provision---Scope of interpretation was to make a bona fide attempt to unfold ambiguous words or phrases without disturbing the object and intention of the Legislature rather legally every attempt even while interpreting such ambiguous thing, the intention and object of the legislation had to be protected.

Khawaja Shamsul Islam for Appellant.

Amel Khan Kasi for Respondent No.1.

YLR 2020 KARACHI HIGH COURT SINDH 116 #

2020 Y L R 116

[Sindh (Sukkur Bench)]

Before Nazar Akbar, J

GULZAR ALI---Applicant

Versus

PROVINCE OF SINDH through Secretary, Board of Revenue and 5 others---Respondents

Civil Revision No.11 of 2010, decided on 4th October, 2019.

Limitation---

----Limitation being a question of law, once it was raised it was duty of the court to decided same.

Commissioner of Income Tax, Zone B, Peshawar v. Zabeel Palace Hotel, Peshawar 2011 SCMR 361 and Federation of Pakistan through Secretary, Ministry of National Food Security and Research, Islamabad v. Agritech Limited and others PLD 2016 SC 676 ref.

Muhammad Aqil and Nazir Ahmed Junejo for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 132 #

2020 Y L R 132

[Sindh (Sukkur Bench)]

Before Muhammad Shafi Siddiqui, J

JAM SAIFULLAH KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN ('ECP') through Secretary and 17 others---Respondents

Election Petition No. S-19 of 2018, decided on 24th April, 2019.

Elections Act (XXXIII of 2017)---

----Ss. 90 & 158---Qanun-e-Shahadat (10 of 1984), Art. 80---Comparison of signatures on Form-45---Elections Tribunal could declare the election as a whole to be void if it was satisfied that the result of election had been materially affected by failure to comply with the provisions of Elections Act, 2017 or the Rules in connivance with the returned candidate or prevalence of extensive corrupt or illegal practice at the elections---Connivance did not need to be specific and/or apparent and it could be implied, disguised and hidden---Once a person was able to prove the violation of S. 90 of Elections Act, 2017 then connivance might not be difficult to be unveiled---Scrutiny could not be refused on the ground that the petitioner was required to prove the connivance first---Petitioner could be afforded a fair opportunity to prove and discharge the burden that the statute had required---If the provisions of Elections Act, 2017 and Rules framed thereunder had not been complied then scrutiny was inevitable as first step and then to determine as to what extent such non-compliance either unilaterally or in connivance with the office holder/returned candidate had materially affected the result of elections---Elections Commission was directed to submit original Form-45 to National Forensic Science Agency for a forensic examination of signatures, handwriting and thumb impressions of Presiding Officers and/or Assistant Presiding Officers---Petition for comparison of signatures on Form-45 was accepted in circumstances.

Qaisar Ifraheem Saroya v. Returning Officer and 2 others 1995 CLC 917 and Syed Mukhtar Hussain Shah v. Wasim Sajjad and others PLD 1986 SC 178 ref.

Sardar Abdul Hafeez Khan v. Sardar Tahir Khan Loni and 13 others 1999 SCMR 284; Feroze Ahmed Jamali v. Masroor Ahmed Khan Jatoi 2016 SCMR 750; Irfanullah Khan Marwat v. M. Abdul Rauf Siddiqui 2017 SCMR 1588 and Aijaz Hussain Jakhrani v. Illahi Bux Soomro and 16 others PLD 2014 Kar. 90 rel.

Salahuddin Ahmed assisted by Sheikh Arsalan for Petitioner.

Abdul Sattar Pirzada assisted by Mamoon N. Chaudhry and Deedar Ali M. Chohan for Respondent No.3.

Irfan Ahmed Memon, Deputy Attorney General for Respondents.

Shahryar Imdad Awan, Assistant Advocate General Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 147 #

2020 Y L R 147

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Omar Sial, J

SALIK AZIZ---Petitioner

Versus

MUHAMMAD EMAD and others---Respondents

Constitutional Petition No. D-3615 of 2017, decided on 20th February, 2019.

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

----S. 440---Power to call for record of inferior courts---Option with court to hear parties---Death of petitioner---Right of legal heirs to be heard---Scope---Petitioner's application seeking permission to pursue the criminal revision application filed by her deceased mother was dismissed---Validity---Revision application, competently filed and entertained, could not be rejected as abated on account of death of applicant whether complainant or accused---Section 440, Cr.P.C. provided that no party had any right to be heard either personally or by pleader, Court, when exercising its power of revision, if it deemed fit, hear any party either personally or through pleader---No right was created for parties in revision applications but the court for ends of justice could hear the parties concerned or those interested in the matter or even any other person if it considered that he would be assisting the court in coming to a just and correct decision---Application filed by deceased's legal heir was erroneously discarded---Once the court had issued process and entertained the revision application, it was enjoined upon the Court to dispose of the same on merits while the legal heirs could only invite attention of the court towards illegality or impropriety, if any, in the judgment of Trial Court---Constitutional petition was converted into a miscellaneous application and was allowed.

(b) Words and phrases---

----"Crime"---Meaning---Crime is said to be an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.

Vol. 9 of Halsbury's Laws of England, at page 232 ref.

----Criminal liability of legal heirs---Scope---Legal heirs of accused cannot be subjected to substantive sentence, being contrary to basic tenets of criminal jurisprudence.

(d) Administration of justice---

----Justice should not only be done but must be seen that the people should feel that justice is being done.

Ms. Naila Tabassum for Petitioner.

Farhan Zia Abrar for Private Respondents Nos. 1 and 2.

Khadim Hussain, Additional Prosecutor General, Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 153 #

2020 Y L R 153

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

ALAMGIR---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 3 and 4 of 2018, decided on 6th February, 2019.

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

----S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Qanun-e-Shahadat (10 of 1984), Art. 40---Act of terrorism, possession of unlicensed arms, keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances, proof of information received from accused---Appreciation of evidence---Corroboration of evidence---Testimony of police officials--- Scope--- Prosecution case against accused was that he, during the course of investigation in another case had disclosed that he had concealed huge quantity of arms, ammunition and explosive material in a grave---Accused voluntarily led the police party to the graveyard and pointed out the grave---Police, during the digging of the grave, recovered arms, ammunition and explosive material---Mashirnama of recovery was prepared in the presence of mashirs, which was signed by both the mashirs---Mashirs had fully supported the version of the complainant and one of them had denied the assertion that the mashirnama was prepared at police station---Official of Bomb Disposal Unit had also corroborated the prosecution case and had admitted during cross-examination that the entire arms, ammunition and explosive material was recovered from one graveyard---No proof of enmity between the complainant and the prosecution witnesses was brought on record---Reports of Bomb Disposal Unit and Forensic Science Laboratory regarding arms, ammunition and explosive substance were sufficient to prove that they could be used for demolishing the law and order situation and creating a sense of insecurity, fear and terrorism in public-at-large---Prosecution had succeeded in bringing the guilt of accused at home and had proved its case against the accused beyond any shadow of doubt---Appeals were dismissed.

Askar Jan v. Muhammad Daud 2010 SCMR 1604 rel.

(b) Criminal trial---

----Witness---Testimony of police officials---Scope---Police official, being prosecution witness, by itself cannot be considered as a valid reason to discard his statement---Mere status as a police official alone does not prejudice the competence of such witness until and unless he is proved to be interested, who has a motive to falsely implicate an accused or has previous enmity with the person involved.

Ajab Khan Khattak for Appellant.

Saghir Ahmed Abbasi, Assistant Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 192 #

2020 Y L R 192

[Sindh]

Before Nadeem Akhtar, J

ZAHID KHAN---Petitioner

Versus

Mst. RAZIA KHATOON and another---Respondents

Constitutional Petition No. S-908 of 2019, decided on 5th September, 2019.

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

----Ss. 15 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment of tenant---Deposit of time barred rent---Effect---Rent Controller passed order for deposit of arrears of rent for a period exceeding three years---Validity---Time barred rent/debt could neither be claimed nor could it be granted---Rent Controller had no power to direct the tenant to deposit arrears of monthly rent for a period exceeding three years---Constitutional petition was maintainable as impugned order was without jurisdiction---Interim order passed in such proceedings could not be called in question under constitutional jurisdiction unless same was without jurisdiction or in excess of jurisdiction---Impugned order was declared to be illegal and tenant was directed to deposit arrears of monthly rent from the date of filing of ejectment petition--- Constitutional petition was disposed of, in circumstances.

Abdul Hameed and others v. Haji Muhammad Javed 1999 MLD 3031 ref.

Noor Hussain v. Pakistan Steel 1990 CLC 804; Ahsan Asad v. Mrs. Rubina Naeem 2016 MLD 86 and Mst. Zarina Khan v. Mst. Farzana Shoaib 2017 SCMR 330 rel.

Muhammad Arif Sheikh for Petitioner.

Muhammad Mushtaq Qadri for Respondent No.1.

Xth Rent Controller Karachi Central for Respondent No.2.

YLR 2020 KARACHI HIGH COURT SINDH 238 #

2020 Y L R 238

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

HABIB AHMED---Appellant

Versus

The STATE ---Respondent

Criminal Jail Appeal No.319 and Confirmation Case No. 7 of 2016, decided on 30th April, 2019.

(a) Criminal trial---

----Confession--- Retracted judicial confession could be legally admissible and used against its maker in certain circumstance.

Muhammad Amin v. The State PLD 2006 SC 219 rel.

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

----Ss. 302, 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence---Appreciation of evidence---Benefit of doubt---Confessional statement before Judicial Magistrate, retraction of---Scope---Accused was charged for committing murder---Accused had retracted confession and had stated in his S.342, Cr.P.C., statement that in fact the confession was not recorded in his presence and that the police obtained his thumb impression on plain paper---Accused was an illiterate man and as such could not read or write English or Urdu---Said fact was relevant because his confessional statement was not recorded in Urdu, a language which he could understand, but in English, which he could not understand---No evidence was available to show that statement of accused recorded in English was read back to him in Urdu---Accused was produced before the Magistrate twice on remand in police custody and did not volunteer to make confession---Record showed that there was an unexplained delay of eight days in recording confession of accused after his arrest during which time he remained in police custody---Accused was also not warned that if he failed to make a confession he would not be taken back into police custody---Accused claimed that he was maltreated in police custody---Confession was not conducted strictly in accordance with the law, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Pervez and others v. The State 2007 SCMR 670; Wahab Ali and others v. The State 2010 PCr.LJ 157; Nasir Mehmood and another v. The State 2015 SCMR 423; Faiz Ahmed and others v. The State 2003 PCr.LJ 1420; Ulfat Hussain v. The State 2018 SCMR 313; Hayatullah v. The State 2018 SCMR 2092; Ghulam Abbas v. The State 2008 YLR 1104; Muhammad Zaman v. The State and others 2014 SCMR 749; Rohtas Khan v. The State 2010 SCMR 566; Riaz Ahmed v. The State 2010 SCMR 846; Muhammad Shah v. The State 2010 SCMR 1009; Altaf Hussain v. The State 2019 SCMR 274; Muhammad Khalil v. Messrs Faisal M.B Corporation and others 2019 SCMR 321; Fayyaz Ahmed v. The State 2017 SCMR 2026; Sabir Ali v. The State 2011 SCMR 629; Mah Gul v. The State 2009 SCMR 4; Mahmood Khan v. The State 2002 PCr.LJ 1402; Zameer alias Shabeer v. The State 2000 MLD 1561; Muhammad Shahbaz v. The State 2005 PCr.LJ 241, Majeed v. The State 2010 SCMR 55; Muhammad Akram v. The State 2006 SCMR 1567; Mst. Askar Jan Vs. Muhammad Daud and 3 others 2010 SCMR 1604; Shiraz Tufail v. The State 2007 SCMR 518; Dr. Javaid Akhtar v. The State PLD 2007 SC 249 and Shaikh Muhammad Amjad v. The State PLD 2003 SC 704 ref.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

----Ss. 302, 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence--- Reliance--- Scope---In the present case, weapon of offence, churri, was recovered on the pointation of accused---Record was silent as to why accused did not take the police to recover churri at the same time when it was in the bushes nearby---Said conduct particularly did not appeal to logic, common sense or reason---High Court observed that accused did not say as to how he murdered the deceased and what was the weapon of offence and as such said churri could have been foisted upon him especially as one prosecution witness, who was present when the churri was recovered, stated that it was a dagger and not a churri---After confirming that he knew the difference between the two whilst the Investigating Officer who recovered the churri stated that the recovered weapon was not a dagger but a churri---Postmortem report did not make any finding as to whether the incised wounds were caused by knife or any other weapon so in this respect corroboration as to the churri or a dagger causing the death of the deceased was not found in the postmortem report---Churri was not sent to the Chemical Examiner for analysis---Little weight could be attached to the recovery of the churri on the pointation of the accused in respect of corroborating the judicial confession.

Mst. Askar Jan and others v. The State 2010 SCMR 1604 rel.

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

----Ss. 302, 365 & 201---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence---Appreciation of evidence---Benefit of doubt---Identification of dead body of the deceased---Scope---In the present case, according to Medical Officer, who carried out the postmortem of the body after its exhumation, the features were not identifiable---Record showed that it also appeared from the evidence of Medical Officer that three teeth were taken from the body of the deceased for DNA examination in order to conclusively prove the identity of the deceased---Complainant in the case, who was present at the time of exhumation claimed in his evidence to have recognized the dead body of the deceased---Keeping in view the fact that the features of the dead body were not identifiable as opined by Medical Officer that he had sent the teeth for DNA examination, the identification of the body by the complainant could not be safely relied upon as absolutely correct especially as no DNA report was exhibited of the teeth to prove that the body was that of the deceased---Complainant was also brother of the deceased and was, therefore, a related and interested witness who also seemed to be a partisan witness and as such could not be safely relied on---Circumstances established that the complainant had not been truthful in respect of at least some aspects of his evidence and as such the entirety of his evidence was excluded from consideration under the rule of falsus in uno, falsus in omnibus---Identification of the body as being that of the deceased had not been absolutely proven by the prosecution. (e) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to prove its case beyond a reasonable doubt---Any doubt must go to the benefit of the accused.

Abdul Jabbar v. State 2019 SCMR 129 rel.

Abdul Razzaq for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 284 #

2020 Y L R 284

[Sindh]

Before Zafar Ahmed Rajput, J

LARAIB BUILDERS through Duly Constituted Attorney---Applicant

Versus

MUHAMMAD MASROOR KHAN and 2 others---Respondents

Civil Revision Application No. 12 of 2012, decided on 7th March, 2019.

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope---Powers of High Court in revisional jurisdiction were limited---Concurrent findings on question of facts recorded by the Courts below on proper appraisal of evidence could not be interfered with in exercise of revisional jurisdiction by the High Court---If Courts below had misread evidence on record or had committed any jurisdictional error or any material irregularity and illegality then High Court could pass order according to law.

Muhammad Aslam Khan and another v. Government of N.W.F.P. through Secretary, Food and Agriculture. Peshawar and 3 others 1989 CLC 2034; Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609; Mubarik Ali through L.Rs v. Amroo Khan through L.Rs 2007 SCMR 1714; Muhammad Aslam and 2 others v. Amir Muhammad Khan and others 2003 YLR 1870; Manzoor Ahmad v. Haji Hashmat Ali through legal heirs 2000 CLC 419 and Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others 1994 MLD 1747 distinguished.

Azizuddin Qureshi for Applicant.

Chaudhry Muhammad Yasin Gujjar for Respondent No. 1.

Nemo for Respondent No. 2.

Nemo for Respondent No. 3.

YLR 2020 KARACHI HIGH COURT SINDH 294 #

2020 Y L R 294

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Messrs PAKISTAN STEEL MILLS CORPORATION through Chairman---Applicant

Versus

Major (Rtd.) GULZAR HUSSAIN---Respondent

Civil Revision Application No. 249 of 2011, decided on 29th June, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.IX, R.7---Suit for recovery of arrears of utility bills and rent due---Deliberate avoidence contest proceedings by defendant---Abuse of law---Defendant did not appear after service of notices through all modes including publication and suit was dismissed ex parte---Defendant filed application for setting aside of ex parte order on the ground that the plaintiff had given his wrong address---Said application was dismissed and no appeal was filed there against, the ex parte order thus attained finality---Defendant, after ten months, filed application under O.IX, R.7, C.P.C., for setting aside of ex parte order with contention that he was not residing at the address provided by plaintiff---Said application was also dismissed, however, appeal there against was allowed and ex parte order was set aside with the direction to the Trial Court to provide equal opportunities to the parties---Defendant, even avoided the proceeding of revision before the High Court---Held, defendant deliberately did not contest the proceedings to avoid payment of dues of the plaintiff company---Conduct of defendant was abuse of law which could not be allowed---Order of appellate court was set aside.

Mirza Muhammad Taqi for Applicant.

Nemo for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 313 #

2020 Y L R 313

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

HABIBULLAH

and another---Applicants

Versus

Insp. RASOOL BUX and another---Respondents

Criminal Revision Application No. S-200 of 2018, decided on 19th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness--- Witness, given up by prosecution--- Scope--- Accused filed application for summoning the marginal witness of memo as court witness because the prosecution had given up the said witness--- Validity--- Prosecution had given up one of the marginal witnesses---Prosecution usually avoided cumulative evidence for establishing a memo, if it was satisfied with only one marginal witness---Prosecution had the choice to decide about the number and order of witnesses to be produced before the Trial Court and it could not be forced to examine all the witnesses of the calendar of witnesses---Revision petition was dismissed.

Ishrat Ali Lohar for Applicants.

Shehzado Saleem Nahiyoon, D.P.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 335 #

2020 Y L R 335

[Sindh]

Before Yousaf Ali Sayeed, J

MUHAMMAD ZAFAR SHEIKH---Plaintiff

Versus

MUHAMMAD ALI and 5 others---Defendants

Suit No. 2055 of 2017, decided on 23rd May, 2019.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2, O. VII, R. 11---Suit for specific performance of agreement to sell---Rejection of plaint---Interim injunction, grant of---Scope---Plaintiff, in a suit for specific performance of agreement to sell, sought an order directing the defendants to restrain from transferring, alienating or creating any third-party interest in the suit property or otherwise interfering with the plaintiff's possession thereof---Defendant sought rejection of plaint under O. VII, R. 11, C.P.C.---Validity---Prima facie case as to claim to suit property was made out by the plaintiff on the basis of documents filed along with the plaint and it could not be said that the plaint did not disclose a cause of action in his favour---As to plea of revocation of power of attorney (executed by the original lessee in favour of the defendant), it was held by High Court that defendant had continued to act in relation to the suit property for the purpose of regularization without any apparent objection and the effect of such revocation in view of the subsequent conduct of parties was a triable issue that would fall to be determined at the appropriate stage---Suit property being contiguous to the plaintiff's own land and his ostensible possession being recorded in the subject agreement itself as well as other documents the balance of convenience was also in his favour and irreparable loss would ensue if an injunction were denied and the plaintiff came to be divested therefrom---Suit was not barred by limitation under the given circumstances of the case and the scope of the prayers advanced---Plea of overvaluation of suit was not relevant at the present stage, as a mere assertion could scarcely be relied upon to reject or return the plaint---Application for grant of interim injunction was allowed and that of rejection of plaint was dismissed, in circumstances.

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

----O. VII, R. 11---Rejection of plaint---Scope---Plaint is to be rejected when any one or more of the conditions of O. VII, R. 11, C.P.C. are met.

Asim Iqbal for Plaintiff.

Karam Chand Kingrani for Defendant No.1.

YLR 2020 KARACHI HIGH COURT SINDH 354 #

2020 Y L R 354

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

ASGHAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-128 of 2009, decided on 29th August, 2019.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.161 & 173---Qatl-i-amd---Delayed supplementary statement---Appreciation of evidence---Benefit of doubt---First Information Report---Scope---Accused persons were alleged to have murdered four persons---Names of accused persons were not disclosed in the FIR, which was lodged promptly, but were disclosed by the complainant by making application on the 18th day of the incident---Said application could hardly be treated to be a part of FIR---Application had not specified the role which was allegedly played by the accused persons in the commission of the incident---Involvement of accused persons in commission of incident, on the basis of evidence of the complainant by making improvement to his version in his FIR, could safely be said to be doubtful one---Prosecution was not able to prove its case against the accused persons beyond shadow of doubt and the accused persons were entitled to benefit---Conviction and sentence awarded to the accused persons was set aside---Appeals were allowed, in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553 and Tarique Pervaiz v. The State 1995 SCMR 1345 rel.

Badal Gahoti for Appellant.

Ms. Nasira Shaikh for Respondent.

Ms. Safa Hisbani, A.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 366 #

2020 Y L R 366

[Sindh]

Before Muhammad Faisal Kamal Alam, J

RIZWAN AHMED---Plaintiff

Versus

JAMEEL AHMEDand 9 others---Defendants

Suit No. 425 of 2009, decided on 23rd May, 2019.

(a) Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Suit for issuance of letter of administration---Rendition of accounts---Imposition of costs---Scope---Plaintiff filed suit for administration in respect of the estate and business left by his deceased father---Plaintiff produced the original Search Certificate, which confirmed that the suit property vested in the name of his deceased father---Extract of the entries of City Register of Deaths was produced to prove that the deceased had passed away---Copy of the lease of suit property was also produced---Plaintiff was not cross-examined by the contesting defendants---Contesting defendants had not even come forward to testify and discharge the onus of proof---Other defendants, who were real sisters of plaintiff, had corroborated the version of plaintiff---Suit property belonging to the deceased father had to be distributed amongst all the legal heirs---Plaintiff had proved that the subject business, which was being carried out by contesting defendants, did not belong to them, but after the death of his father entire business had to be run as a joint family business---Contesting defendants had usurped the subject business to the utmost disadvantage of other legal heirs and hence they were liable to render the accounts of the business income to the plaintiff and other defendants---Claim of plaintiff, duly corroborated by other defendants, that the contesting defendants had earned Rs. 40,000/- per month from the subject business had gone unrebutted---Site inspection report substantiated the fact that contesting defendants were in possession of the subject business; the report was not objected to by the said defendants---Subject business must have generated at least an income of Rs. 40,000/- per month---Contesting defendants were held liable to pay an amount of Rs. 40,000/- from the date of institution of suit till realization of the amount, to the plaintiff and other defendants---Nazir of the Court was appointed as Administrator to take all steps for partitioning of the suit property among the legal heirs---Since the conduct of contesting defendants was completely uncalled for and they had obstructed the just distribution of inheritance in time, therefore, the suit was decreed with costs.

(b) Pleadings---

----Pleadings cannot be considered as evidence unless the plaintiff or defendant, as the case may be, enters the witness box and leads the evidence in support of his claim or defence.

K.A.H. Ghori v. Khan Zafar Masood and another PLD 1988 Kar. 460 and Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291 ref.

S. Rafiq-un-Nabi for Plaintiff.

Mirza Rafiq Baig for Defendants Nos.3, 5-8.

Nemo for Defendants Nos. 1, 2 and 4.

YLR 2020 KARACHI HIGH COURT SINDH 385 #

2020 Y L R 385

[Sindh]

Before Yousuf Ali Sayeed, J

MUHAMMAD YOUNUS AYUB through duly constituted---Plaintiff

Versus

DEPUTY SUPERINTENDENT, KARACHI and 7 others---Defendants

Suit No. 1029 of 2016, decided on 23rd May, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration---Interim injunction, grant of---Scope---Plaintiff claiming to be in possession of the suit property had sought an injunction for restraining the defendants from dispossessing him---Defendant argued that the plaintiff had approached the court with unclean hands, however, there was no allegation of any suppression of material facts---Issue of usage of suit property and whether proper sanction for construction was obtained was not the essential point for consideration within the ambit and purview of the suit---As to a prima facie case, defendants had not asserted that the grant in respect of the suit property to which the plaintiff claimed, had been cancelled or resumed---Documents placed on record by the defendant reflected that actual allocation to the defendant was not to the extent of land, as was claimed by it---Triable issues had arisen for determination as to the rights of the contesting parties, which required evidence---Prima facie case of title and possession had been made out and the balance of convenience was in favour of the plaintiff---Application for grant of interim injunction was allowed to the extent that the defendants were restrained from dispossessing the plaintiff from the disputed land or blocking his right of ingress and egress until final determination of the suit.

Muhammad Haseeb Jamali for Plaintiff.

Shabbir Shah, AAG for Defendants Nos.1 and 2.

Shabbir Ahmed Sheikh for Defendant No.6.

YLR 2020 KARACHI HIGH COURT SINDH 408 #

2020 Y L R 408

[Sindh (Hyderabad Bench)]

Before Aziz-ur-Rehman and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD HAROON---Petitioner

Versus

PROVINCE OF SINDH through Secretary (L.U.) Board of Revenue, Hyderabad and 4 others---Respondents

Constitutional Petition No.D-741 of 2015, decided on 3rd December, 2018.

(a) Sindh Land Revenue Act (XVII of 1967)---

----Ss. 44, 45 & 53---Gift mutation---Proof of--- Procedure--- Limitation--- Gift on behalf of Pardanasheen lady in favour of uncle---Fraud---Effect---Petitioner filed appeal before Assistant Commissioner against gift entry of mutation which was dismissed being time barred but Additional Deputy Commissioner accepted the same---Contention of respondent was that second appeal before Additional Deputy Commissioner was not competent---Validity---No statement of declaration of donor and/or acceptance of done on the basis of which impugned entry of gift was made was available in the revenue record---Impugned entry of gift was not only fraudulent, bogus, baseless but also of no value and effect, whatsoever---Mutation did not confer any title and same should be proved and established through evidence---Respondent was bound to prove the existence of original transaction on the basis of which impugned entry of gift was made in the record of rights---Respondent had failed to prove the alleged original transaction of impugned gift---Fraud could not be proved directly rather it was to be inferred from the surrounding circumstances and conduct of the parties---Entry made in the revenue record by means of fraud had no foundation and was void ab initio with no legal effect---Any sale/superstructure raised on the basis of fraudulent entry in the revenue record without possessing any valid title was bound to fall---When fraud had been done with an old and Pardanasheen lady, question of limitation would not arise---No oral or documentary proof was available to prove existence of gift in favour of respondent---Respondent had attempted to deprive an old, illiterate and Pardanasheen lady from her land in question---Disputed question of fact could not be looked into/decided by the Revenue Court in the summary proceedings---Factual controversies could only be resolved by a civil Court---Constitutional petition was dismissed, in circumstances.

Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others 2013 SCMR 338; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Muhammad Aslam v. Inspector General of Police, Islamabad and others 2011 SCMR 8 and Abdul Majeed Khan through L.Rs and others v. Ms. Maheen Begum and others 2014 SCMR 1524 ref.

Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Mumtaz Ahmed and another v. Assistant Commissioner and another PLD 1990 SC 1195 rel.

(b) Fraud---

----Fraud vitiate the most solemn proceedings.

----'Collusion'---Meaning.

An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or lawful means for the accomplishment of an un-lawful purpose.

Black Law Dictionary Fifth Addition rel.

(d) Words and phrases---

----'Fraud'---Meaning.

A false representation of a matter of fact whether by words or by conduct, by false or mis-leading allegations, or by concealment of that which should have been disclosed which deceives and is intended to deceive another so that he shall act upon it to his legal injury A generic term, embracing all multifarious means which human ingenuity can devise, and which are restored to by on individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, tric, cunning, dissembling, and any un-fair way by which another is cheated.

Black Law Dictionary Fifth Addition rel.

(e) Words and phrases---

----'Misrepresentation'---Meaning.

Any manifestation by words or other conduct by one person to another that, under circumstances, amounts to an assertion not in accordance with facts. An un-true statement of fact. An incorrect or false representation, that if accepted, leads the mind to an apprehension of condition other and different from which that exists. Colloquially it is understood to mean a statement made to deceive or mis-lead.

Black Law Dictionary Fifth Addition rel.

Jagdish R. Mullani for Petitioner.

Haji Khan Muhammad Kashmeri for Respondent No.5.

Allah Bachayo Soomro, Additional A.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 457 #

2020 Y L R 457

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

MUNIB---Applicant

Versus

ALI MARDAN and 6 others---Respondents

Criminal Miscellaneous Application No. 658 of 2013, decided on 29th June, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Prevention of illegal possession of property---Cognizance of offence---Second complaint---Fresh facts and circumstances--- Death of complainant---Right of legal heirs---Scope---Complaint filed by petitioner under Illegal Dispossession Act, 2005 was dismissed without taking cognizance---Stage of associating the respondents (proposed accused) in the proceedings had not yet arrived when the complaint was dismissed---Complainant had filed the criminal miscellaneous application against dismissal of his complaint and during its pendency, he expired---Held, had the respondents been acquitted by the Trial Court then the right would have survived in favour of the legal heirs of complainant---Filing of fresh criminal complaint was possible in the present case, which was dismissed at pre-trial stage---Second or subsequent complaint could, however, be filed on fresh facts and circumstances---Criminal miscellaneous application was disposed of by the High Court with the observation that the legal heirs of the deceased could file a fresh complaint under Illegal Dispossession Act, 2005.

AIR 1967 SC 983; 2016 SCMR 1931; PLD 2016 SC 769; PLD 2012 Bal. 189; 2017 YLR 1456; PLD 2010 SC 725; PLD 2007 Kar. 99; PLD 2012 Sindh 399; PLD 2007 Quetta 72; 2011 YLR 979; 2009 PCr.LJ 127 and PLD 2010 SC 612 ref.

Fazaullah Khan v. Begum Fatima Imtiaz and 3 others PLD 2007 Kar. 99; Mst. Shamim Akhtar v. Abdul Rauf Dogar 1999 PCr.LJ 1870 and Zahoor and others v. Said-ul-Ibrar 2003 SCMR 59 rel.

Mukesh Kumar and Sajjad Muhammad Zangejo for Applicant.

Safdar Ali Kanasiro for Respondent/ accused.

A.R. Kolachi, A.P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 466 #

2020 Y L R 466

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD IQBAL alias KALLOO and another---Petitioners

Versus

Mst. EIDI BEGUM and 15 others---Respondents

Constitutional Petition No. D-338 of 2019, decided on 26th February, 2019.

Civil Procedure Code (V of 1908)--

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Judgment, setting aside of---Fraud, misrepresentation or question of jurisdiction---Proof---Petitioners sought setting aside of judgment on grounds that they were owners in 50% of suit property against which a judgment and decree was passed---Trial Court declined to set aside judgment and decree---Validity---Petitioners admitted in pleadings that they were 50% shareholders in suit property and Trial Court did not touch fifty percent share of petitioners---Deceased predecessor-in-interest of petitioners was not owner of whole suit property therefore, invoking S. 12(2), C.P.C. was not called for---Provisions of S. 12(2), C.P.C. had laid down principle that if a decree, order or judgment was obtained by fraud, misrepresentation or where question of jurisdiction had arisen, such order, decree or judgment would be challenged through an application in same court and no other separate suit would lay---No fraud and misrepresentation of facts was committed by respondents in obtaining judgment and decree---If suit property was not partitioned, petitioners could avail legal remedy for the same relief in accordance with law---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

YLR 2020 KARACHI HIGH COURT SINDH 484 #

2020 Y L R 484

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD AQIL KHAN---Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government Department, Karachi and 4 others---Respondents

Constitutional Petition No. D-320 of 2019, decided on 25th February, 2019.

(a) Sindh Local Government Act (XLII of 2013)---

----Ss. 76 & 89---Development plans---Recommendations by the Council---Scope---Petitioner sought a direction to the Chief Municipal Officer of the Municipal Committee to implement resolutions of the Council and release funds---Validity---Section 76 of Sindh Local Government Act, 2013 provided that Council was empowered to prepare and implement development plans---Section 89 of Sindh Local Government Act, 2013 provided that the Council could make recommendations to the Government and the later was under obligation to consider the recommendations of the Council and pass such order as it deemed appropriate in the circumstances of the case---Government had to give reasons for its refusal to accept the recommendations of the Council---Powers of Chief Municipal Officer were confined to the administrative matters and the resolution, if any, passed by the Council had to be approved first by the Government, thereafter certain directions could be given to the administrative officer to implement the directives of the Government---Approval of Government, in financial matters, was necessary and in the absence of that no scheme could be implemented---No direction, therefore, could be issued by the High Court to the respondents---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Extraordinary and discretionary jurisdiction--- Scope--- Extraordinary jurisdiction of High Court could be invoked to encounter and collide with extraordinary situation---Jurisdiction conferred under Art. 199 of the Constitution was discretionary with the object to foster justice, in aid of justice and not to perpetuate injustice---Where it was found that substantial justice had been done between the parties then such discretion could be declined.

Ms. Asma Malik for Petitioner.

YLR 2020 KARACHI HIGH COURT SINDH 503 #

2020 Y L R 503

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

ALI AKBER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-68 of 2017, decided on 13th December, 2018.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of Chemical Examiner---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Delay in sending samples to Chemical Examiner---Non-production of sample-bearer---No independent witnesses were associated--- Effect--- Accused person was alleged to have been in possession of 8 kilograms of charas when he was arrested---Alleged contraband was sent for chemical examination with a delay of one day---Sample bearer was not examined nor was there any entry with regard to keeping and sending the contraband item for examination in a safe manner---Report of Chemical Examiner, though positive, but was without required certification---Complainant admitted that while going towards the place of incident, which was 250 kilometers away, complainant party had stopped and got fueled their vehicles from a petrol pump but the mashir police official stated that they did not make any stop---Complainant stated that he tried to pick up the private persons as mashirs of arrest and recovery, however, they apologized on the ground that they were passengers---Complainant stated that he completed the entire proceedings at the place of incident within an hour, whereas mashir stated that they had completed the proceedings within 30 minutes---Registration number of the vehicles, on which the complainant party had boarded at the time of incident, was not mentioned in the FIR nor in the mashirnama or in evidence of the prosecution witnesses---Mashir was a subordinate of the complainant, no independent person from or while going to the place of incident was picked up to act as mashir of arrest and recovery; therefore, it was a case of insufficient evidence---Prosecution had failed to prove its case against the accused, therefore, while extending benefit of doubt in favour of the accused his appeal was allowed.

Muhammad Sarfraz v. The State and others 2017 SCMR 1874; Ghulam Shabir Shar v. The State 2018 PCr.LJ 829; Abdul Rehman alias Juman v. The State 2018 PCr.LJ 1015 and Zafar v. The State 2008 SCMR 1254 distinguished.

Muhammad Altaf v. The State 1996 PCr.LJ 440; Qaloo v. The State 1996 PCr.LJ 496; Muhammad Khalid v. The State 1998 PCr.LJ 808 and Nazeer Ahmed v. The State PLD 2009 Kar. 191 ref.

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

(b) Criminal trial---

----Complainant acting in capacity of Investigating Officer---Scope---Person who is a complainant of the case, in order to keep all fairness of things, cannot investigate the case, which must be investigated by an independent officer.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 and Ashiq alias Kaloo v. The State 1989 PCr.LJ 601 rel.

----Benefit of doubt---Scope---Benefit of doubt should be extended in favour of the accused as of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ghulamullah Chang for Appellant.

Muhammad Ayoob Kasar Special Prosecutor, ANF for the State.

YLR 2020 KARACHI HIGH COURT SINDH 519 #

2020 Y L R 519

[Sindh]

Before Yousuf Ali Sayeed, J

NEIE-SMADB-LILLEY-RMS (JV) through authorized representative and 2 others--Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary and 6 others---Defendants

Suit No. 319 of 2019, decided on 1st April, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration---Contract for construction of a public project--- Submission of fake performance guarantee by the contractor---Termination of contract---Temporary injunction, grant of---Requirements---Temporary injunction could only be granted if there was a prima facie case, balance of convenience and irreparable loss to the plaintiff---Court could not compel ongoing co-operation between commercial parties where continuous supervise performance was required---Licence granted to the plaintiff in terms of contract was not a licence coupled with any interest and there was no implied covenant as to not revoke such licence in case breach of such contract so as to make it irrevocable in the absence of lawful termination---Balance of convenience did not require undoing the termination of contract---Grant of temporary injunction, in the present case, would force one of two parties either to fall back on and suffer delay in execution of the project to its own detriment and national interest---If plaintiff ultimately succeeded in establishing that termination of contract was unwarranted then compensation would be available from offending parties in the form of damages---Balance of convenience and irreparable loss did not lie in favour of plaintiff, in circumstances---Application for grant of temporary injunction was dismissed accordingly.

Mohammad Aref Effendi v. Egypt Air 1980 SCMR 588 and Munda Hyderopower Ltd. through Habib H. Parach and 2 others v. Federation of Pakistan through Secretary Ministry at Water and Power and 2 others 2009 MLD 526 distinguished.

Messrs Pakistan Associated Construction Ltd v. Asif H. Kazi and another 1986 SCMR 820; Chaudhry Construction Co. Limited v. Pakistan and others 1990 CLC 394; Garret v. Banstead and Epsom Downs Rly. Co (1965) 12 L.T. 654: 13 W.R. 878) and Munro v. Wivenhoe, etc. (1865) 12 L.T. 655 rel.

Abid S. Zuberi along with Ayan Memon and Ahmed Ali Hussain for Plaintiffs.

Darvesh K. Mandan for Plaintiff No.3.

Suleman Mansoor along with Farhat Kamal, CE/PD, Nai Gaj Dam Project and Mir Shah Murad, Assistant Director (Legal), WAPDA for Defendant No.2.

Saifuddin for Defendant No.5.

YLR 2020 KARACHI HIGH COURT SINDH 537 #

2020 Y L R 537

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon ,JJ

MUHAMMAD RAMZAN---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 16 others---Respondents

C. P. No. D-31 of 2019, decided on 13th March, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Contractual dispute---Disputed questions of fact---Maintainability---Scope--- Petitioner sought enforcement of contractual obligations entered into between him and respondents---Validity---Contractual rights, commitments, undertakings and obligations had to be enforced through courts of ordinary jurisdiction which could not be interfered with by the High Court while exercising its constitutional jurisdiction---Normal remedy in such eventualities was a suit for enforcement of contractual rights and obligations---High Court could not go in deep investigation of disputed question of fact which necessitated taking of evidence---Such exercise could more appropriately be done in the ordinary civil procedure by filing a suit---Constitutional petition, being misconceived in facts and law, was not maintainable and was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Disputed questions of fact---Scope---Extraordinary jurisdiction is primarily intended for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts---Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties, can be determined only by courts having plenary jurisdiction in the matter.

YLR 2020 KARACHI HIGH COURT SINDH 561 #

2020 Y L R 561

[Sindh]

Before Nadeem Akhtar, J

AIRPORT HOTEL, HOTEL SKYROOMS (PVT.) LTD. through Authorized Officer---Appellant

Versus

Khawaja AHSAN MEHMOOD and others---Respondents

First Rent Appeals Nos. 9, 10, 11, 12, 13, 14 and 15 of 2015, decided on 28th August, 2019.

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

----Ss. 17, 27 & 28---Ejectment of tenant---Denial of relationship of landlord and tenant by the tenant---Rent Controller dismissed ejectment petition in a summary manner with special costs---Validity---Rent Controller had no power to award compensation and he could only impose fine to the extent of Rs. 500/- in case of contravention and/or non-compliance of any of the provisions of Cantonments Rent Restriction Act, 1963 or the Rules made thereunder---Eviction petition, in the present case, had been dismissed by holding that same was not maintainable as relationship of landlord and tenant did not exist---Landlord had not contravened or failed to comply with any of the provisions of Cantonments Rent Restriction Act, 1963 or the Rules made thereunder---No fine under S. 28 of Cantonments Rent Restriction Act, 1963 could be imposed upon the landlord, in circumstances---Special costs had been imposed by the Rent Controller by holding that landlord had wasted time of the Court---Rent Controller had no power to impose special costs while dismissing eviction petition even if it was not maintainable for the reason stated in the impugned order---Findings recorded by the Rent Controller were arbitrary and illegal and he was bound to decide the question of relationship of landlord and tenant between the parties, if objection was raised---Rent Controller had failed to exercise jurisdiction vested in him by law---Appeal was allowed, in circumstances.

Ismail v. Rent Controller, Shahdadpur and another 1983 CLC 2994; Mrs. Chian Fong Wu v. Abubaker A. Chhaya 1990 CLC 1724 and Muhammad Faryad v. Sultan Ahmed, Rent Controller, Lahore and another 1994 MLD 293 rel.

Khaleeq Ahmed for Appellant (in all Appeals).

Respondent No.1 (in F.R.A. No.9 of 2015), called absent.

Respondents Nos. 1 and 2 (in F.R.A. No. 10 of 2015), called absent.

Respondents Nos. 1 and 2 (in F.R.A. No.11 of 2015), called absent.

Respondent No.1 (in F.R.A. No.12 of 2015), called absent.

Respondents Nos. 1 and 2 (in F.R.A. No.13 of 2015), called absent.

Respondents Nos. 1 and 2 (in F.R.A. No.14 of 2015), called absent.

Respondents Nos. 1 and 2 (in F.R.A. No.15 of 2015), called absent.

Controller of Rents, Faisal Cantonment, Karachi Respondent (in all appeals).

YLR 2020 KARACHI HIGH COURT SINDH 568 #

2020 Y L R 568

[Sindh]

Before Salahuddin Panhwar, J

The STATE through Prosecutor General Sindh---Appellant

Versus

Dr. ZULFIQAR MIRZA and 11 others---Respondents

Criminal Acquittal Appeal No. 394 of 2017, decided on 6th February, 2019.

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

----Ss. 353, 186, 146 & 147---Criminal Procedure Code (V of 1898), Ss. 249-A & 417---Assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting---Appeal against acquittal---Power of Magistrate to acquit accused at any stage of trial---Appreciation of evidence---Prosecution assailed order of Trial Court whereby accused persons were acquitted of the charges under S.249-A, Cr.P.C.---Allegation against main accused was that he misbehaved with police officials who were on official duty, pushed them aside and forcibly climbed their official vehicle's bonnet---Vague allegations of pushing and climbing on bonnet of vehicle were levelled---Complainant had not spoken as to how such acts resulted in deterring the police official from discharging his duty---"Obstruction" or "deterrence" within the meaning of S. 353 or 186, P.P.C. must be with the intention to prevent someone from discharge of official duty; charge in absence thereof would qualify to be groundless and that proceedings would not result in conviction---Findings of Trial Court were not shown to be shocking, perverse and illegal---Appeal against acquittal was dismissed.

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

---Ss. 249-A & 265-K---Power of Magistrate to acquit accused at any stage of trial---Power of Court to acquit accused at any stage---No probability of conviction---Groundless charge---Abuse of process of law---Scope---Trial Court is competent to exercise its power under S. 249-A and S. 265-K, Cr.P.C. where taking available material as true yet there is no probability of conviction or where charge appears to be groundless and further proceedings would be nothing but an abuse of process of law.

Ghulam Farooq Tarar v. Rizwan Ahmed and others 2008 SCMR 383 rel.

Siraj Ali Khan, A.P.G. for the State/Appellant.

Khalid Saifullah Simair for Respondent No.1.

YLR 2020 KARACHI HIGH COURT SINDH 578 #

2020 Y L R 578

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD YOUSAF and others---Petitioners

Versus

TRUSTEES OF THE PORT OF KARACHI through Estate Manager and 2 others---Respondents

Constitutional Petitions Nos. D-6641, 6642, 6643, 6644 and 6645 of 2015, decided on 5th December, 2019.

(a) Port Authorities Lands and Buildings (Recovery of Possession) Ordinance (IX of 1962)---

----Ss. 2, 3 & 4---Notification SRO No. 141(KE)/2005 dated 14-11-2005---Recovery of possession---Magistrate, powers of---Question of jurisdiction---Petitioners were lessees on land owned by Karachi Port Trust and were aggrieved of order passed by Trial Court and Lower Appellate Court dispossessing them---Plea raised by petitioners was that judicial magistrate was not competent to try case in question---Validity---Question of jurisdiction could be raised at any stage which went to roots to case---Such was not a mere technicality but jurisdiction to try complaint was conferred to authorized officer by law and under notification issued by Federal Government specifically to exercise all powers vested in authorized officer under Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962---Magistrate and Trial Court had no jurisdiction to try complaints filed by Karachi Port Trust and order passed by them were coram non judice---Initial orders were without jurisdiction therefore, appellate court judgment affirming such orders was also without jurisdiction and needed to be corrected---Objection to jurisdiction could not be construed or regarded as mere technicality but in pith and substance it had much significance---No court could assume jurisdiction not provided under law---High Court set aside orders passed by Trial Court and Lower Appellate Court and remanded matter for de novo trial by authorized officer---Constitutional petition was allowed accordingly.

(b) Coram non judice---

----Object, purpose and scope---Coram non judice is a legal term typically used to indicate a legal proceeding that is outside presence of a judge, with improper venue or without jurisdiction---Any indictment or sentence passed by a court which has no authority to try an accused of that offence is violation of law and would be coram non judice and a nullity---Jurisdiction cannot be conferred by consent nor can it be fettered unless there is a choice between more than one place in terms of jurisdiction---If order or judgment is suffering from vice of coram non judice it may be quashed and set aside by a court when a special statute gives a right and also provides for a forum for adjudication of rights.

M.S. Ahlawat v. State of Haryana and others AIR 2000 SC 168; St. Lawrence Boom and Mfg. Co. v. Holt, 41 S.E. 351, 355, 51 W.Va 352; Black's Law Dictionary, Seventh Edition, Bryan A. Garner, Editor in Chief and Wharton's Law Lexicon, 1976 reprint, p. 260; 12 Cr.LJ 326 rel.

----Question of law---Object, purpose and scope---Pure question of law means a question which does not require any investigation into facts but which could not have been met by a plea of fact if raised at proper stage---Ordinarily, it will be a good argument as against a plea being plea of law that it could have been met by an allegation of fact---Proposition is not open to contest that pure questions of law can be raised at any stage---Court itself is to apply law whatever law is applicable on admitted or proved facts---Law has to be given effect to whether or not it has been relied upon by a party---If a mandatory condition for exercise of jurisdiction by a court is not fulfilled then entire proceedings which follow become illegal and suffer from want of jurisdiction.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Haji Abdullah Khan's case PLD 1965 SC 90; Mansib Ali's case PLD 1971 SC 124 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 rel.

Malik Khushhal Khan for Petitioners.

Yawar Faruqui for Respondent No.1.

Tanveer Qabool for Intervenor.

M. Jawwad Dero, Addl. A.G. Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 607 #

2020 Y L R 607

[Sindh]

Before Nadeem Akhtar, J

Mrs. MUSARRAT ISLAM through Legal Heirs---Appellant

Versus

Mrs. FARZANA ANWER and another---Respondents

Second Appeal No. 44 of 2009, decided on 21st September, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), Ss. 51 & 55---Suit for specific performance of agreement to sell---Time as an essence of contract---Contention of defendant was that plaintiff had not paid balance sale consideration within stipulated period---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Execution of sale agreement had been admitted by the defendant---Suit property was under mortgage with House Building Finance Corporation when agreement to sell was executed---Defendant agreed to transfer valid title of suit property in favour of plaintiff within ninety days of sale agreement but same was redeemed after one year and seven months from the date of agreement to sell---Defendant was bound to redeem the suit property before completion of sale in favour of plaintiff---Plaintiff could not perform her agreed part of contract nor was bound to do so unless suit property was redeemed from all charges and encumbrances---Promises of both the parties were reciprocal and dependent on the performance of each other---Plaintiff had not committed breach of agreement but defendant had violated terms and conditions of contract---Time mentioned in the agreement for sale of immovable property was not of the essence of contract---Plaintiff had deposited the entire balance sale consideration before the Trial Court---Findings rendered by the Appellate Court were contrary to the facts and evidence on record---Trial Court had properly appreciated the evidence on record---Impugned judgment and decree passed by the Appellate Court being not sustainable in law were set aside and those of Trial Court were maintained---Second appeal was allowed, in circumstances.

Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others 2005 SCMR 1518 and Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 rel.

Abdul Qadir Mirza for Appellants.

Iftikhar Javed Qazi for Respondent No.1.

Respondent No.2 Sub-Registrar T-Division-XVI, Gulshan-e-Iqbal, Karachi, called absent.

YLR 2020 KARACHI HIGH COURT SINDH 634 #

2020 Y L R 634

[Sindh]

Before Fahim Ahmed Siddiqui, J

SALEEM RAN and 23 others---Applicants

Versus

IIND ADDITIONAL SESSIONS JUDGE, "MALIR", KARACHI and 5 others---Respondents

Criminal Revision Application No.200 of 2018, decided on 8th August, 2019.

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

----S. 2---Term 'person'---Connotation---Any Housing Co-operative Society (Society) can file an illegal dispossession complaint as a 'person' in respect of any property owned by Society against those who have illegally dispossessed entire land of society or some plots of society allotted to its members---Being a special law, Illegal Dispossession Act, 2005 does not debar a Society to initiate a proceeding under Illegal Dispossession Act, 2005 on ground that some of encroachers or unlawful occupiers of any portion of land have initiated some other legal proceedings either criminal or civil---Even if general criminal law is put in motion from either side or anybody else by lodging FIR or filing a civil suit, it does not oust any person including a society from initiating a proceeding under Illegal Dispossession Act, 2005---Illegal dispossession complaint, in such a situation, can competently be filed---No bar exists on proceeding of criminal or civil cases simultaneously.

Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Muhammad Ramzan alias Jani v. Muhammad Aslam and others 2007 PCr.LJ 1784 rel.

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

----Ss. 3, 4 & 7---Sindh Goth Abad (Housing Scheme) Rules, 2008, R.4(3)---Encroachment over property---Mala fide---Laches---Housing Co-operative Society as a "person"---Applicants were residents on land in question who were aggrieved of dispossession by Trial Court by delivering possession of land in question to respondent Housing Society---Plea raised by applicants was that they were residing on land in question and that Housing Society could not file illegal dispossession complaint---Validity--Documents produced by applicants were apparently fake as no village could be sanctioned or approved on a private land---Allotment order did not bear date of issuance and through same, plot of 120 square yards was allotted to a person while as per R. 4(3) of Sindh Goth Abad (Housing Scheme) Rules, 2008, size of plot allotted under Goth Abad Scheme could not exceed two ghuntas---No proof was placed on record by any applicant---Not a single National Identity Card, domicile or Permanent Residence Certificate was annexed with application or produced which bore address of land in question---Claim of applicants was merely words and had no credibility---Applicants had no locus standi to raise objection about status of Housing Society---Housing Society was established to have acquired land in question after fulfilling all requisite formalities and payment of price of land which was transferred in the name of Housing Society---Housing Society had good title over subject land while applicants and other illegal occupants, being encroachers and illegal occupiers had no right regarding land in question---No claim on behalf of applicants regarding land in question was justified---High Court declined to interfere in order of possession issued by Trial Court as revision was not maintainable on ground of laches---Revision was dismissed in circumstances.

Federal Government Employees' Housing Foundation and others v. Malik Ghulam Mustafa and others PLD 2019 Isl. 1; Gulistan Textile Mills Ltd. v. Soneri Bank Ltd. 2018 CLD 203; ZHA Securities (Pvt.) Ltd. and others v. Federation of Pakistan and others 2018 CLD 1338; Askari Bank Limited v. DCD Services Limited and 3 others 2018 CLD 799; Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Major (Retd.) Pervez Iqbal v. Muhammad Akram Almas and others 2017 SCMR 831; Shifa International Hospitals Ltd. and others v. Mst. Hajira Bibi and others PLD 2018 Isl. 372; Habib Bank Ltd. v. Capital City Police Officer and others 2015 PCr.LJ 1609; Ghazanfar Ali v. M. Zahid Hussain and others PLD 2011 Lah. 179; Malik Muhammad Shoaib Bhutta, Editor, Daily Tulou, Islamabad v. Abdul Aziz Mohammad and another PLD 2010 Lah. 300; Nazir Ahmed v. Asif and 4 others PLD 2008 Kar. 94; Alia Hussain v. Syed Ziauddin PLD 2008 Quetta 27; Abdul Qahir alias Saidq v. Bibi Aisha and 2 others PLD 2012 Bal. 189; Mst. Inayatan Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229; Brigadier (Retd.) Syed Ali Mohsin v. Fazal Inam Sabir alias Saain Inam and others 2019 PCr.LJ 563; Waqas Amjad and others v. Additional Sessions Judge and others PLD 2019 Lah. 111; Abdul Ghaffar v. Muhammad Asif and another 2011 PCr.LJ 441; Muhammad Qasim v. S.H.O. Police Station Khudabad 2016 MLD 1238; Mumtaz Hussain v. Nasir Khan and others 2010 SCMR 1254; Malik Muhammad Shoaib Bhutta, Editor, Daily Tulou, Islamabad v. Abdul Aziz Mohammad and another PLD 2010 Lah. 300 and Muhammad Amanullah Khan and 346 others v. Province of Sindh through Secretary, Local Government and Rural Development Department and others 2007 MLD 1750 ref.

Liaquat Ali for Applicants.

Faiz H. Durrani, Samia Faiz Durrani, Ghulam Muhammad and Deedar Ali Bhutto for Respondent No.2.

Zahoor Shah, D.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 676 #

2020 Y L R 676

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

AFAQ AHMED---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.A. No. 129 of 2017 and Confirmation Case No. 06 of 2017, decided on 15th March, 2019.

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

----Ss. 302, 324, 353, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Source of light---Contradictory evidence---Disclosure of identity of accused before identification parade---Effect---Two police constables were on patrol when they signaled a motorbike to stop but its riders sped away and the constables chased them---Motorbike was chased into a street whereupon four persons came in the way of constables and an exchange of hot words followed whereupon four persons fired at the constables, one of them died---Prosecution case against accused was based on the evidence of the eye-witness (escaped constable), recoveries, medical, ballistic and chemical reports---Sole eye-witness of the incident reported that he was in front and the deceased was behind him when they had turned to get back on their motorbike, when all the four accused fired at the deceased in order to kill them---Departure entry of eye-witness for leaving the police station along with the deceased showed that he was not a chance witness---Numerous aspects of the evidence of eye-witness did not appeal to reason, logic or commonsense---No light bulb or any other source of light was taken into custody to prove that the eye-witness saw the accused, if at all, briefly---Eye-witness, as per his own admission, had not seen the actual firing---Eye-witness had not mentioned about the accused in his statement under S.161, Cr.P.C.---Eye-witness was posted at the same police station where the accused was confined, therefore, identification parade could not be given weight---Evidence of eye-witness was not reliable, trustworthy or confidence inspiring and was disbelieved to the extent of particulars relating to shooting of the deceased---Impugned judgment was set aside and by extending benefit of doubt accused was acquitted of the charge.

Muhammad Asif v. The State 2017 SCMR 486; Ata Muhammad and another v. The State 1995 SCMR 599; Askar Jan v. Muhammed Daud 2010 SCMR 1604; Haq Nawaz v. State 2018 SCMR 95; Rukhsana Begum v. Sajjad 2017 SCMR 596; Gulfam v. State 2017 SCMR 1189; Javed Khan v. The State 2017 SCMR 524; Muhammed Yactoob v. State 1989 PCr.LJ 2227 and Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018: Notice in compliance with the order dated 12.02.2019 passed in Criminal Appeal No.259 of 2018 ref.

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

----Ss. 302, 324, 353, 109 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Hearsay evidence---Withholding of evidence---Non-production of material witness due to security concerns---Effect---Two police constables were on patrol when they signaled a motorbike to stop but its riders sped away and the constables chased them---Motorbike was chased into a street whereupon four persons came in the way of constables and an exchange of hot words followed whereupon said four persons fired at the constables, one of them died---Complainant was not an eye-witness to the firing and had allegedly reached the place of incident within a few minutes of the occurrence after being informed by his friend through mobile phone---Friend of complainant was a foundational witness of the prosecution case as it was his narration of the events to the complainant over the phone which led the complainant to go to the scene and formed basis of the FIR---Friend of complainant was not examined by the prosecution to corroborate the complainant's FIR especially in respect of the shooting of the deceased nor was any CDR (Call Data Record) produced by the prosecution to support such conversation--- Impugned judgment although mentioned that the friend of complainant did not give evidence due to security concern but it was a weak argument for him not to give evidence as the court could always provide adequate security to a witness---Non-examination of the friend of complainant was an important omission by the prosecution as their case was built on the hearsay evidence---Statement under S. 161, Cr.P.C. could never replace the value/ weight of evidence given under oath which was tested through cross-examination---Friend of complainant was originally on the calendar of witnesses and was later on given up, therefore, Art. 129(g) of Qanun-e-Shahadat, 1984 came into play whereby it could be presumed that had the friend of complainant been produced he might not have given evidence favourable to the prosecution's case---Impugned judgment was set aside, in circumstances and by extending benefit of doubt, accused was acquitted of the charge.

Muhammed Rafique v. State 2010 SCMR 385 ref.

----Ss. 302, 324, 353, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Contradiction in medical and ocular evidence--- Corroborative evidence---Scope---Two police constables were on patrol when they signaled a motorbike to stop but its riders sped away and the constables chased them---Motorbike was chased into a street whereupon four persons came in the way of constables and an exchange of hot words followed whereupon four persons fired at the constables, one of them died---Medical evidence was only supportive of the fact that the deceased was hit by 3 different bullets which was contrary to the ocular account of main eye-witness that the deceased received 10 to 13 bullet injuries all over his body---Medical evidence was of little, if any, assistance to the prosecution which in any event was only supportive in nature and gave further support to the fact that the eye-witness fled the scene before the firing on the deceased---Impugned judgment was set aside, in circumstances and by extending benefit of doubt, accused was acquitted of the charge.

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

----Ss. 302, 324, 353, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon---Safe custody---Sending of empties along with recovered weapon---Effect---Accused, along with three others, was alleged to have murdered a police constable by firing on him within the view of his partner constable---Empties were recovered on the day of the incident and yet those were not sent for ballistic examination immediately but were sent after an unexplained delay of 7 days with no proof of safe custody along with the firearm, which was apparently recovered from the accused at about the same time when he was arrested 7 days after the incident---Delay in sending the empties before the weapon was recovered and sending them together (empties and weapon) to Ballistic Expert, it could not be ruled out that the empties came from the weapon once it was recovered---Report of Forensic Science Laboratory could not be safely relied upon which in any event was only supportive evidence---Impugned judgment was set aside, in circumstances and by extending benefit of doubt, accused was acquitted of the charge.

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

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

----Ss. 302, 324, 353, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Two police constables were on patrol when they signaled a motorbike to stop but its riders sped away and the constables chased them---Motorbike was chased into a street whereupon four persons came in the way of constables and an exchange of hot words followed whereupon four persons fired at the constables, one of them died---Motive, as put forward by the prosecution in the FIR, was not proved---Brief hot exchange of words between the accused and the police whereby the police had conceded to the demand of the accused not to enter the mohalla was not a sufficient motive so as to lead to such an extreme reaction of the accused firing on the deceased---Impugned judgment was set aside, in circumstances and by extending benefit of doubt, accused was acquitted of the charge.

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

Altaf Hussain v. The State 2019 SCMR 274 ref.

(g) Criminal trial---

---Administration of justice---Scope---Prosecution must prove its case beyond a reasonable doubt and it is not for the accused to disprove the case against him who may take as many defenses as he likes to the allegations against him, as the onus rests on the prosecution to prove its case beyond a reasonable doubt.

Muhammed Shah v. State 2010 SCMR 1009 ref.

(h) Criminal trial---

----Benefit of doubt---Scope---Benefit of the prosecution case must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

(i) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle him to the benefit not as a matter of grace and concession but as a matter of right. [p. 684] D

Abdul Jabbar v. State 2019 SCMR 129 ref.

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

----S. 161---Examination of witnesses by police--- Evidentiary value--- Scope---Statement under S. 161, Cr.P.C. can never replace the value/weight of evidence given under oath which is tested through cross-examination.

Mehmood A. Qureshi for Appellant.

Pir Rehman for the Complainant and also heard in person.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 705 #

2020 Y L R 705

[Sindh]

Before Yousuf Ali Sayeed, J

Rao NOOR AHMED---Plaintiff

Versus

SHABBIR HUSSAIN KAPASI and 7 others---Defendants

Suit No. 675 of 2017, decided on 28th June, 2019.

Civil Procedure Code (V of 1908)--

----O. VII, R. 11 & S. 11---Specific Relief Act (I of 1877), Ss. 42 & 8---Suit for declaration and possession---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Contention of defendants was that suit was barred under S.11 of C.P.C.---Validity---Points raised in the petition for rejection of plaint were not discernible from the same and had been mentioned only in the written statement---Documents placed on file on behalf of defendants for rejection of plaint could not be relied at such stage of proceedings---Petition for rejection of plaint was dismissed, in circumstances.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

Shaukat Ali Shaikh for Plaintiff.

Jaffer Raza for Defendants Nos. 1 and 2.

Anwar Ali Shah for Defendant No.6.

YLR 2020 KARACHI HIGH COURT SINDH 715 #

2020 Y L R 715

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

IRFAN ALI---Applicant

Versus

ADDITIONAL SESSIONS JUDGE, SHAHDADPUR and another---Respondents

Criminal Revision Application No.S-198 of 2014, decided on 15th October, 2018.

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

----S. 514---Forfeiture of surety bond---Scope---Petitioner assailed order of Trial Court whereby he was penalized on his failure to produce the accused in the Court---Petitioner was legally bound to discharge his liability under the bail bond furnished by him---Petitioner had undertaken the liability by himself, therefore, it did not lie in his mouth to say that on account of his financial condition he could not pay the amount of bond executed by him and had stood surety of the accused out of his benevolence and without any monetary gain---No legal embargo existed that the amount of bail bond in full could not be forfeited---Trial Court was justified in imposing the penalty after observing all legal formalities---Application was dismissed.

Naseer Muhammad v. The State 1996 PCr.LJ 860 ref.

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

----S. 514---Forfeiture of surety bond---Scope---Where an accused jumps bail bond, the entire surety amount becomes liable to confiscation---Surety is liable to produce the accused in the court, in view of his undertaking at the time of furnishing surety, on each and every date of hearing and in case he fails to produce the accused he would be liable to be penalized.

Zeeshan Kazmi v. The State PLD 1997 SC 267 and Ghulam Dastagir and 3 others v. The State PLD 2011 SC 116 rel.

Roshan Ali Azeem Mallah for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 722 #

2020 Y L R 722

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

MUJEEB-UR-REHMAN---Applicant

Versus

Mst. REHANA BIBI through Attorney and 8 others---Respondents

Civil Revision Application No. 102 of 2016, decided on 5th December, 2018.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 127 & 129 (g)---Suit for declaration--- Fraud--- Limitation--- Sale deed---Proof of---Hearsay evidence---Transaction with Pardanasheen lady---Protection---Contention of plaintiff was that impugned sale deed was a fraudulent document and owner lady had not sold the suit property in favour of defendant---Suit was decreed concurrently---Validity---Defendant was bound to prove the execution and genuineness of impugned sale deed---Defendant did not appear in the witness box and only his attorney got recorded his statement---Evidence of defendant was hearsay as his attorney was not present at the time of execution of sale deed---Hearsay evidence was not admissible under the law---Defendant had not examined any attesting witness of sale deed which was required in the eye of law---Even Sub-Registrar or any other concerned official had not been produced to prove the execution of impugned sale deed---Defendant had failed to prove the execution of impugned sale deed, in circumstances---Plaintiff was illiterate lady who had denied the execution of sale deed---Protection had been provided to the illiterate and Pardanasheen ladies---Period of limitation to challenge a fraudulent transaction would run from the date of its knowledge---Revision was dismissed, in circumstances.

2009 SCMR 371; 2008 SCMR 571; 2016 MLD 655; 2013 SCMR 299; 2016 MLD 370 and 2004 SCMR 877 ref.

2015 SCMR 1704; 2016 SCMR 862; Nazar Khan v. Mst. Hassan Begum 2013 MLD 913; Mohammad Yaqoob v. Naseer Hussain PLD 1995 Lah. 395; Mohammad Bashir v. Abdul Rauf 2011 MLD 96; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Ghulam Mohammad v. Farooq Ahmed and others 2002 SCMR 1801; Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658 and Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could exercise its revisional jurisdiction only in those cases where subordinate Court had exceeded its jurisdiction or had declined to exercise its jurisdiction or had acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law.

Haji Mohammad Din v. Malik Mohammad Abdullah PLD 1994 SC 291; Shahbaz Rasool and 4 others v. Aamir Imran and 7 others 2011 CLC 1941; Cantonment Board Rawalpindi v. Mohammad Sharif through legal heirs PLD 1995 SC 472 and Sheikh Faqeer Mohammad v. Mohammad Din 1993 SCMR 1955 rel.

Tariq G. Hanif Mangi for Applicant.

Mushtaq Ali Shah for Respondent No.1.

Ali Mutahir Shar for Respondents Nos. 2 to 9.

YLR 2020 KARACHI HIGH COURT SINDH 739 #

2020 Y L R 739

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Khadim Hussain Tunio, JJ

Mir MUHAMMAD RAZA TALPUR---Petitioner

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY through Chairman, Islamabad and 6 others---Respondents

Constitutional Petition No. D-431 of 2014, decided on 29th May, 2019.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.12(2)---Constitutional petition---Non-impleadment of necessary party---Maxim: Audi alteram partem---Applicability---Constitutional petition was filed seeking direction to National Database and Registration Authority---Petitioner sought permission to implead private respondent in the constitutional petition which was granted and amended petition was submitted but no notice was served on the said private respondent---High Court disposed of constitutional petition with the direction to National Database and Registration Authority to decide the application of petition---National Database and Registration Authority while deciding application of petitioner blocked National Identity Card of private respondent---Contention of private respondent was that impugned order had been obtained through fraud and misrepresentation---Validity---Petitioner had not impleaded private respondent as party in the constitutional petition who was adversely affected---Service of private respondent was not effected after her impleadment in the constitutional petition---Constitutional petition was disposed of on the statement of petitioner with the direction to National Database and Registration Authority to decide his application which was not pending at that time and was filed subsequently after passing of impugned order---Private respondent who had been adversely affected by the impugned order was to be afforded opportunity of hearing---Constitutional petition for setting aside of impugned order was allowed---National Database and Registration Authority was directed to restore the position of data of private respondent in their record immediately--- Order accordingly.

Imdad Ali Unar for Petitioner.

Aslam Pervez Asstt. Attorney General for Respondent No.6.

Dilawar Qureshi for Respondent No.7.

Habib-ur-Rehman, A.D. Legal NADRA.

YLR 2020 KARACHI HIGH COURT SINDH 749 #

2020 Y L R 749

[Sindh]

Before Muhammad Junaid Ghaffar, J

SAFE MIX CONCRETE LIMITED through Company Secretary---Plaintiff

Versus

PAKISTAN through Secretary (Revenue Division) and 4 others---Defendants

C.M. No. 8874 of 2018 in Suit No.1180 of 2018, decided on 12th September, 2019.

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

----S. 20(c)---Jurisdiction of court---Principle---Provisions of S.20(c), C.P.C. confer jurisdiction on court in a civil suit when cause of action arises wholly or in part within territorial jurisdiction of a court---Suit is competent before a court where even a part or fraction of a cause of action arises---Only contents of plaint are to be looked into in deciding such matters.

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

-----Ss. 20, 9, O. VII, R. 10 & O. XXXIX, Rr. 1 & 2---Territorial jurisdiction of court---Plaint, return of---Scope---Plaintiff was taxpayer who was issued show-cause notice by defendant authorities on discrepancies found during audit and sought restraining order from court---Authorities assailed maintainability of restraining order on grounds that court lacked territorial jurisdiction---Validity---Held, in such matters it was to be seen what main relief was sought by plaintiff---Main relief sought by plaintiff was legality and jurisdiction in issuing show-cause notice by defendant authorities---Merely for fact that some letters/clarifications issued by Federal Board of Revenue were also impugned, no cause of action could be claimed to have accrued within territorial jurisdiction of court---Existence of plaintiff within territorial jurisdiction of court did not confer any such jurisdiction as no cause of action accrued within territorial jurisdiction of court either wholly or partly---Case of plaintiff was against defendant directly and it was only a consequential relief which was being claimed against other defendants---Such relief would only be available once it was granted as prayed against defendant---High Court declined to interfere in the matter and returned plaint under O.VII, R.10, C.P.C. as there was no territorial jurisdiction to pass any judgment or decree---Suit was disposed of accordingly.

Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Messrs Land Mark Associates through Partner v. Sindh Industrial Trading Estate Ltd. through Chief Executive Officer and another 2018 YLR 2143; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334 and Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others PLD 2009 Kar. 154 distinguished.

Murlidhar P. Gangwani (Engineer v. Engineer Aftab Islam Agha and others 2005 MLD 1506 and Messrs Dewan Scrap (Pvt.) Limited and another v. Customs, Central Excise and Sales Tax Appellate Tribunal and others 2003 PTD 2127 rel.

Ahmed Hussain for Plaintiff.

S. Mohsin Imam Wasti for Defendant No.2.

Ameer Bux Metlo for Defendant No.3.

YLR 2020 KARACHI HIGH COURT SINDH 760 #

2020 Y L R 760

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUMTAZUDDIN---Applicant

Versus

THE STATE---Respondent

Special Criminal Miscellaneous Application No.186 of 2016, decided on 12th October, 2018.

(a) Customs Act (IV of 1969)---

----S. 9---Notified place---Smuggling, cognizance of---Procedure---Matter of smuggling at notified place is required to be checked by Customs Officials only or any other Provincial or Federal Government Officer who has been notified by Federal Government to function as 'Officer of Customs'---Even if any other officer is authorized by Federal Government to function as Customs Officer, he cannot interfere in function of a regular Customs Officer at a notified place.

(b) Customs Act (IV of 1969)---

----Ss. 2(b), 6, 9, 161, 162 & 185-A---Criminal Procedure Code (V of 1898), Ss.265-K, 439 & 561A---Quashing of proceedings---Probability of conviction---Raid by Federal Investigation Authority (FIA)---Non-producing of incriminating articles before Trial Court---Effect---Accused was arrested by FIA officials by raid on airport and parts of weapons in question were recovered---Trial Court dismissed application of accused under S. 265-K, Cr.P.C.---Plea raised by accused was that FIA was not authorized to conduct raid as the same was duty of customs officials---Validity---Nothing was available on record which indicated that FIA officers who conducted raid at the airport and recovered alleged contraband articles were actually authorized for such function by Federal Government through special notification---FIA accepted that there was no such notification of authorization issued in their favour or any other prosecution witness to act as 'Customs Officer'---Without issuing a notification in 'Official Gazette', none of the raiding party was authorized to take action in respect of any offence punishable under Customs Act, 1969---Weapons/parts in question were not produced during examination of important prosecution witnesses before whom arrest and recovery took place---Items in question were required to be produced before Trial Court at the time of examination of said important prosecution witnesses as 'real evidence' to be identified as same items which were recovered from accused---No probability of conviction existed against accused persons---High Court acquitted accused and absconding co-accused persons of the charge as proceeding further would be a futile exercise---Application was allowed in circumstances.

PLD 1986 SC 192; 2011 PTD (Trib.) 174; 2005 PTD 23; 1991 PCr.LJ 644; PLD 1995 SC 34; 1993 PCr.LJ 500; 1980 PCr.LJ 663; PLD 1991 SC 630; PLD 1987 Kar. 399; PLD 1989 Lah. 435; 1977 PCr.LJ 346; 1980 PCr.LJ 116; SBLR 2011 Sindh 1565; 2011 MLD 1075; 2005 SCMR 1540; 1999 MLD 1632; 2011 SCMR 1957; PLD 2013 SC 401; PLD 1997 SC 275; 2002 SCMR 634 and PLD 2002 SC 298 ref.

----S. 139---Declaration of goods---Customs Officer, duty of---Scope---Mandatory for Customs Officer to provide an opportunity for declaring goods carried by passenger---If passenger declares goods he was carrying, his act of bringing said articles does not amount to an offence.

Feroz Rehman Batla v. The State 1980 PCr.LJ 663 rel.

Khawaja Shamas-ul-Islam along with Shehzad Mehmood, Taj Muhammad and Khalid Iqbal for Applicant.

Muhammad Javed K.K., Asst. Attorney General along with Inspector Siraj Panhwar, FIA.

YLR 2020 KARACHI HIGH COURT SINDH 843 #

2020 Y L R 843

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

ASAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 269 and Criminal Revision Application No. 238 of 2012, decided on 19th April, 2019.

(a) Criminal trial---

----Circumstantial evidence---Evidentiary value---Circumstantial evidence is considered as weak type of evidence---Yet, such weak evidence alone was no ground to record an acquittal---Principles.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

(b) Criminal trial---

----Circumstantial evidence---Scope---If all pieces made an unbroken chain, proving the guilt, the capital conviction could well be awarded.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Admission of accused---Effect---Prosecution case was that the accused committed murder of his wife/daughter of complainant by causing her knife and dagger injuries at her house---Record showed that in the case, prosecution examined a cameraman, who was serving in a TV Channel and recorded programme after the arrest of accused/appellant, they went to the police station and recorded the statement of the appellant in which he admitted his guilt---Multiple questions were put but the defence could not extract anything that the accused/appellant had given his statement under pressure and coercion---Prosecution examined complainant, who in his evidence deposed that about two and half years back the appellant and deceased contracted marriage but after one and half months, the appellant started maltreatment with the deceased and due to the intervention of naikmard, the quarrel was settled between the husband and wife---So many time his daughter tried to live with the complainant but the complainant did not allow her on the ground that he had five unmarried daughters if the deceased started residing in his house then no one could contract marriage with his five daughters---After committing the murder of deceased, her husband/appellant ranaway to his native town---Complainant along with Police Official went to his native town and arrested the appellant from the district jail and brought him at the police station for further investigation and on the pointation of the appellant, crime weapon/dagger was recovered from his father's house---Admission of the appellant came in media and newspaper---Prosecution examined a lady witness, who had also supported the version of complainant---Record, however, showed that defence brought nothing on record hence such circumstances did provide support to the admission---Prosecution evidence also found corroboration from the medical evidence with regard to the cause of death and time of the incident---Medical evidence showed that the cause of death of deceased was unnatural and thus, this also corroborated the evidence furnished by the complainant and his witnesses---Another piece of evidence connected the appellant with the commission of the offence---Evidence collected by the Investigating Officer found corroboration from the evidence of prosecution witnesses along with circumstantial evidence coupled with medical evidence which led towards the end that the accused/appellant was a real culprit, who had given incised/stab wounds to deceased from his choora/ dagger, resultantly, she died in his house and after committing the murder, the appellant locked the door of the house from outside and ran away---Appellant had failed to point out any material illegality or serious infirmity committed by Trial Court while passing the impugned judgment, which was based on evidence and the same did not call for any interference---Appeal was dismissed accordingly.

Mohsin Raza and others v. The State 2019 YLR 3; Naeem alias Gunda v. The State 2019 PCr.LJ 305; Imran alias Dully and another v. The State 2015 SCMR 155; Ghulam Abbas alias Hussain v. The State 2013 PCr.LJ 62; Noor Muhammad v. The State and another 2010 SCMR 97; Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336; Ghulam Akbar and another v. The State 2008 SCMR 1064; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Wazir Muhammad and another v. The State 2005 SCMR 277 and Abdul Sattar and others v. The State 2002 PCr.LJ 51 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the disclosure of accused---Reliance---Scope---Record showed that after the arrest the appellant disclosed that he had hidden the crime weapon in the house of his father, on such disclosure, the Investigating Officer and appellant had gone to the pointed place from where the crime weapon was recovered---Investigating Officer also received the report in positive which was sent to the Chemical Examiner for analysis of dry blood, white painted Kameez, black colour brazier, choora with wood hanger, which also supported the version of the complainant.

Shamsul Hadi for Appellant.

Shamshad Ali Qureshi for the Complainant.

Saghir Ahmed Abbasi, Asstt. Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 859 #

2020 Y L R 859

[Sindh]

Before Muhammad Shafi Siddiqui andAdnan Iqbal Chaudhry, JJ

Ms. UROOJ FATIMA and another---Petitioners

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and others---Respondents

C. Ps. Nos.D-6554 and 6439 of 2019, decided on 14th November, 2019.

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

----S. 33(2)---Pakistan Medical and Dental Council Ordinance (II of 2019), Ss. 3, 4, 42(2) & 50---MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, Rglns. 2(a), 7 & 9---General Clauses Act (X of 1897), S. 6---Constitution of Pakistan, Arts. 89 & 264---Admission criteria, change in---Amendment in regulations---Repeal of laws--- Effect--- Petitioners were candidates seeking admission in medical college but were denied admissions on grounds of change in criteria---Plea raised by petitioners was that Pakistan Medical and Dental Council Ordinance, 2019 was repealed and amended regulations stood repealed with the same---Validity---When Pakistan Medical and Dental Council Ordinance, 2019 was repealed by effect of Art. 89 of the Constitution, amended admission regulations also stood repealed and original admissions regulations were revived---On repeal of Pakistan Medical and Dental Council Ordinance, 2019, Council that was constituted thereunder which was different from Council constituted under revived Pakistan Medical and Dental Council Ordinance, 1962 also ceased to exist---Original Admissions Regulations and not amended Admissions Regulations that held field and under original Admission Regulations petitioners were eligible to apply for admission to a medical university/college---Denial of admission Form to petitioners on basis of amended admissions regulations was unlawful---Merit that would eventually determine whether petitioners succeeded in an admission to a medical university/ college---Petitioners and other candidates who were placed similar to petitioners and who were not otherwise ineligible under original admissions regulations were eligible to apply for admission to medical universities/colleges for session in question---High Court directed the admitting University to issue public notice inviting admission applications within specified time-line from candidates and to make all necessary arrangements as it deemed fit and expedient for providing such candidates with an opportunity to submit an admission Form to admitting university at earliest be that online or manually---High Court directed Pakistan Medical Commission under Pakistan Medical and Dental Council Ordinance, 2019 (including any succeeding or superseding authority) to facilitate admitting university in such regard---Constitutional petition was allowed accordingly.

Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 rel.

Moin Azhar Siddiqui for Petitioner (in C.P. No. D-6554 of 2019).

Nadir Khan Burdi for Petitioner (in C.P. No. D-6439 of 2019).

Suhail Hayat Khan Rana for Respondents.

Abdul Salam Memon along with Vice-Chancellor, LUMHS for Respondents.

Ali Safdar Depar, Assistant Advocate General Sindh for Province of Sindh.

Muhammad Nishat Warsi, Deputy Attorney General and Durdana Tanveer, Assistant Attorney General for Federation of Pakistan.

YLR 2020 KARACHI HIGH COURT SINDH 871 #

2020 Y L R 871

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

ABSAR AHMAD SIDDIQUI through Legal Heirs---Appellants

Versus

Messrs UNION BANK through Area/Regional Manager, Karachi and 4 others---Respondents

Civil Revision No. 208 of 2010, decided on 6th September, 2018.

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

----O. XLI, R. 31 & O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art.84---Money suit---Judgment in appeal---Points for determination, non-framing of---Effect---Appellate Court had not discussed the evidence of the parties and only agreed with the findings of Trial Court---Courts below had failed to adopt the provisions of Art. 84 of Qanun-e-Shahadat, 1984---Appellate Court was to thrash out entire evidence and adjudged the controversy in view of circumstances of the case---Appellate Court had not framed points for determination in the matter---Impugned judgment passed by the Appellate Court was set aside and matter was remanded for decision afresh---Revision was allowed, accordingly.

Muslim Commercial Bank Ltd., through General Attorney and another v. Amir Hussain and another 1996 SCMR 464; Allah Ditta and others v. Muhammad Sharif and others 2012 CLC 1274; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Moar through his legal heirs v. Member Board of Revenue, Sindh and others 2012 CLC 912 and Raja Nasir Khan v. Abdul Sattar Khan and another PLD 1998 Lah. 20 ref.

Hamid Qayoum and 2 others v. Muhammad Azeem through legal heirs and another PLD 1995 SC 381 and 1974 SCMR 411 distinguished.

Abdul Waheed v. Muhammad Bilal PLD 2005 Pesh. 19 and Mst. Sabahat Idrees and Chaudhry Muhammad Idrees v. Mst. Clari Beneditca Conville and others 2007 MLD 1732 rel.

(b) Appeal---

----Appeal being the continuation of original suit appellate Court had power to thrash out the entire evidence and scrutinize the available documents.

----S. 115---Revision---Scope---Scope of revision was limited to illegality, material irregularity or jurisdictional defect in the impugned judgment.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope.

High Court while exercising its jurisdiction conferred upon it under section 115, C.P.C. can interfere when the concurrent findings of facts based on insufficient evidence, non-reading or misreading of evidence, non-consideration of material evidence, erroneous assumption of facts patent, errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view has been taken which is not in consonance with the evidence.

Asmatullah v. Amantullah through Legal representatives PLD 2008 SC 155 rel.

(e) Administration of justice---

---Question of law could be raised at any stage.

Raja Nasir Khan v. Abdul Sattar Khan and another PLD 1998 Lah. 20 distinguished.

Ch. Muhammad Iqbal for Appellants.

Aimal Kansi for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 929 #

2020 Y L R 929

[Sindh]

Before Fahim Ahmed Siddiqui, J

OBAID JAMSHED---Applicant

Versus

The STATE---Respondent

Special Criminal Bail Application No.79 of 2019, decided on 3rd September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss. 2(37) & 33---Tax fraud, offences and penalties---Bail, grant of---Allegation against accused was that he being broker and consultant had facilitated the main accused in committing tax fraud/evasion worth million of Rupees---Nothing was available on record to establish the allegation that accused was getting share of 10% in the invaded tax money---Allegations were based upon extra-judicial confession of the accused, which was uncorroborated--- Nothing was available to establish that accused was in league with the main accused---Co-accused persons had succeeded in getting bail and case of accused was at par to them---Accused was admitted to bail, in circumstance.

Salman Raza Khan for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 968 #

2020 Y L R 968

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

DANISH NIAZI---Appellant

Versus

The STATE---Respondent

Spl. Crl. Anti-Terrorism Jail Appeal No.220 of 2018, decided on 25th April, 2019.

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

----Ss. 385 & 386---Anti Terrorism Act (XXVII of 1997), S. 7---Putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt and act of terrorism---Appreciation of evidence---Accused was charged for receiving Bhatta from the complainant---Record showed that direct evidence was available in shape of evidence of complainant, an owner of a pan shop and had paid Bhatta money to the accused/appellant and when he refused to pay Bhatta to the accused/appellant, he was threatened to be implicated in false narcotic cases---Complainant, under pressure and coercion, had paid Rs.5,000/- for the first time to the appellant as Bhatta and on the second time, complainant paid Rs.3,000/- where police arrested him on the spot and recovered Rs.3,000/- Bhatta money from the possession of the appellant along with pistol and other articles---Complainant had supported the contents of the FIR as well as memo of arrest and recovery, which found corroboration from the other witnesses---Said fact was sufficient to hold that the accused/ appellant had committed the offence for which he had been charged---In the present case, eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manner---Witnesses were cross-examined by the defence at length, they remained consistent on all material points---Accused/appellant had failed to bring on record material to show animosity or ill-will with the complainant and the prosecution witnesses, thus, the competence of prosecution witnesses was rightly believed by the Trial Court---Prosecution had successfully proved its case against the accused/appellant beyond any shadow of a doubt, in circumstances---Appeal was dismissed accordingly.

(b) 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.

----Procedural formality--- Scope---Procedural formality could not be insisted at the cost of completion of an offence---If an accused was otherwise found connected, then mere procedural omission and even allegation of improper conduct of investigation would not help the accused.

The State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

Nadeem Ahmed Azar for Appellant.

Saghir Ahmed Abbasi, Assistant Prosecutor General, Sindh for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 979 #

2020 Y L R 979

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

MUHAMMAD USMAN---Petitioner

Versus

AMANULLAH and 15 others---Respondents

C.P. No.D-217 of 2013, decided on 10th October, 2019.

Civil Procedure Code (V of 1908)---

----S. 48---Limitation Act (IX of 1908), Art. 181---Execution petition---Limitation---Execution petition was dismissed being time barred---Validity---First application for execution of a decree would be governed by Art. 181 of Limitation Act, 1908 and rest of the applications made thereafter would be governed by six years period of limitation as provided by S.48, C.P.C.---Petitioner had filed first execution petition after the period of five years, which was time barred---No illegality or irregularity had been committed by the Courts below while passing the impugned orders---Revision was dismissed, in circumstances.

Islam Din and 11 others v. Muhammad Shafi and another 2000 YLR 2684; Raza Muhammad Khan and others v. Jalal-ud-Din Khan and others 1988 CLC 30; Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759 and House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through L.Rs 2007 SCMR 1929 rel.

Arbab Ali Hakro for Petitioner.

None present for Respondents Nos.1 to 14.

Allah Bachayo Soomro, Addl. A.G. for the Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 992 #

2020 Y L R 992

[Sindh]

Before Nadeem Akhtar, J

NASREEN KAUSAR---Petitioner

Versus

Mst. HOOR AFZAL and 2 others---Respondents

Constitutional Petitions Nos. S-223 and S-224 of 2011, decided on 19th April, 2019.

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

----Ss. 18 & 15---Change of ownership---Requirements---Default in payment of rent---Eviction petition was allowed on the ground of default in payment of rent---Contention of tenant was that he had paid rent to the previous owner of demised premises---Validity---Subsequent owner of demised premises was required to send a written intimation by registered post to the tenant intimating him with regard to change of ownership---New landlady had sent written intimation with regard to change of ownership to the tenant through urgent mail service and not by registered post---Landlady had not complied with the requirements of S. 18 of Sindh Rented Premises Ordinance, 1979---Tenant had failed to prove that she had paid rent to the previous owner of demised premises after having knowledge of change of ownership---Tenant was bound to pay rent to the changed owner within sixty days after having knowledge of change of ownership which had not been paid---Tenant had committed default in payment of rent and she was liable to be evicted---Constitutional petition was dismissed, in circumstances.

Mst. Sadia Awan v. Daniyal Pervaiz and others 2007 SCMR 174; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Hirjibhai Behrana Dar-e-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, through Partner 2001 SCMR 1888; State Life Insurance Corporation of Pakistan, Karachi's case PLD 1993 Kar. 642; Habib Bakhsh v. Mst. Bilquis Begum and others 1995 SCMR 448; Messrs Habib Bank Limited v. Sultan Ahmad and another 2001 SCMR 678; Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871; Mahmood Akbar Alvi v. Mst. Ayesha Sultana 1998 CLC 894; Shahnaz Begum v. Ikhlas Ahmad 1990 CLC 904; Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561; Messrs Mukhtar Brothers v. Mst. Hawa Bai Admani and 9 others 1992 MLD 1045; Muhammad Raghib v. Abdul Razzak PLD 1994 Kar. 20; Messrs Bamboat & Co. v. Messrs G.B. Construction Co. 1995 MLD 816 and Syed Hamid Hussain v. Mst. Humaira Ghiasi 1986 CLC 1873 ref.

Abdul Kadir and another v. Muhammad Yaqoob 1991 SCMR 1029 and Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400 rel.

Syed Amjad Hussain for Petitioner.

Noor Ahmed Malik Mahmood for Respondent No.1.

Respondent No.2 in person.

Respondent No.3 in person.

YLR 2020 KARACHI HIGH COURT SINDH 1001 #

2020 Y L R 1001

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

RUSTAM---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C. P. No. S-1672 of 2018, heard on 4th March, 2019.

Constitution of Pakistan---

----Art. 35---Protection of family, etc.---Runaway marriage---Scope---Petitioner claimed that his daughter-in-law had contracted marriage of her free will with his son therefore she might be given protection---Respondents (relatives of the daughter-in-law of petitioner) claimed that she was earlier married---Article 35 of the Constitution guaranteed protection to the family and ensured that no unwarranted exposure would be made to such a holy alliance created between two individuals--- Respondents could approach the civil court for redressal of their grievances---Petitioner's daughter-in-law had made a statement before the court that she wanted to go with her husband and the petitioner---Constitutional petition was disposed of with direction to the police not to cause harassment and not to arrest anyone on the allegation that the lady had been abducted by the petitioner's son.

Willayat Khan for Petitioner.

Khadim Hussain Soomro for Respondents Nos.12 to 18 along with Respondent No.14.

Nasrullah Khaskeli, State Counsel.

YLR 2020 KARACHI HIGH COURT SINDH 1009 #

2020 Y L R 1009

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD AFFAN through Mst. Rafia Aijaz---Petitioner

Vsersus

WASIF KHAN and 2 others---Respondents

Constitutional Petition No. S-1199 of 2018, decided on 17th September, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Family Courts Rules, 1965, R. 6---Suit for recovery of maintenance allowance---Plaint, return of---Plaintiff through his mother filed a suit for recovery of maintenance allowance before the Family Court within the local limits of which his mother was residing---Family Court returned the plaint for presentation before the Court within the local limits of which father of minor was residing---Validity---Minor son had filed suit for recovery of maintenance allowance through his mother before the Family Court where not only cause of action had arisen in his favour but both the minor and his mother were also residing within the territorial jurisdiction of said Court---Impugned order passed by the Family Court was illegal having no legal effect and same was set aside---Plaintiff was directed to re-present the plaint before Family Court within territorial jurisdiction of which his mother was residing---Family Court was directed to entertain and decide the suit on merits---Constitutional petition was disposed of, in circumstances.

Mst. Shabana Begum and 2 others v. Naeem-u-Din 2015 MLD 708 ref.

Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335 and Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

Muhammad Akbar Awan for Petitioner.

Ziauddin Junejo, Addl. A.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 1026 #

2020 Y L R 1026

[Sindh]

Before Salahuddin Panhwar, J

Messrs K-ELECTRIC SUPPLY COMPANY LIMITED through CEO/AUTHORIZED OFFICER and 2 others---Appellants

Versus

FAYYAZ AHMED and 2 others---Respondents

Second Appeal No. 68 of 2015, decided on 30th October, 2019.

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

----S. 100---Second appeal---Principle---Decision normally would not be disturbed in second appeal unless it is shown that decision is contrary to law or some material questions of law, materially effecting decision, were ignored.

Messrs Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. 2013 SCMR 1570 rel.

(b) Suit for damages---

----Irregular electricity bills---Wilful harm, mental agony and suffering---Proof---Damages---Appellant, Electricity Supply Company continuously issued wrong meter readings and bills to respondent---Trial Court ordered Electric Company to pay damages to respondent for causing willful harm and financial loss---Validity---Right of being compensated legally could not be obtained without resort to available legal remedies---Plea of Electric Company that respondent had no cause of action carried no weight---Issuance of wrong meter readings was not disputed by company hence they could not come with the plea that respondent had not suffered mental agony by acts of their officials---Proofs of suffering and agony could not be demanded in shape of written documents but may well be proved by circumstances---Respondent established continuity of wrong actions on part of appellants as well as his approaches for redressal---Company legally could not take an exception to prove bona fide of its actions---Burden was upon company and a failure in such regard would always burden it to bear consequences as failure thereof burdened them to compensate the aggrieved---High Court declined to interfere in order passed by Trial Court and Lower Appellate Court as prima facie there appeared no illegality in judgment and decree of court below---Second appeal was dismissed in circumstances.

PLD 1975 SC 295; PLD 2006 Kar. 621; 2007 SCMR 1821 and 2008 YLR 206 ref.

Province of Sindh v. Kabir Bokhari 2016 SCMR 101 and Malik Gul Muhammad Awan v Federation of Pakistan 2013 SCMR 507 rel.

Ameeruddin for Appellant.

Respondents in person.

YLR 2020 KARACHI HIGH COURT SINDH 1044 #

2020 Y L R 1044

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

MUHAMMAD SOOMAR---Petitioner

Versus

PROVINCE OF SINDH through Secretary Irrigation Department, Sindh and 7 others---Respondents

Constitutional Petition No.D-43 and C.M.A. No.144 of 2013, decided on 24th April, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Factual controversy---Equitable relief---Scope---Petitioner claimed that he was in possession of government land; that he had applied for its lease with the concerned authorities by making an application and till the time such application was disposed of by the authorities concerned, he might not be dispossessed from the said land---Authorities contended that the petitioner was not in possession of the said land---Validity---Two rival claims with regard to the possession of the land was put forward by both the parties; such controversy being factual in nature could not be resolved by the High Court in exercise of its constitutional jurisdiction--- Even if petitioner's contention that he was in possession was believed even then his possession was without authorization---Petitioner's status over the land was that of an encroacher/ trespasser--- Encroacher / trespasser could hardly ask for equitable relief---Constitutional petition was incompetent and the same was filed by the petitioner to protect his unlawful possession over the public property---Constitutional petition was dismissed, in circumstances.

Tariq G. Hanif Mangi for Petitioner.

Sarfraz A. Akhund for Private Respondents.

Agha Ather Hussain Pathan, A.A.G., Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 1045 #

2020 Y L R 1045

[Sindh]

Before Abdul Maalik Gaddi, J

SAIFULLAH

and another---Applicants

Versus

The STATE---Respondent

Bail Applications Nos. 1336 and 1337 of 2019, decided on 26th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 322 & 34---Qatl-bis-sabab, act done by several persons in furtherance of common intention---Bail, grant of---Further inquiry---Allegations against the accused were that they were responsible for the offence as alleged in the FIR as well as in the charge sheet---Section 322, P.P.C., though not bailable, yet was not punishable with any period of imprisonment besides Diyat---Question as to whether the punishment of payment of Diyat amount would bring the case of the accused within the compass of prohibitory clause attached to S.497(1), Cr.P.C. or whether the S. 322, P.P.C., would be applicable in the present case---Deep merits of the case, at bail stage, could not be appraised and accused could not be kept in jail for a matter, which still required further probe as to whether it was an offence of qatl-e-khata/qatl-bis-sabab or intentional act of the accused---Accused, in such like situation, would be entitled to concession of bail under S. 497(2), Cr.P.C., on the point of further enquiry---Accused were not previous convicts or remained indulged in such type of activities---Accused were in jail since their arrest---Bail was granted.

Farjad Ali Khan for Applicant (in Cr. Bail Applications Nos.1336 and 1137 of 2019).

Abrar Ali Khichi, Additional Prosecutor General, Sindh for the State.

None present for the Complainant.

YLR 2020 KARACHI HIGH COURT SINDH 1053 #

2020 Y L R 1053

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito and Mrs. Rashida Asad, JJ

GREESH KUMAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

Constitutional Petitions Nos. D-1017, D-1454 and D-1607 of 2019, decided on 18th December, 2019.

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

----Ss. 9(a)(iv)(vi)(xii) & 9(b)---Consti-tution of Pakistan, Art. 199---Pre-arrest bail, refusal of---Illegal appointments---Prima facie case---Mala fide---Proof---Accused persons were officials in education department and had allegedly involved in making fake appointments and causing loss to national exchequer---Validity---Accused persons were holders of public office and allegations levelled against them were very serious in nature and had adverse effect on public at large---Allegations were supported by documentary evidence which prima facie connected accused persons with commission of offence that accused had misused their public authority by making false/fake appointments as well as issuing/releasing salaries causing loss to national exchequer--- Sufficient incriminating material was collected by authorities in shape of relevant documents viz., offer letters, appointment orders, salary bills, cheques and debit vouchers which bore signatures of accused persons connecting them with alleged white collar crime---Only a tentative assessment was to be made at bail stage and prima facie there was sufficient material available on record to connect accused persons---High Court declined to grant bail to accused persons as no mala fide on part of authorities or investigating officer was pointed out---Pre-arrest bail was dismissed in circumstances.

Chairman, National Accountability Bureau, Islamabad through Prosecutor-General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif and 2 others PLD 2019 SC 445 rel.

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

----S. 9(a)---"White collar crime"---Nature---White collar crimes are generally of an intricate and complex nature---Whole transaction and each component part of scam needs to be viewed in a holistic manner and not in isolation.

Pervaiz Tariq Tagar for Petitioner (in C.P. No. D-1017 of 2019).

Nandan A. Kella for Petitioner (in C.P. No. D-1454 of 2019).

Ali Ahmed Palh for Petitioner (in C.P. No. D-1607 of 2019).

Jangu Khan, Special Prosecutor NAB and Zulfiqar Ali Rajput, Assistant Attorney General for Pakistan for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 1058 #

2020 Y L R 1058

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

MUHAMMAD AZAM BHATTI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-99 and Confirmation Case No. D-06 of 2012, decided on 28th November, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Ocular and circumstantial evidence---Value---Accused was charged for committing murder of his mother---Complainant having expired could not be examined before the Trial Court---Incident was un-witnessed because the offence was committed inside the house of accused-appellant--- Motive of committing murder of deceased had been disclosed by accused-appellant himself in his confessional statement that his mother used to insist him to do work---First Information Report was lodged by complainant, who was father of the accused-appellant---No enmity or interest to falsely depose in the case had been alleged against author of FIR, as such his evidence could not be discarded from consideration---If deceased lady was lastly seen alone in the company of the accused shortly before the time of incident, she was presumed to have been killed at the place of occurrence---Reasonable inference could be drawn that accused-appellant was responsible for the murder of deceased--- First Information Report was lodged on the date of incident without any delay by complainant---Accused was arrested after 4 days in presence of mashirs and on his pointation blood-stained churri and hatchet were also recovered by the police--- Statement / evidence of prosecution witness found support from the evidence of other witness---Appeal was dismissed, in circumstances.

2001 SCMR 1914 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra-judicial confession---Scope---Accused was charged for committing murder of his mother---Accused-appellant had admitted his guilt before witnesses and stated that his mother/deceased was always insisting him for doing some work on which he was annoyed and committed her murder by causing churri and hatchet blows to her---Two prosecution witnesses were real cousins of the accused-appellant, who in their evidence before the Trial Court had deposed that accused-appellant admitted before them and the complainant to have committed the murder of his mother (deceased)---Investigating Officer had supported said piece of evidence by saying that complainant in his further statement had stated before him that accused-appellant had admitted his guilt before him---Evidence of said two witnesses was without any defect and doubt, being real cousins, having no enmity with accused-appellant---Evidence furnished by said witnesses appeared to be trustworthy, independent and dis-interested, therefore, extra judicial confession so made by the accused-appellant before the said two witnesses could be used against him---Appeal was dismissed in circumstances.

Bahadur Khan v. The State PLD 1995 SC 336 rel.

----Related witnesses---Statement of related witnesses---Scope---Evidence of witnesses related inter se could not be disbelieved unless biased, enmity etc was alleged and proved against them.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement---Scope---Accused was charged for committing murder of his mother---Accused recorded his confessional statement under S.164, Cr.P.C. wherein he had admitted that he had committed the murder of his mother---Nothing was available on record that such confessional statement of the accused-appellant was the result of any pressure or coercion---Record showed that confessional statement was recorded in proper manner after observing all legal formalities by the Judicial Magistrate---Mere retraction from such confession was not sufficient to discard same from consideration---Medical Officer had also supported the injuries on the person of deceased to have been caused with sharp cutting weapons as was confessed by the accused-appellant---Medical evidence was consistent with judicial confession as made by the accused-appellant---Confessional statement recorded without waste of time after observing all legal formalities appeared as voluntarily, truthful and confidence inspiring, which required no further corroboration---Appeal was dismissed in circumstances.

2010 SCMR 457 rel.

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

----S. 302(b)--- Qatl-i-amd--- Criminal Procedure Code (V of 1898), S. 342---Appreciation of evidence---Examination of accused---Scope---Accused was charged for committing murder of her mother---Record showed that in his statement recorded under S.342, Cr.P.C. accused-appellant pleaded that his cousins committed murder of his mother and due to dispute over matrimonial affairs they had falsely involved him in the case---No suggestion to such effect was made to witnesses while recording their evidence---Further, the accused-appellant had not brought on record any evidence to support his contention with regard to his false implication in the commission of the offence due to enmity, as such, the plea taken by the appellant was without force---Appeal was dismissed accordingly.

Mian Taj Muhammad Keerio for Appellant.

Ms. Rameshan Oad, A.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1071 #

2020 Y L R 1071

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

MUHAMMAD NAVEED alias BAGRI and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-38 of 2018 and Criminal Revision Application No.D-33 of 2017, decided on 5th April, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party made firing upon the complainant party, due to which brother of the complainant died---Ocular and medical evidence---Contradictions---Complainant in FIR and in his deposition had stated that the deceased was shifted to hospital in injured condition by them but during cross-examination, the Medical Officer said that the injured was brought by a Police Official in injured condition but he was not in a condition to give expression of any kind before him---Name of said Police Official appeared in the calendar of witnesses but he was not examined---Evidence of said witness was purposely withheld by the prosecution and being the best evidence, it's withholding without any explanation went against the prosecution---Record showed that deceased was first attended by Casualty Medical Officer but the said Casualty Medical Officer was not examined before the Trial Court---Non-examining of the said witness was sufficient to cause a fatal dent to the prosecution case---Inspite of being armed with pistol, the accused persons instead of causing any harm to the complainant party, ran away from the scene of incident after leaving/throwing pistol---Pistol and empty were recovered from the scene of offence but the entire prosecution case was silent about sending the same for Forensic Science Laboratory and even the same was not produced and marked as article during trial and even not placed before the complainant and eye-witness for identifying the said article that it was the same pistol which was used during the commission of offence---Motive for the offence was not described within the body of FIR---Complainant in FIR had stated that when they were taking their injured brother to hospital, the deceased brother had described them that all the four accused used to come at the store and on some altercation accused-appellant fired upon him---Complainant had mentioned in the FIR that the deceased brother had informed him that the accused persons had not snatched any money or his mobile phone; on the contrary, during examination-in-chief, witness/brother of deceased stated that his deceased brother had informed him that the accused persons had tried to commit dacoity and on his resistance, accused made straight fire upon him---Injured was taken to hospital in somebody's car but neither the said person was examined nor the car was produced during trial---Eye-witness during cross-examination stated that no post-mortem of his deceased brother was conducted at hospital and dead body of deceased was handed over to them at about 1.45 a.m. and they took the same at home---Medical Officer in his deposition had deposed that on 9.3.2013 at about 2.40 a.m. he received the dead body of the deceased for post-mortem and he conducted the post mortem of deceased---Neither the recovered pistol nor empty was shown and confronted as a piece of evidence during recording of statement of the accused under S. 342, Cr.P.C.---Circumstances established that prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about more than five days in lodging FIR---Effect---Prosecution case was that the accused party made firing upon the complainant party, due to which brother of the complainant died---Record showed that incident took place on 9.3.2103 at 12.30 p.m.; FIR was lodged on 14.3.2013 at 3.00 p.m. after the delay of more than five days---Said period was sufficient to attract the possibility of consultation and deliberation.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Contradictions in the statement of witnesses---Effect---Prosecution case was that the accused party made firing upon the complainant party, due to which brother of the complainant hit and died---Complainant had stated that while taking the injured brother to the hospital, the car was driven by its owner while he (complainant) was sitting on the back seat with his injured brother, while his brother/eye-witness was sitting on the front seat---Eye-witness had stated that he was sitting on the back seat with his deceased brother while complainant was sitting on the front seat---Prosecution witness in his examination-in-chief had stated that the police had visited the scene of offence and collected a 30-bore pistol and one empty from there while the same witness during cross-examination said that the pistol was handed over to the police by complainant in open condition, without any wrapping---Prosecution had failed to prove its case against the accused beyond the reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentence recorded by the Trial Court.

Nandan A. Kella for Appellants (in Criminal Appeal No.D-38 of 2018) and for Respondents (in Criminal Revision Application No.33 of 2017).

Nazeer Ahmed A. Bhatti for Applicant (in Criminal Revision Application No.33 of 2017).

Ms. Rameshan Oad, Assistant Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1080 #

2020 Y L R 1080

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

RIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-100 of 2018, decided on 28th November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence pending appeal--- Scope--- Appellant sought suspension of sentence and his release on bail on the ground that the sentence awarded to him by the Trial Court was imprisonment for two years and that appeal would take sufficient time in its disposal---State recorded its "no objection" for suspension of sentence on the ground that the sentence was short one and appellant was convicted under bailable offence---Validity---Appellant was convicted and sentenced to suffer rigorous imprisonment for two years by the Trial Court, which was a short sentence and there was no likelihood that his appeal could be heard and decided in near future due to backlog of cases in the court---Application for suspension of sentence was allowed, in circumstances.

Sameeullah Rind for Appellant.

YLR 2020 KARACHI HIGH COURT SINDH 1083 #

2020 Y L R 1083

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD AMIR and another---Applicants

Versus

The STATE---Respondent

Special Criminal Bail Applications Nos.68 and 50 of 2019, decided on 24th July, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Sales Tax Act (VII of 1990), Ss. 2(37) & 33---Tax fraud, offences and penalties---Bail, grant of---Further inquiry---Allegation against the applicants/accused was that they being Clearing Agent and broker had facilitated the main accused in committing tax fraud/evasion worth million of Rupees---Applicants had acted in the case after going through the documents i.e. the import documents and registration certificate with Sales Tax Department for getting benefit of SRO No.1125(1)/2011 dated 31.11.2011---Applicants after going through Sales Tax Registration Certificate were legally not bothered to ensure whether the registered person was actually having a manufacturing unit for using the imported goods or not---Nothing had been collected by the investigating agency that accused were in conscious knowledge of the fact that the main accused had got himself registered with sales tax authorities by playing some trick---Convincing evidence was not available to believe that the accused were having any nexus with the main accused---Case of accused was that of further inquiry---Accused were admitted to bail, in circumstances.

Aqil Ahmed for Applicant (in Spl. Cr. Bail Application No. 50 of 2019).

Muhammad Barkat for Applicant (in Cr. Bail Application No.68 of 2019).

Ashiqe Ali Anwar Rana, Special Prosecutor Customs for Respondent.

Zahid Khan, Assistant Attorney General for Federation of Pakistan.

YLR 2020 KARACHI HIGH COURT SINDH 1094 #

2020 Y L R 1094

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL HAMEED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1075 of 2019, decided on 22nd August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Bail, grant of---Further inquiry--- Allegation against accused was that he demanded Rs.3,50,000/- from the complainant for job of a Junior Clerk in the Labour Department for which he received Rs.10,000/- as illegal gratification and remaining amount was promised to be paid---Prosecution case was based upon the evidence of police officials, therefore, their evidence were required to be minutely scrutinized at the time of the trial---First Information Report was delayed by three days for which no explanation had been furnished---Yet to be determined whether recovered money was the part of the payment of illegal gratification allegedly settled between the accused and complainant or otherwise---Offences did not fall within the prohibitory clause of S.497, Cr.P.C.---Nothing was on record that accused remained indulging in such type of cases in the past, therefore his case required further probe---Bail was allowed to accused, in circumstances.

Nasir Rizwan Khan for Applicant.

Sagheer Abbasi, A.P.G., Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1103 #

2020 Y L R 1103

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mir MUHAMMAD RAZA---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary and 5 others---Defendants

C.M.A. No.133 of 2019 and C.M.A. No.17292 of 2018 in Suit No. 2270 of 2018, decided on 10th October, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2--- Employee of a Corporation--- Verification of educational credentials--- Suit for declaration and permanent injunction---Temporary injunction, grant of---Employer could verify educational credentials of an employee and if any adverse action had been taken then employee had right of appeal in accordance with law---Plaintiff had no prima facie case and balance of convenience in his favour---If any irreparable loss was caused to the plaintiff/employee then same could be compensated after the trial if plaintiff/succeeded---Passing of injunction in favour of plaintiff was not warranted in circumstances---Application for grant of temporary injunction was dismissed.

Basharat Hussain and another v. Provincial Government through Chief Secretary and 4 others 2018 PLC (C.S.) Note 151' Nazar Hussain and others v. Deputy District Education Officer and others 2003 SCMR 1269 and Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 ref.

Umar Lakhani for Plaintiff.

Fayaz Ali Metlo for Defendants Nos. 2, 3 and 4.

YLR 2020 KARACHI HIGH COURT SINDH 1160 #

2020 Y L R 1160

[Sindh (Sukkur Bench)]

Before Rasheed Ahmed Soomro and Zulfiqar Ali Sangi, JJ

MOMIN ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-103, Criminal Appeals Nos. D-116 to D-126 of 2019, decided on 7th January, 2020.

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

----Ss. 324, 353 & 427--- Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Criminal Procedure Code (V of 1898), Ss. 342 & 410---Attempt to Qatl-i-amd, assault on public servant and damage to property---Appreciation of evidence---Crime weapon, non-exhibition of---Incriminating articles not put to accused--Benefit of doubt---Complainant was police officer who lodged FIR against accused persons for attempting to commit qatl-i-amd, damage to government property and obstruction to discharge duties by officials---Witnesses gave contradictory evidence on important aspects of case like recovery of weapons, damage to police mobile, encounter in between police and accused persons, arrest of accused persons at spot, recording of statements under S. 161, Cr.P.C., sending weapon for chemical examination, safe custody of weapons till reaching chemical examiner---Weapons and hand grenades were not exhibited in evidence during trial as articles recovered from accused persons though were available in court were not shown to accused persons at time of recording their statements under S. 342, Cr.P.C.---Such created dent in case of prosecution as important witness which was Bomb Disposal Unit expert was not examined by prosecution who defused hand grenade and issued clearance certificate and technical report---High Court set aside conviction and sentence of accused persons by Trial Court and acquitted them of charge---Appeal was allowed.

2019 YLR 552; 2019 MLD 1659 and Shahab-u-Din v. The State 2019 YLR 1277 ref.

Abid and another v. The State 2019 YLR 613 rel.

(b) Criminal trial---

----Benefit of doubt---Presumption of innocence---Principle---Heinous nature of offence is not sufficient to convict accused as accused continues with presumption of innocence until found guilty at the end of trial---Prosecution is bound to establish case against accused beyond any shadow of reasonable doubt by producing confidence inspiring and trustworthy evidence---If a single circumstance creates doubt in prosecution case, its benefit was to go to accused not as a matter of grace or concession but as a matter of right---Acquittal of ten guilty persons is preferred to conviction of a single innocent person---Very high standard of proof is required to establish culpability of an accused person.

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 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

Rukhsar Ali Junejo for Appellants.

Syed Sardar Ali Shah, D.P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1179 #

2020 Y L R 1179

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MOHAMMAD ARIF---Plaintiff

Versus

Mrs. UZMA JAWAID and 2 others---Defendants

Suit No. 432 of 2015, decided on 30th December, 2019.

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

----Ss. 12, 22 & 42---Contract Act (IX of 1872), Ss. 51 & 55---Limitation Act (IX of 1908), Art. 113---Suit for specific performance and damages---Limitation---Reciprocal performance---Time as essence of contract---Plaintiff was aggrieved of failure by defendants to fulfill their part of contractual obligation and perform sale agreement of suit property---Defendants assailed failure on grounds that balance amount was not paid and agreement stood cancelled and amount forfeited---Validity---Suit was filed within limitation period and a substantial amount was already lying with defendants---Balance amount was deposited with court thus suit was maintainable---Payment of full sale price was dependent on clearing of dues towards property tax and utility bills---Reciprocal promises required to be performed by both plaintiff as vendee and defendant as vendor according to S. 51 of Contract Act, 1872---Onus was on plaintiff to prove his claim of damages and compensation---No positive and convincing evidence was led in support of pleading of plaintiff that he had already made initial investment for starting his business---Suit was to be decreed to extent of specific performance, therefore, awarding damages in such circumstances was not necessary---Suit was decreed accordingly.

Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Tee Jays Exclusive (Pvt.) Ltd. through Managing Director and another v. Muhammad Naveed PLD 2017 Sindh 88; Gul Rasheed Khan and 3 others v. Israr Khan and 3 others 2016 YLR 1229; Noor Muhammad v. Fazal Mahmood and others 2009 YLR 2359; Fazalur Rehman through Legal Heirs and others v. Mst. Batul and others 1997 MLD 880; Kaniz Fatima and another v. Sh. Muhammad Sohail and 7 others 2003 CLC 923; U Tha Nyo and another v. M. M. R. M. Chettyar Firm and another AIR 1938 Rangoon 367; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Abbas Ali v. Liaqat Ali and another 2013 SCMR 1600; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696; Hamood Mehmood v. Mst. Shabana Ishaque and 3 others 2018 YLR 713 and Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 ref.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Sale agreement---Attesting witnesses, production of---Principle---When sale agreement is an admitted document then non-production of two attesting witnesses is not fatal in such regard.

Ms. Saman Rafat Imtiaz for Plaintiff.

Malik Altaf Javed for Defendants Nos. 1 and 2.

Nemo for Defendant No.3.

YLR 2020 KARACHI HIGH COURT SINDH 1225 #

2020 Y L R 1225

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito and Mrs. Rashida Asad, JJ

TALAT PARVAIZ and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-27 of 2018, decided on 4th December, 2019.

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

----Ss. 9(c), 25 & 29---Criminal Procedure Code (V of 1898), S. 103---Recovery of narcotics---Appreciation of evidence---"Possession"---Proof---Charas weighing 100 kilograms was recovered from toolbox of the troller driven by accused persons---Trial Court convicted both the accused persons and sentenced them to imprison for life---Validity---Accused persons were drivers of troller who were found responsible for transporting huge quantity of narcotic substance and had prior knowledge and awareness of narcotics in their vehicle---Such huge quantity of narcotics was not kept in toolbox of vehicle without prior knowledge of drivers which remained in possession and control of accused persons from their village to place of recovery---Accused persons being drivers were fully responsible for transporting such huge narcotics in troller---High Court declined to interfere in conviction and sentence awarded by Trial Court to accused persons as prosecution had succeeded to bring guilt of accused persons home and proved its case beyond any shadow of doubt---Accused persons failed to point out any material illegality or serious infirmity committed by Trial Court while passing judgment which was based on proper appreciation of evidence---Appeal was dismissed in circumstances.

Agha Qais v. The State 2009 PCr.LJ 1334; Abdul Waqar v. The State 2018 YLR 2358; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Nazeer and another v. The State 2014 PCr.LJ 1358; Abdul Ghani v. The State 2019 SCMR 608; Shakeel alias Hakla v. The State 2018 MLD 1396 and Miandad v. The State 2019 YLR 954 ref.

Kashif Ameer v. The State PLD 2010 SC 1052 and The State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Recovery of narcotics---Evidence of police officials---Principle---Applicability of S. 103, Cr.P.C. in narcotics cases has been excluded and non-association of any private person as witness is not a serious defect to vitiate conviction---Police officials are competent witnesses and their evidence cannot be discarded only for the reason that they are police officials---Evidence of police official must be straightforward and confidence inspiring---Prosecution witnesses being police officials by itself cannot be considered a valid reason to discard their statements/evidence.

Zaffar v. The State 2008 SCMR 1254 rel.

----Witness---Official witness, evidence of---Principle---Mere status of one as official cannot alone prejudice competence of such witnesses until and unless he is proved to be interested and has a motive to falsely implicate the accused or has previous enmity with person involved.

Farooq v. The State 2008 SCMR 970 rel.

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

----S.29---Narcotic substance---Proof---Report of Chemical Examiner regarding charas is sufficient to prove that substance recovered from accused can be used to cause intoxication.

Sajjad Ali Shah and Ayaz Ali Gopang for Appellants.

Ms. Safa Hisbani, A.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1239 #

2020 Y L R 1239

[Sindh]

Before Fahim Ahmed Siddiqui, J

KHUSRO MIRZA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1523 of 2018, decided on 24th July, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Pre-arrest bail, refusal of---Accused gave the highest bid and handed down a cheque amounting to Rs. 1,76,25000/- as 25% of hammer-down amount, which was presented through banking channel and same was bounced---Nothing was on the record to show that prior to lodgement of FIR, accused had withdrawn his offer or preferred any request before the executing Court for his inability to purchase the property---Cheque was given by the accused to a Court as a successful bidder, as such it was in respect of a future obligation created in respect of the auction proceeding in which he had participated---Cheque having been given as 25% of auction price offered by him, could not be negotiated and accused never contacted the Presiding Officer or the Court staff regarding the same, which attracted dishonesty on the part of accused---Neither the FIR could be termed as false or fabricated nor there was any question of malice and ulterior motive, as such no ground of extending extraordinary relief was available in favour of accused---Pre-arrest bail application was dismissed, in circumstances.

Muhammad Mushtaq and Wajid Hussain for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 1257 #

2020 Y L R 1257

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD ZAHID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 436 of 2019, decided on 9th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 223, 224 & 225---Escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person---Bail, grant of---Case had been challaned and accused was no more required for investigation---All provisions of law applied in the FIR against accused were either bailable or their punishment did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail, in circumstances, was a rule and refusal an exception---Almost five months had passed since the accused was behind the bars but trial had not commenced---No exceptional circumstance appeared in the case to withhold bail to accused---Co-accused, who was the main culprit, was granted bail, as such the case of the accused was on better footings---Following the rule of consistency, present accused was also entitled for bail---Accused was admitted to bail, in circumstances.

Zakir Hussain Pirzada for Applicant.

Abdullah Rajput, Deputy Prosecutor General for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1263 #

2020 Y L R 1263

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

KHURRAM ABDUL JABBAR through Legal representative---Appellant

Versus

SIKANDAR HAJI HASHIM and 2 others---Respondents

High Court Appeal No. 377 of 2018, decided on 5th September, 2019.

Civil Procedure Code (V of 1908)--

----S. 12(2)---Judgment, setting aside of---Collusion---Proof---Plaintiff was ex-husband of defendant who filed suit regarding plot in question in which a consent decree was passed---Appellant sought setting aside of consent decree on plea of fraud committed in collusion by plaintiff and defendant---Validity---Although it was contended by appellant that plaintiff was in league with defendant but nothing concrete or material could be pointed out by him regarding such collusion between the two---Judgment/decree passed by Superior court of a foreign country made it evident that marriage of both plaintiff and defendant ended in divorce---Plaintiff and defendant in such strained relations could not be in league to play fraud with appellant---Some fraud might have been committed by defendant as at time of purportedly issuance of receipt she was well aware that she could not enter into such transaction on account of decree passed by foreign court as well as subsequent agreement with plaintiff---If such was the situation then relief sought by appellant could have been against defendant for which appellant was at liberty to take any action against her---Division Bench of High Court declined to interfere in the matter---Intra-court appeal was dismissed in circumstances.

Muhammad Jameel through LRs v. Syeda Sakina Riaz and others 2015 CLC 594; Syed Ali Asghar and 3 others v. Creators Builders and 3 others 2001 SCMR 279 and Peer Dil and others v. Dad Muhammad 2009 SCMR 1268 ref.

Mujtaba Sohail Raja for Appellant.

Muhammad Yaseen Khan Azad for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

YLR 2020 KARACHI HIGH COURT SINDH 1268 #

2020 Y L R 1268

[Sindh]

Before Mahmood Ahmed Khan, J

MUHAMMAD UMAR GODAL and others---Plaintiffs

Versus

MUHAMMAD UMER (deceased) and another---Defendants

Suit Nos. 713 and 1479 of 2007, decided on 15th May, 2018.

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

----S. 8---Suit for possession---Nominee as legal heir, status of---Scope---Plaintiff (son) filed suit for possession, mesne profits and permanent injunction claiming therein that suit property was purchased by his father; that he was nominated as legal heir and that after the death of his father suit property was transferred in his name therefore the defendants had no right to retain possession---Validity---Nominee had no superior legal rights except to what he had his own rights under the personal law of inheritance---Nominee could only represent all the legal heirs, as such he/she did not become an owner by virtue of being appointed as nominee---Nominee had no right to claim exclusive possession---Suit was dismissed with costs.

Mst. Amatul Habib v. Mussarat Perveen PLD 1974 SC 185 and Fazal Shah v. Mohammad Deen I990 SCMR 868 ref.

Manzoor Ahmad v. Salman Bibi 1998 SCMR 388 rel.

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

----S.54---Suit for permanent injunction---Limitation--- Scope---No bar of limitation exists for the suit filed in response to the defendant challenging possession and legal entitlement of plaintiff to the suit property and plaintiff not claiming anything in adversity.

Ashraf Ali Butt call absent.

Zahid Marghoob for Plaintiffs (in Suit No.1479 of 2007).

YLR 2020 KARACHI HIGH COURT SINDH 1285 #

2020 Y L R 1285

[Sindh]

Before Syed Hassan Azhar Rizvi, J

Mrs. WASIM SULTANA---Appellant

Versus

PUBLIC AT LARGE---Respondent

Miscellaneous Appeal No. 2 of 2017, decided on 27th January, 2020.

Succession Act (XXXIX of 1925)---

----S. 372--- Succession certificate, issuance of---Non-contentious matter---District Judge dismissed application for succession certificate on technical grounds---Held, that all legal heirs were adults and had their Pakistan Computerized National Identity Cards (CNICs) issued from the National Database and Registration Authority (NADRA)---Appellant/widow had also obtained Family Registration Certificate ('FRC') from NADRA containing the names of the appellant and all legal heirs---Photocopy of Nikahnama of the appellant with the deceased was available on record and it was verified/certified by the Consulate General of a foreign country---Despite publication of notice no objection was received by the District Judge from any quarter during the proceedings of application for issuance of succession certificate---Present matter remained non-contentious, therefore, there was no impediment in granting succession certificate in favour of the appellant---Appeal was allowed and Nazir of Session Court was directed to issue succession certificate in favour of the appellant as per the rules.

Asad Halepota for Appellant.

YLR 2020 KARACHI HIGH COURT SINDH 1299 #

2020 Y L R 1299

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

MUHAMMAD NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.126 and Confirmation Case No.3 of 2016, decided on 30th January, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Benefit of any doubt in the prosecution case would go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Last seen evidence---Prosecution case was that the accused along with co-accused committed murder of the brother of the complainant by hanging him with the seat belt of car and setting him on fire---Admittedly, there was no eye-witness of the murder of the deceased committed during the dark night---Witness of last seen evidence stated that he saw the deceased with the accused on 24.11.2009 at a petrol pump in a car on passenger seat---No evidence had come on record to disbelieve the said last seen evidence---Water tanker driver/witness had stated that at about 4.30 a.m. on 25.11.2009, he spoke to accused and offered him a lift but he declined the lift as he had a motorcycle and was waiting for some one---No evidence had come on record to disbelieve the said evidence---Prosecution had shown that accused was with the deceased at 10.00 p.m. and that deceased was seen alone near the place of incident at 4.00 a.m., some six hours later---Last seen evidence alone was insufficient to convict accused with the murder of deceased as there was an unaccounted for six hours when deceased was last seen with accused---Prosecution's two witnesses had given evidence that between 2.15 a.m. and 3.20 a.m. they were in mobile phone contact with deceased who had told them that he was with accused in a town where they were going to meet brother of a lady whom deceased wished to propose to---Last seen evidence, in circumstances, had not been adequately corroborated by another independent source of evidence such as the alleged telephone calls---Accused was not mentioned in the FIR as suspect---Investigating Officer had failed to uncover any other potentially corroborative evidence from the accused---Circumstances established that the prosecution had not been able to prove its case against the accused beyond a reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Abid v. The State PLD 2018 SC 813; Hayatullah v. The State 2018 SCMR 2092; Nazar Muhammad and another v. The State 2018 YLR 1455 and Abdul Sattar v. The State PLD 1976 SC 404 ref.

----Extra-judicial confession---Scope---For an extrajudicial confession to be relied upon extreme caution must be exercised and that it must be supported by some unimpeachable corroborative evidence in order to bring home a conviction.

Sajid Mumtaz v. Basharat 2006 SCMR 231 rel.

(d) Criminal trial---

----Extra-judicial confession before police---Scope---Extrajudicial confession before the police and taking the police to the place of incident was of no assistance to the prosecution, based on the particular facts and circumstances of that case as the extra-judicial confession could easily be concocted by the police.

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for Appellant.

Farman Ali Kanasro Addl. P.G. and Muhammad Iqbal Awan, Deputy Prosecutor General Sindh for Respondent.

Amir Azam for the Complainant.

YLR 2020 KARACHI HIGH COURT SINDH 1317 #

2020 Y L R 1317

[Sindh]

Before Muhammad Saleem Jessar, J

SHAHZAIB HUSSAIN through Attorney---Applicant

Versus

MUHAMMAD AHSAN and 6 others---Respondents

Criminal Revision Application No. S-94 of 2016, decided on 22nd October, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Illegal dispossession---Appreciation of evidence---Complainant had alleged that he was lawful owner of the suit property by virtue of registered sale deed and was residing in the said property for the last ten years---Complainant had entered into sale agreement with respondent in respect of the said property against consideration of Rs. 16 Million, out of which respondent paid an amount of Rs. 96,00,000/- in two instalments and balance of Rs. 64,00,000/- was agreed to be paid at the time of transfer/registration of sale deed---Complainant had provided access to the property to the said respondent at his request but the vacant possession was never handed over to the respondent---Later on, other three respondents illegally dispossessed the complainant and his family from the property---Respondent had denied to vacate the property in question although having knowledge that the complainant was the owner of property in question---Trial Court directed the S.H.O. concerned to carry out investigation and submit report which was submitted---Trial Court dismissed the complaint on the ground that civil litigation with regard to illegal dispossession from immovable property was pending between the parties---Validity---Illegal Dispossession Act, 2005 itself had provided a remedy on a grievance of illegal possession and forcible/wrongful dispossession, therefore, such complaint would be maintainable regardless of pendency of any civil litigation if, prima facie, the complained possession was without lawful authority---Though, undeniably the parties had entered into an agreement of sale which, legally, did create certain rights in favour of the vendee, but if such agreement was not coupled with delivery of possession, the vendee under garb of such agreement would not be entitled to have possession or control of such property but would be required to seek enforcement of all such rights including possession by way of filing a suit---Agreement, prima facie, showed that the possession was never handed over to the vendee but he was only permitted to start renovation/repair work---Thus, said entry into property was for such purpose only and could not be exploited for any other purpose including one of grabbing or controlling the subject matter, particularly when such permission (right to renovation/repair) was admitted to be with right of owner to have free access to visit the property---Circumstances would lead to no other conclusion that possession of the vendee/respondent even with reference to sale agreement could not be said to be with lawful authority---Prima facie, complaint within the meaning of S.3(1) of the Act only was made out and required proper trial thereof---Mere pendency of lis would never debar entertaining a complaint under the Act if, otherwise, an offence within meaning of the Act appeared to have been made out---Criminal revision application was allowed by setting aside the impugned order and the case was remanded to the Trial Court with direction to record the evidence of the parties and decide the case in accordance with law after providing opportunity of hearing to both the sides.

Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Shahabuddin v. The State PLD 2010 SC 725; Bashir Ahmed v. Additional Sessions Judge PLD 2010 SC 661; Habibullah v. Abdul Manan 2012 SCMR 1533; PLD 1970 SC 470; PLD 2009 SC 404; 2012 PCr.LJ 1405; 2013 YLR 1088; PLD 2009 Pesh. 81; 2008 MLD 1702; 2013 YLR 133; 2010 YLR 593 and 2000 SCMR 122 ref.

Sheikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Bashir Ahmed v. Additional Sessions Judge PLD 2010 SC 661; Habibullah v. Abdul Manan 2012 SCMR 1533; Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 and Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 rel.

Abdullah Munshi for Applicant.

Hassan Akbar for Respondents Nos. 2 and 3.

Ms. Seema Zaidi, D.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1331 #

2020 Y L R 1331

[Sindh]

Before Khadim Hussain Tunio and Omar Sial, JJ

AFTAB AHMED KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1705 of 2018, decided on 8th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 353, 324, 34, 427, 186, 337-A(i), 147, 148 & 149---Anti Terrorism Act (XXVII of 1997), S.7---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, common intention, obstructing public servant in discharge of public functions, hurt, rioting, rioting, armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---None from either of the parties received any injuries even though it was alleged that shots were fired---No independent person was cited as mashir from the public as even though the incident took place around a huge crowd---Nothing was recovered from the possession of the accused neither had he pointed out any crime weapon allegedly used by him--Nothing was recovered from the co-accused who was allegedly arrested from the place of scene---Investigation was complete and the accused was no longer required for further investigation---Liberty of any person could not be curtailed without any lawful justification and same was the case of accused who was behind the bars since the day of his arrest---No question of tempering with any evidence since all the prosecution witnesses were police officials---Accused was admitted to post-arrest bail, in circumstances.

Zakir Hussain Bughio for Applicant.

Siraj Ahmed Chandio, Additional Prosecutor-General, Sindh for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1338 #

2020 Y L R 1338

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

Mir SHAHABUDDIN SHAH alias MRI SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-69 of 2017, decided on 6th October, 2017

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody---Non-association of private witnesses---Non-production of sample-bearer--- Effect--- Accused as alleged to be in possession of 2600 grams of charas---Police had recovered the charas at a busy road but had not tried to associate a private person to witness the arrest and recovery---Propriety demanded that arrangements should have been made to associate private witnesses for arrest and recovery---Date of sending the case property was not mentioned in the report of Chemical Examiner while the letter through which the case property was sent to the Chemical Examiner was not produced during trial---High Court observed that sender of the case property should have been examined by the prosecution to clarify whether the property was in safe custody during the said transitory period---Judgment of Trial Court was set aside and the accused was acquitted of the charge, in circumstances.

Khalil Ahmed v. The State PLD 2008 Kar. 8 and Abdul Majeed v. The State 2014 YLR 2050 rel.

Riasat Ali v. The State 2004 PCr.LJ 361 and Muhammad Saleh Mallah v. The State 2016 PCr.LJ 432 ref.

(b) Criminal trial---

---Benefit of doubt---Scope---Even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Masood Rasool Babar Memon for Appellant.

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

YLR 2020 KARACHI HIGH COURT SINDH 1345 #

2020 Y L R 1345

[Sindh]

Before Fahim Ahmed Siddiqui, J

HAMEEDA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1398 of 2019, decided on 6th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Allegations against the accused was that she caused death of her husband by inflicting blows with wooden pestle and cricket bat etc---Material private witnesses had already been examined, hence there remained no chance of tampering with the prosecution evidence---Post-mortem report indicated that there was delay of 1 to 2 days in suffering of injuries and time of death, which created serious doubt regarding prosecution case---Accused was a woman, as such her case was covered under the proviso of S. 497, Cr.P.C., for a favourable consideration of bail---Accused was admitted to bail, in circumstances.

Sathi M. Ishaq for Applicant.

Ms. Zubaida Jamali for the Complainant.

Muntazir Mehdi, Addl. P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1354 #

2020 Y L R 1354

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

FAHEEM AHMED---Applicant

Versus

The STATE---Respondent

1st Criminal Bail Application No. S-655 of 2019, decided on 30th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Bail, grant of---Further inquiry---Recovery of 9000 grams Panparag and Gutka---No person from the public or society made any complaint against the accused nor any person was produced to whom the accused allegedly administered the alleged Panparag or Gutka---Not a single person was found nearby to him while purchasing the same from the accused---Basic ingredients for application of section 337-J, P.P.C, were lacking in the case---Mere heinousness of offence was no ground for withholding the concession of bail to accused---Law could not be stretched upon in favour of the prosecution, particularly at bail stage, as every accused was presumed to be blue eyed boy of the law until and unless he was found guilty of the charge---Case against the accused required further enquiry within the meaning of subsection (2) to S.497, Cr.P.C.----Bail application was allowed, in circumstances.

Asif Ali Abdul Razzak Soomro and Muhammad Ali Memon for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 1358 #

2020 Y L R 1358

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD BASHIR---Applicant

Versus

Mst. SAKINA and others---Respondents

Civil Revision Application No. 149 of 2017, decided on 3rd December, 2019.

Transfer of Property Act (IV of 1882)---

----S. 52---Transfer of property pending suit relating thereto---Maxim: Pendente lite innovetur (pending litigation nothing new should be introduced) stipulated that pendente lite parties to litigation no party could alienate or otherwise deal with an immovable property to the detriment of his opponent---Maxim: Pendente lite innovetur had been recognized both in law and equity---No action or suit would succeed if alienations made during pendency of proceedings in the suit or action were allowed to prevail---Even plea of bona fide purchaser was of no legal consequence if the transferor's title had lost its root in a pending litigation---Defendant had not challenged the impugned judgment and decree passed against him---Petitioner, in the present case, claimed ownership through defendant who had lost his case and impugned judgments and decrees passed against defendant had attained finality---Petitioner could not agitate same plea in his independent right but his rights if any were derived from the defendant---Petitioner had to sail or sink with such transferor---Revision was dismissed, in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; 1989 SCMR 1781; 1984 CLC 1458 and 1988 CLC 1652 rel.

Raghib Ibrahim Junejo for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 1368 #

2020 Y L R 1368

[Sindh]

Before Omar Sial, J

STATE through Deputy Attorney General---Petitioner

Versus

Shaikh MUHAMMAD MUNAWAR and another---Respondents

Criminal Acquittal Appeal No. 518 of 2019, decided on 23rd December, 2019.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468, 471, 109 & 34---Criminal breach of trust by public servant, or by banker, merchant or agent, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Limitation---Delay, condonation of---Scope---Appeal against acquittal was filed by the prosecution three days after the period of limitation---Only reason shown for seeking condonation was the delay caused due to departmental procedures, which was insufficient to upset the acquittal---Delay could not be condoned unless it was shown that the prosecution was precluded from filing the appeal in due time due to some act of the acquitted accused or by some circumstances of a compelling nature, beyond control---Reason for taking the strict view was that in most jurisdictions, an acquittal, once recorded by a competent Court, was final and the matter could not be reopened at the instance of any party including the State---Acquittal could be challenged in certain circumstances, but if it was not challenged within the period allowed by law, it would become final---Appeal merited dismissal.

Muhammad Ahmed, Assistant Attorney General for Appellant.

YLR 2020 KARACHI HIGH COURT SINDH 1394 #

2020 Y L R 1394

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

Mst. AZEEMA KHATOON and 2 others---Applicants

Versus

Mst. HAKIMZADI and 10 others---Respondents

Civil Revision Application No. 179 of 2016, decided on 25th October, 2019.

(a) Islamic law---

----Gift---Proof of--- Requirements---Contention of plaintiff was that she was entitled for her share in the inheritance of her deceased father whereas defendants contended that their father had gifted suit property in their favour---Suit was decreed concurrently---Validity---Defendants were bound to prove that suit property had been gifted in their favour by their deceased father---Defendants and his witness were not present at the time of impugned gift---Donees had failed to state the date, time and place when oral gift was made by the deceased donor---Defendants had failed to establish that donor had gifted suit property to his sons---Plaintiff was entitled for her share from the suit property of her father---Courts below had properly appreciated the evidence produced by the parties---No ground existed to re-evaluate the evidence---No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed, in circumstances.

Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 and General Manager National Radio Telecommunication Corporation Haripur 10 District Abottabad v. Muhammad Aslam and others 1992 SCMR 2169 rel.

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

----S. 115---Interpretation of S.115, C.P.C.---Revision---Scope.

Revision is a matter between the higher and subordinate Courts, and the right to move an application in this respect by the Applicants, is merely a privilege. The provisions of section 115, C.P.C., have been divided into two parts: First part enumerates the conditions, under which, the Court can interfere and the second part specify the type of orders which are susceptible to Revision. The jurisdiction under section 115, C.P.C., is discretionary in nature.

Concurrent findings arrived at by the Courts below cannot be lightly interfered with unless some question of law or erroneous appreciation of evidence is made out.

Faisal Nadeem Abro for Applicants.

Zahid Mallah for Respondent No.1.

Wali Muhammad Jamari, Asstt: A.G. for Respondents Nos. 5 to 10.

Respondent No.11 present in person.

YLR 2020 KARACHI HIGH COURT SINDH 1406 #

2020 Y L R 1406

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

CHELO and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-624 of 2019, decided on 22nd July, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 376 & 34---Rape, common intention---Bail, grant of---Further inquiry---Accused had, prima facie, not been alleged to have actively played any role in commission of the offence but their alleged presence had been claimed as facilitators--- First Information Report showed that the victim despite alleged force of the accused was in a position to attract people by making cries which she did and in consequence to such attraction the accused persons escaped---Allegation of providing facilitation was a question which needed further probe--- Question of sharing common intention was normally considered as one of further probe because the same was always dependent upon conclusion to be drawn from circumstances---Accused persons had made out a case for grant of bail who, otherwise, were in judicial custody and not required for any purpose of investigation---Accused persons were admitted to bail, in circumstances.

Sulleman Dahri for Applicants.

Shahzado Saleem Nahyoon, Deputy Prosecutor General, Sindh along with Aijaz Ahmed Shaikh SSP Umerkot, Fazal Haq, DSP Umar Kot and Vijay Kumar SHO, Police Station Taluka for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1421 #

2020 Y L R 1421

[Sindh]

Before Abdul Maalik Gaddi, J

WALIULLAH and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1229 of 2019, decided on 25th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Compromise between the accused persons and legal heirs of the deceased---Compromise was effected and accepted by the Presiding Officer of the Trial Court---Main grievance of the accused persons was that despite compromise having been accepted by the Trial Court, they were in jail and could not manage to deposit the Diyat amount before the Nazir of the Trial Court, because of short time and poverty and further detention of the accused person would not serve the purpose---In view of no objection from the State Counsel, accused persons were admitted to bail, in circumstances.

Muhammad Mushtaq and S. Mehmood for Applicants.

Abrar Ali Khichi, Additional Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1431 #

2020 Y L R 1431

[Sindh]

Before Mrs. Rashida Asad, J

MUHAMMAD AIJAZ YOUSFZAI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1134 of 2019, decided on 24th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 395, 170 & 171---Dacoity, personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent---Pre-arrest bail, recalling of---Accused had been implicated by both the co-accused in the commission of the offence as one of their companions---Such statement, ex-facie, was an incriminating circumstance against the accused even at bail stage---Accused was charged with heinous offence and during investigation police had also recovered some amount from both the co-accused----Accused had failed to establish any mala fide on the part of the complainant---Delay in lodging FIR had been plausibly explained---Delay in lodgment of FIR alone was not sufficient to claim release on bail---Each case had its own merits and circumstances---Interim pre-arrest bail was recalled, in circumstances.

Fayyaz Awan for Applicant.

Muntazir Mehdi, Deputy Prosecutor General Sindh for Respondent.

Liaquat Ali Khaskheli for the Complainant.

YLR 2020 KARACHI HIGH COURT SINDH 1453 #

2020 Y L R 1453

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

ANTI-NARCOTICS FORCE REGIONAL DIRECTORATE SINDH through Deputy Director (Law)---Appellant

Versus

FARHAD KHAN---Respondent

Criminal Acquittal Appeal No. D-28 of 2002, decided on 5th September, 2019.

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

----Ss. 9(c) & 6---Criminal Procedure Code (V of 1898), S. 417---Appreciation of evidence--- Possession of narcotics---Appeal against acquittal---Non-association of private witnesses---Safe custody---Delay in sending case property to Forensic Laboratory---Scope---Accused was alleged to have been found in possession of 11 kilograms of charas---Roznamcha entry depicting departure of police party for patrolling showed over-writing---No person from the bus stand (place of recovery) was made to act as mashir---Driver or the bus conductor was not approached and/or examined---Prosecution witnesses had contradicted each other about the departure of bus---Registration number of the bus from which the accused dropped was not mentioned in the FIR or in mashirnama---Case property was received in the Forensic Laboratory after 10 days of its recovery without any explanation with regard to its safe custody---Trial Court had rightly disbelieved the prosecution evidence---Scope of appeal against acquittal was considerably narrow and presumption of double innocence was attached to the order of acquittal---Appeal against acquittal, being without merit, was dismissed, in circumstances.

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

----S. 103---Search to be made in presence of witnesses---Refusal to attend or witness "search"---Scope---Where public witness does not co-operate with police, the duty of the police officer is to note down the names of the persons so approached/asked and such fact should be mentioned in the FIR that so and so person was approached but he refused to act as mashir---In the absence of such fact in the FIR it could not be believed that the police officer had approached any public person to become a mashir.

---S. 417---Appeal against acquittal---Scope---Where accused is acquitted of the charge by a court of competent jurisdiction, double presumption of innocence is attached to its order with which High Court is always slow to interfere.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

Mohsin Ali, Special Prosecutor ANF for Appellant.

Mir Akbar Khan for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1476 #

2020 Y L R 1476

[Sindh]

Before Mrs. Rashida Asad, J

Dr. ZAIB SIDDIQUE---Appellant

Versus

MUHAMMAD ARSHAD ZAIDI and 5 others---Respondents

Criminal Acquittal Appeal No. 81 of 2015, decided on 21st January. 2020.

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

----Ss. 324, 337-D, 148, 149 & 34---Criminal Procedure Code (V of 1898), S.417---Attempt to commit qatl-i-amd, jaifah, rioting, armed with deadly weapon, common object, common intention---Facts necessary to explain or introduce relevant facts---Appreciation of evidence---Appeal against acquittal---Identification through CCTV footage---Effect---Prosecution case was that the complainant along with two others were going towards his house in a car when police mobile, driven recklessly, suddenly appeared from the gate of police headquarter which prompted him to stop the car; that on such abrupt situation, police personnel sitting in the rear cabin verbally abused to which he replied and drove away; that the police mobile, which followed them, stopped his car and three police personnel alighted from mobile, one of them injured the complainant with rifle butt whereas the other hit the bonnet of the car; that in the meanwhile, third police personnel fired a gunshot from behind the car which hit one of the persons sitting in the car and that the complainant accelerated the car towards his building and moved the injured to the hospital---Complainant had identified the accused persons through CCTV (closed-circuit television) footage--- Testimony of complainant was completely consistent to the statement made under S.154, Cr.P.C. and no serious dent was caused in the prosecution case on the point of occurrence, receiving bullet shot injury from a fire of the policeman, identity of the accused persons and their arrest---Statements of the passengers of the car/eye-witnesses corroborated the testimony of the complainant---Roznamcha entries depicting departure and arrival of police officials pointed towards the accused persons by showing that they were out of the police station during the time of occurrence---Visualization of the scene and scenario as disclosed by eye-witnesses revealed that accused persons constituted actus reus in furtherance of their common intention and as such committed the offence---Nature of injury was disclosed to be jurh-i-jaifah which constituted an offence under S.337-D, P.P.C.---High Court converted the acquittal of accused persons into conviction under Ss.337-D & 34, P.P.C.---Appeal against acquittal was allowed, in circumstances.

1978 SCMR 49; 2000 SCMR 1859; 2017 PCr.LJ 535; 2015 PCr.LJ 551; 2015 MLD 1927; 2014 YLR 2191; 2019 PCr.LJ 973; 2003 SCMR 477; 2012 YLR 474; 2018 PCr.LJ 505; 2004 SCMR 249; 2009 SCMR 985 and 1992 SCMR 2088 ref.

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

----S. 34---Common intention---Scope---Section 34, P.P.C. deals with the acts done by several persons in furtherance of common intention---When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone---Common intention presupposes a prior concert, prearranged plan but that does not mean that there must be long interval of time between the formation of the common intention and doing of the act---Direct evidence is not necessary to adduce common intention and in many cases, it may be impossible to do so---Common intention may be inferred from the surrounding circumstances and the conduct of the parties.

PLD 1975 SC 351 and 1973 SCMR 503 ref.

----S. 34---Common intention---Scope---Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to "vicarious liability" is that those who stand together must fall together---Question that what injuries were inflicted by a particular accused in cases to which S.34, P.P.C. applies is immaterial---Principle under the said section is that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone.

Sh. Muhammad Abid v. The State 2011 SCMR 1148 ref.

(d) Criminal trial---

----Evidence--- Scope--- Mere close relationship of the witnesses with complainant does not discard their testimony if otherwise the same is trustworthy, confidence inspiring, appealing to reason and corroborated by independent circumstances.

Aijaz Ahmed v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 ref.

Jamshed Iqbal for Appellant.

Ali Asghar Awan for Respondents.

Farman Ali Kanasro, Additional Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1494 #

2020 Y L R 1494

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

Mst. PARVEEN RAZA JADUN through L.Rs. and others---Applicants

Versus

BASHIR AHMED CHANDIO and 5 others---Respondents

Civil Revisions Applications Nos. 144 and 145 of 2014, decided on 12th July, 2019.

(a) Benami transaction---

----Benami property, transfer of---Proof---Ostensible ownership---Onus to prove---Plaintiff claimed that her brother was only a Benami owner of suit property which was in fact owned by their father---Plaintiff assailed transfer of property in favour of defendants by her brother---Suit filed by plaintiff was decreed in her favour by Trial Court but Lower Appellate Court set aside the same---Validity---No convincing evidence was produced by claimants (legal heirs of plaintiff) that they were residing in the subject property as its real owners---Claimants (legal heirs of plaintiff) had never remained in continuous physical possession and even if claimants (legal heirs of plaintiff) had resided in subject property for some time, that was because of close relationship of sister and brother---Basic ingredients required by claimants (legal heirs of plaintiff) to succeed in benami claim of the nature, which was an indirect benami claim, were completely lacking---Claimant (legal heirs of plaintiff) did not purchase subject property way back in year 1957 because she herself was a minor at relevant time---Claimants (legal heirs of plaintiff) failed to prove raising of construction by her father---Claimants (legal heirs of plaintiff) failed to prove that at any point of time in their income/funds were utilized in construction of subject property---Original title documents were provided by defendant and claimants (legal heirs of plaintiff) only produced photocopy of original title in their evidence---Authenticity of record produced by official witness was not challenged by claimants (legal heirs of plaintiff)---Presumption of genuineness according to Arts. 92 & 129, illustration (e) of Qanun-e-Shahadat, 1984 were also attracted to record produced by official witness---No plausible answer was given by claimants (legal heirs of plaintiff) that for not filing proceedings during lifetime of deceased, who admittedly purchased property in name of objector (brother of plaintiff) particularly when ownership lease was executed in favour of objector (brother of plaintiff) without objection from claimant (legal heirs of plaintiff)---High Court declined to interfere in order passed by Lower Appellate Court as it had no material irregularity---Revision was dismissed in circumstances.

Ismail Dada Soomar v. Shaorat Bano PLD 1960 (WP) Kar. 852; Sher Muhammad v. Muhammad Sharif PLD 1971 Kar. 763; Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Muhammad Sajjad Hussain v. Anwer Hussain 1991 SCMR 703; Kishwar Malik v. Lt. Col Retd Sadiq Malik 1994 CLC 811; Mazhar Mahmood Khan v. Khushal Jadoon 1995 MLD 316; Malik M. Zubair v. Malik Muhammad Anwar PLD 2004 Lah. 515; Abdul Majeed v. Amir Muhammad 2005 SCMR 577; Kaleem Hyder Zaidi v. Mehmooda Begum 2006 YLR 599; Wasi-ud-Din v. Fakhra Akhter 2011 SCMR 1550; Sher Baz Khan v. Malkani Tiwana PLD 2003 SC 849; Abdul Rehman v. Zia ul Haq Makhdoom; 2012 SCMR 954; Major General Dr. Asif Ali Khan v. Riaz Ali Khan 2010 YLR 3214; Mst. Sharifa Bibi and others v. Abdul Majeed Rauf PLD 2012 Lah. 141; Mst. Alim Taj v. Mst. Sahib Jan 2014 YLR 385; M. Nawaz Minhas v. Mst. Surriya Sabir 2009 SCMR 124; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool PLD 2008 SC 146; Mst. Zohra Begum v. Muhammad Ismail 2008 SCMR 143; Ahmad Sultan Khan v. Mst. Sanin Kausar 1986 SCMR 1591; M. Sajjad Hussain v. M. Anwar Hussain 1991 SCMR 703; Ghulam Murtaza v. Mst. Asia Bibi PLD 2010 SC 569; Sh. Muhammad Rafique v. Sh. Muhammad Jameel 2015 MLD 642; Manzoor Butt v. Mahmed Sufi 2016 CLC 1284; Haji Shaizullah Khan v. Haji Nawab Through Lrs. 2016 YLR 75; Manager Jammu and Kashmir Property v. Khuda Yar PLD 1975 SC 768; Muhammad Yousuf v. Mst. Kharian Bibi 1995 SCMR 784 and 1992 MLD 2515 ref.

(b) Benami transaction---

----Onus to prove---Initial burden to prove a benami transaction is on party that took plea of Benami.

Irfan Ahmed Qureshi, Muhammad Umer Lakhani and Syed Ali Ahmed Zaidi for Applicants.

Muhammad Najeeb Jamali for Respondents Nos. 1 to 3.

Allah Bachayo Soomro, Additional A.G. for Respondents Nos. 4 to 6.

YLR 2020 KARACHI HIGH COURT SINDH 1526 #

2020 Y L R 1526

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MEHBOOB ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-15 and Criminal Revision Application No. D-06 of 2004, decided on 8th October, 2019.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Minor discrepancies in statements of witnesses---Effect---Medical evidence corroborating ocular account---Effect---Day light occurrence---Evidence of eye witnesses was fully corroborated by medical evidence---Day time incident occurred on Eid day and was reported to police station within one hour---Eye witnesses were cross-examined at length by accused but no defect in proceedings came on record---No major contradiction in statement of witnesses was pointed out by accused---Minor contradictions/ omissions in evidence of prosecution witnesses was natural and no importance could be attached to such contradictions---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed, in circumstances.

Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458; Inam Ali v. The State 2011 PCr.LJ 1398; Noor Muhammad v. The State 2005 SCMR 1958; Ali Bux and others v. The State 2018 SCMR 354; Afzal-ur-Rehman v. The State 2003 SCMR 355; Nadeem Ramzan v. The State 2018 SCMR 149; Mazhar Abbass alias Baddi v. The State 2017 SCMR 1884 and Ghulam Mohyiddin alias Baboo v. The State 2014 SCMR 1034 ref.

Ali Nawaz Ghanghro for Appellant (in Criminal Jail Appeal No.D-15 of 2004).

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General for the State (in Criminal Jail Appeal No.D-15 and Criminal Revision Application No. D-6 of 2004).

Shabbir Ali Bozdar for Applicant (in Criminal Revision Application No.D-6 of 2004).

Ali Nawaz Ghanghro for Respondent (in Criminal Jail Appeal No.D-15 and Criminal Revision Application No. D-6 of 2004).

YLR 2020 KARACHI HIGH COURT SINDH 1547 #

2020 Y L R 1547

[Sindh]

Before Muhammad Junaid Ghaffar, J

Syed HAMID MIR and another---Plaintiffs

Versus

BOARD OF REVENUE and others---Defendants

Suit No. 849 of 2017 and C.M.As. Nos. 5347 and 5345 of 2017, decided on 21st February, 2018.

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

----Ss. 42 & 54---Suit for declaration, injunction, possession and damages---Interim injunction---Restoration of possession---Plaintiffs allegedly had claimed ownership of land in question and sought restoration of their possession---Validity---Court could not give any conclusive finding as plaintiff was not able to point out exact location of his land on basis of his ownership documents annexed with plaint---Land of plaintiffs fell far away from position, i.e., position claimed by plaintiffs as all along land was pointed out by plaintiffs to court officials---At injunctive stage plaintiff was duty bound to make out his prima facie on basis of his documents---Inspection was carried out along with concerned officials and none had supported case of plaintiffs---High Court declined to restore possession---Application was dismissed in circumstances.

Suo Motu Case No.16 of 2011 along with C.M.As. PLD 2013 SC 443; Sharif Haroon v. Province of Sindh through Secretary to the Government of Sindh, Land Utilization Department and another PLD 2003 Kar. 237; Sherri CBE (Citizens for a Better Environment) and another v. Government of Sindh through Secretary, Land Utilization Department Board of Revenue, Karachi and others 2009 YLR 955 and Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 ref.

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

----O. XXVI, R. 12(2)---Commission for local investigations---Scope---Report of commissioner appointed by court is always persuasive in nature---Such is only a tool for court to arrive at a just and fair decision but under no circumstances it is binding on court and it is not necessary to be acted upon by court mandatorily---Court has to and must examine report as a commissioner's report is not a substitute of evidence and can only be an aid in evidence---Such is not a case where matter is being decided on basis of any evidence which could corroborate with pleadings and documents on record---Inspection of a location by court may be necessary and helpful in deciding a case but it should not be substituted as evidence which otherwise is required to be produced by a party---Provisions of O.XXVI, R.12(2), C.P.C. make it discretionary for court to accept or reject report of a commissioner if it is to dissatisfaction of court.

Abdul Rashid v. Mahmood Ali Khan 1994 SCMR 2163 and Gulzar Hussain Awan v. Akbar 1999 YLR 2250 rel.

Khawaja Shamsul Islam for Plaintiffs.

Barrister Jamshed Malik for Defendants Nos. 2 to 4.

Suneel Kumar Talreja, A.A.G. along with Nigar Afaq State Counsel for Official Defendants.

Shabbir Ahmed Shaikh along with Asadullah Abbasi, A.C. Murad Memon and Hussain Ali Hakro, Mukhtiarkar Murad Memon.

YLR 2020 KARACHI HIGH COURT SINDH 1557 #

2020 Y L R 1557

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

BABAR MASIH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 419 of 2016 along with Confirmation Case No.11 of 2016, decided on 4th November, 2019.

(a) Criminal trial---

----Medical evidence---Scope---Medical evidence may help in ascertaining cause of death but it does not identify culprits.

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

----S. 302 (b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-Amd---Appreciation of evidence---Confessional statement--- Retraction--- Effect---Incriminating evidence, non-putting to accused---Accused, after recovery of dead body of deceased was put to trial on the basis of his confessional statement made before Magistrate---Accused retracted his confession during his examination under S.342, Cr.P.C.---Confessional statement was neither true nor was voluntary and such type of confession could not be used for awarding conviction especially in a capital case without the strongest of corroboration which was lacking---Piece of evidence which was not put to accused in statement under S.342, Cr.P.C. could not be used against him nor on such point could the case be remanded to Trial Court for recording statement under S.342, Cr.P.C. afresh so that the prosecution could fill in the lacunas in its case---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; Majeed v. The State 2010 SCMR 55; Muhammad Amin v. The State PLD 2006 SC 219; Shahzado v. The State PLD 2005 SC 477; The State through A.G. N.W.F.P. Peshawar v. Waqar Ahmed 1992 SCMR 950; Manjeet Singh v. The State PLD 2006 SC 30 and Sain Gul Wali Khan v. The State 2003 PCr.LJ 1264 ref.

Muhammad Shah v. The State 2010 SCMR 1009; Nusrat Ali Shar and others v. The State Cr. Appeals Nos.24-K, 25-K and 26-K of 2018, Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

----Benefit of doubt---Principle---For giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts---If there is a single circumstance which creates reasonable doubt in a prudent mind about guilt of accused, then accused is entitled to benefit of doubt not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Javed Ahmed Chattari for Appellant.

Farman Ali, Additional Prosecutor General for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1586 #

2020 Y L R 1586

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD ARIF---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE-VIII, KARACHI WEST and 2 others---Respondents

Constitutional Petition No. 2342 of 2018, decided on 10th January, 2020.

(a) Islamic law---

----Maintenance for wife and children---Principles---Husband is under obligation to maintain his wife and children.

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

----Art. 132--- Affidavit-in-evidence---Failure to cross-examine---Effect---Affidavit-in-evidence/Written statement does not constitute or otherwise cannot be treated as a legal and valid evidence---Affidavit-in-evidence/Written statement if not cross-examined has to be excluded from consideration.

----Art. 199---Constitutional petition---Concurrent findings of two courts below---Scope---High Court under Constitutional jurisdiction cannot interfere in concurrent findings of two courts below otherwise it may go beyond scope of Art. 199 of Constitution.

(d) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance, recovery of---Concurrent finding of facts by two courts below---Marriage not consummated---Petitioner was ex-husband of respondent and he after Nikah, did not get Rukhsati of respondent for 13 years---Respondent sought Khula and suit for past maintenance was decreed in her favour by Family Court---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Validity---Rukhsati of respondent since her Nikah on 24-12-1999 till her Khula on 10.04.2013 under decree of court had not taken place and marriage was also not consummated as such---Respondent was entitled to claim for her maintenance as upon performance of her Nikah, she had attained status of wife and remained in such capacity till 10-04-2013 when she was granted Khula by Family Court---Such release of respondent did not affect liability of husband during subsistence of marriage---Petitioner did not take any positive/concrete steps for taking Rukhsati of respondents---Respondent was not only subjected to 'cruel behavior' but was also deprived for almost 13 years to enjoy a happy married life---Both courts below had rightly observed that a great injustice was caused to respondent who waited for Rukhsati for a long time of almost 13 years and got married at the age of 36 years but only after passing of decree for Khula---High Court declined to interfere in concurrent judgment and decree passed by two courts below as same were not suffering from any illegality, irregularity, infirmity, misreading or non-reading of evidence/ materials available on record---Petition was dismissed in circumstances.

Mst. Rubina Bibi v. Muhammad Bashir Ahmed 2006 YLR 633; Syed Rashid Ali Shah v. Mst. Haleema Bibi and 2 others PLD 2014 Pesh. 226; Mst. Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Muhammad Ilyas and others v. Muhammad Sharif and others 2001 CLC 1194; Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another 2003 MLD 205; Abdul Majeed v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Hakim-Ud-Din through L.Rs and orthers v. Faiz Bakhsh and others 2007 SCMR 870; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman Inland and 27 others 2004 YLR 1689 ref.

Khudinoor v. District Judge Pashin and 2 others 2017 YLR 2349; Mst. Shamim Akhter v. Additional District Judge, Sialkot and another 1991 CLC 1142 and Mst. Farah Naz v. Judge Family Court Sahiwal and others PLD 2006 SC 457 rel.

(e) Family Courts Act (XXXV of 1964)---

----S. 19---Appeal---Court-fee, non-affixation of---Effect---Petitioner did not pay requisite court fee on memo of appeal and same was dismissed by Lower Appellate Court--- Validity--- Lower Appellate Court had rightly dismissed appeal in circumstances.

Hameeda Begum v. First Additional District Judge and another 1988 CLC 1645 rel.

Altamash Arab and Muhammad Rehan for Petitioner.

Nemo for Respondent No.2.

Mian Muhammad Akram for Respondent No.3.

YLR 2020 KARACHI HIGH COURT SINDH 1678 #

2020 Y L R 1678

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD IQBAL PIRANI---Applicant

Versus

KHURRAM ASHRAF and 2 others---Respondents

J.M. No.7 of 2016 along with J.M. No.81 of 2015, Suit No. 2070 of 2014 and Suit No.Nil of 2016, decided on 25th April, 2019.

Civil Procedure Code (V of 1908)--

----S. 12 (2) & O. XXIII, R. 3---Compromise decree---Fraud and misrepresentation---Decree, setting aside of--- Scope--- Plaintiff impleaded defendant in the suit through his attorney who submitted written statement on behalf of defendant---Attorney of defendant filed application for compromise of a suit and impugned decree was passed---Contention of defendant was that decree had been obtained through fraud and misrepresentation---Validity---Application filed for compromise of a suit had signatures of plaintiff and attorney of defendant but not of the defendant---Defendant was the owner of suit property but he had not signed the application for compromise of a suit---Impugned decree passed on the basis of an application filed under O.XXIII, R.3, C.P.C. was collusive and had been obtained through misrepresentation and fraud---Impugned order and decree passed on the application for compromise were set aside, in circumstances.

Qurban Hussain and 2 others v.

Hukam Dad PLD 1984 SC (AJ&K) 157; Qurban Hussain and others v. Hukum Dad PLD 1984 SC (AJ&K) 1; Mrs. Sarwat Siddique and others v. Muhammad Yousaf 1985 CLC 2831 and Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 ref.

Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 and Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corpora-tion, Karachi 2002 SCMR 1761 rel.

Mazhar Imtiaz Lari for Applicant (in J.M. No.81 of 2015).

Naveed Ahmed for Respondents Nos. 1 and 2 (in J.M. No.81 of 2015).

Mansoor Ahmed Sheikh for Respondent No.3 (in J.M. No.81 of 2015).

Irfanullah Khan for Respondent No.4 (in J.M. No.81 of 2015).

Shahryar Qazi, Additional Advocate General and Farkhunda Mangi, State Counsel for Respondent No.5 (in J.M. No.81 of 2015).

Asif Rasheed for Respondent No.6 (in J.M. No.81 of 2015).

Nemo for Respondent No.7.

Mansoor Ahmed Sheikh, for Applicant (in J.M. No.7 of 2015).

Irfanullah Khan for Respondent No.1. (in J.M. No.7 of 2015).

Naveed Ahmed for Respondents Nos. 2 and 3 (in J.M. No.7 of 2015).

YLR 2020 KARACHI HIGH COURT SINDH 1719 #

2020 Y L R 1719

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SHAHZAD alias KALAY KHAN and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 167, 168, 169 and 170 of 2018, decided on 1st November, 2019.

Explosive Substances Act (VI of 1908)---

----S. 4 & 5--- Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), S. 103---Recovery of explosive substance and firearms---Appreciation of evidence---Recovery---Non-association of private person---Scope---Bomb, pistols .30 bore and six live bullets were recovered from both the accused persons---Plea raised by accused persons was that private persons were not made witnesses violating provisions of S.103, Cr.P.C.---Validity---Incident was night time occurrence due to which private public was not available on road and place of arrest was an abandoned area---Recovery was affected at about 0240 hours and it was not possible for police to arrange for private witnesses at odd hours of the night---Such non-association of private witnesses was not fatal to the case of prosecution---Police officials were as good as private witnesses and their testimony could not be discarded merely for reason that they were police officials unless accused persons had succeeded in giving dent to statements of prosecution witnesses and proved their mala fide or ill-will against accused---Bomb Disposal Unit reports so also Forensic Science Laboratory reports were against accused persons and were in line with case of prosecution---All witnesses furnished ocular evidence and supported case of prosecution and no enmity was suggested against accused persons---Prosecution witnesses were cross-examined at length but there were no major contradictions in their evidence to lead that witnesses were not trustworthy---High Court declined to interfere in conviction and sentence passed by Trial Court---Appeal was dismissed in circumstances.

Asif Khan v. The State 2018 YLR 661; Muhammad Hamdani v. The State 2018 YLR 2687; Zubair Ahmed alias Ladu v. The State 2018 YLR Note 160; Shahab-u-Din v. The State 2019 YLR 1277; Abdul Sami Khan and others v. The State through IXth Anti-Terrorism Court at Karachi 2019 MLD 1374; Sadam Ali v. The State 2019 MLD 670 and Tariq Parvez v. The State 1995 SCMR 1345 ref.

Khair Muhammad for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 167 to 170 of 2018).

Khadim Hussain, Deputy Prosecutor General for the State (in Special Criminal Anti-Terrorism Appeals Nos. 167 to 170 of 2018).

YLR 2020 KARACHI HIGH COURT SINDH 1724 #

2020 Y L R 1724

[Sindh]

Before Yousaf Ali Sayeed, J

Messrs FINE ENTERPRISES TRADERS through Partner/Representative and another---Plaintiffs

Versus

Messrs CONSTELLATION CO-OPERATIVE HOUSING SOCIETY LIMITED and 37 others---Defendants

Suit No. 1625 of 2016, decided on 12th December, 2019.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of agreement and injunction---Prima facie case---Interim injunction, refusal of---Memorandum of understanding--- Non-signatories---Plaintiff sought specific performance of memorandum of understanding (MOU) regarding 36 flats on the plea that the same was an enforceable agreement---Validity---Flat owners were not parties to MOU which envisaged further sale agreements to be entered into by them individually with plaintiff---Only document cited as the basis for the Housing Society (Society) taking such an initiative were minutes of meeting, which even if taken as reflecting an understanding in principle between the participants, did not reflect any authority having been conferred by them on the Society or its office bearers to bind them to a particular arrangement with any particular party---Flat owners on the basis of such document were not bound by the MOU to enter into individual sale agreements in respect of their respective flats---Plaintiff failed to make out a prima facie case, which was an essential ingredient for an injunction---Application was dismissed in circumstances.

Shariq-ul-Haq and 5 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975; Pakarab Fertilizers Limited v. Dawood Hercules Corporation Limited through Secretary and 8 others PLD 2015 Sindh 142 and Dewan Development (Pvt.) Ltd. and 2 others v. Messers Mybank Ltd. through Regional General Manager Karachi 2011 MLD 1368 distinguished.

Zia ul Haq Makhdoom for Plaintiff.

Muhammad Nauman Jamali for Defendants Nos.1, 3, 7, 8, 10, 11, 15, 23, 24 and 25.

Muhammad Orangzeb for Defendants Nos. 4, 9, 17, 20, 21, 22, 30, 36 and 37.

Muhammad Aziz Khan for Defendant No.26.

Bhajandas Tejwani for Defendant No.28.

YLR 2020 KARACHI HIGH COURT SINDH 1741 #

2020 Y L R 1741

[Sindh]

Before Nazar Akbar, J

Mir AZIZ ULLAH KHAN through Legal Attorney---Appellant

Versus

MUHAMMAD SABIR and another---Respondents

First Rent Appeal No.49 of 2019, decided on 12th February, 2020.

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

----S. 17---Constitution of Pakistan, Art. 10-A---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Sale agreement in favour of tenant---Suit for specific performance of contract filed on behalf of tenant--- Effect--- Fair trial---Requirements---Tenant refused to receive Court notice and he was proceeded ex-parte---Eviction petition was accepted and tenant was directed to vacate the demised premises within sixty days---Validity---Tenant had to first vacate the premises in case order for his eviction had been passed by the Rent Controller even suit for specific performance with regard to demised premises was pending---Tenant would be entitled for repossession of the demised premises if said suit was decreed---No sufficient cause had been shown on behalf of tenant for not appearing before the Rent Controller---Tenant had not been condemned unheard---Tenant had committed wilful and deliberate default in payment of rent and in contesting the case on merit---Opportunity of hearing had been afforded to the tenant but he himself remained absent---Right of fair trial could be extended to those who surrendered before the Court of law with honesty---Tenant was directed to vacate the demised premises---Appeal was dismissed, in circumstances.

Anand Kumar and Khawaja Izhar-ul-Hassan for Appellant.

Shahzad Afcal for Respondent No.1.

YLR 2020 KARACHI HIGH COURT SINDH 1752 #

2020 Y L R 1752

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

FARMAN ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.107 and Confirmation Case No.2 of 2017, decided on 3rd December, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Deceased was travelling in his car with family when accused persons tried to rob him and during exchange of fire one accused got injured resultantly they shot the deceased to death---Recovered pistol from one accused belonged to deceased---Injury received by one accused was certified by doctor and even not denied by accused which proved that exchange of fire took place during robbery and it led to death of deceased and firearm injury to accused---Both the accused persons were correctly identified by eye-witnesses who were at a very close distance to accused and had clearly seen them as they were present in the vehicle of deceased and accused persons were only a few feet away from them---Correct identification of accused by eye-witnesses was confirmed through identification parade held before Magistrate---One accused received firearm injury during robbery from the hands of deceased, the recovered empties from the place of incident matched with the pistols recovered from the possession of both the accused at the time of their arrest---Accused persons were rightly identified in identification parade held in the presence of Judicial Magistrate---High Court declined to interfere in conviction and sentence awarded to both the accused persons by Trial Court, as prosecution had proved its case beyond reasonable doubt---Appeal was dismissed in circumstances.

Zafar Hayat v. The State 1995 SCMR 896; State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408; Abdul Sattar and another v. The State 1981 SCMR 678; Muhammad Anwar v. The State 2017 SCMR 630; Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Zubair v. The State 2007 SCMR 437; Salamat Masih and another v. The State 1995 PCr.LJ 811; Muhammad Ashraf and others v. The State 2010 SCMR 407; Kashif Khan and others v. The State and others 2018 PCr.LJ Note 109; Muslim Khan and others v. The State 2002 YLR 2813; Muhammad Akbar v. The State 1998 SCMR 2538; Mumraiz v. The State 2011 SCMR 1153; Sikandar v. The State 2006 SCMR 1786; Muhammad Ashraf v. The State 2011 SCMR 1046; Murad Baloch alias Michael v. The State PLD 2004 Kar. 283; Sadam Hussain v. The State 2018 YLR 86; Zahid Hussain and others v. The State 2007 YLR 2355; Rizwan Ashiq v. The State 2018 PCr.LJ Note 41; Muhammad Hayat and 2 others v. The State 2015 YLR 1326; Muhammad Amin v. The State 2002 SCMR 1017; Amjad Ali and others v. The State PLD 2017 SC 66;. Dadullah and another v. The State 2015 SCMR 856 and Muhammad Bux v. The State 2015 YLR 519 ref.

Dadullah v. State 2015 SCMR 856 rel.

(b) Criminal trial---

----Presumption of innocence---Scope---Presumption of innocence existed in favour of accused that the offence has not been committed by him---Such presumption continues to be operative until the prosecution is able to prove its case through reliable trustworthy and confidence inspiring evidence beyond a reasonable doubt.

----"Beyond reasonable doubt", principle of--- Applicability--- Proof beyond reasonable doubt does not imply that prosecution must eliminate even fanciful doubts regarding criminality of accused persons.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Farhan Ahmed Mangi for Appellant No.1.

Farhan Ahmed Mangi for Appellant No.2.

Khadim Hussain, Addl. Prosecutor General, Sindh for the State.

Muhammad Farooq for the Complainant

YLR 2020 KARACHI HIGH COURT SINDH 1783 #

2020 Y L R 1783

[Sindh]

Before Syed Hasan Azhar Rizvi and Adnan Iqbal Chaudhry, JJ

Dr. OBAID UR REHMAN and 2 others---Appellants

Versus

Mrs. NEELOFER KHALID and 10 others---Respondents

H.C.A. No. 185 of 2015, decided on 23rd April, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 88, 90 & 129---Registration Act (XVI of 1908), S. 57---Suit for declaration and cancellation of instrument--- Gift--- Proof of---Procedure--- Limitation--- Burden of proof--- Balance of probabilities---Certified copy of a public document---Scope---Secondary evidence, production of---Procedure---Contention of plaintiff was that impugned gift deed was based on fraud---Suit was decreed by the Trial Court---Validity---Court below had tested the evidence of the parties on the basis of "burden of proof" rather than the "balance of probabilities"---Once parties had produced their respective evidence then burden of proof did lose its significance---Question would be material only where Court found evidence to be so evenly balanced that it could not come to any definite conclusion---Where both sides had led evidence and had cross-examined each other, Court would proceed to decide the case on the balance of probabilities---Disputed gift deed had not been tendered in evidence and only certified copy of the same had been produced on behalf of defendants without any objection on behalf of plaintiff---Said document did not bear signatures of the persons who had signed the original instrument---Certified copy of a document was admissible for the purpose of proving the contents of original instruments---Certified copy of gift deed was secondary evidence thereof---Original gift deed was in the possession of plaintiff but he had withheld the best evidence by not producing the same in the Court---Defendants had issued prior notice to the plaintiff to produce original gift deed in the Court---Defendants were entitled to produce certified copy of gift deed as secondary evidence in circumstances---Presumption of genuineness was attached to the said certified copy of gift deed---Plaintiff had not produced any evidence to rebut the said presumption---Registered document was not a proof of its execution when the executant had denied its execution---Attesting witnesses of gift deed had passed away---Execution of a document could also be proved by presumptive or circumstantial evidence---Plaintiff had to stand on his own evidence to prove fraud but there was nothing on record with regard to the same---Present suit was also time-barred---Plaintiff was not entitled for decree of the suit---Impugned judgment and decree were set aside and suit was dismissed---Appeal was allowed, in circumstances.

Syed Mushtaque Ali Shah v. Bibi Gul Jan 2016 SCMR 910 ref.

Syed Mushtaque Ali Shah v. Bibi Gul Jan 2016 SCMR 910 distinguished.

Qaisar Khatoon v. Moulvi Abdul Khaliq PLD 1971 SC 334; Khatun v. Malla 1974 SCMR 341; 'Law of Evidence' by M. Monir, 17th Edition; Qamar Sultan v. Bibi Sufaidan 2012 SCMR 695; Qamrual Hasan v. United Bank Ltd. 1990 MLD 276; Mobarik Ali Ahmed v. The State of Bombay AIR 1957 SC 857 and Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad PLD 2015 SC 212 rel.

Mohsin Kadir Shahwani for Appellants.

Ishtiaq A. Memon for Respondents Nos. 1-9.

Nemo for Respondents Nos.10-11.

YLR 2020 KARACHI HIGH COURT SINDH 1799 #

2020 Y L R 1799

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

The PROVINCE OF SINDH through Secretary Local Government Department and 3 other---Appellants

Versus

ABDUL RAHEEM KHAN (Late) through L.Rs. and others---Respondents

First Appeals Nos.113, 114 and 115 of 2017, decided on 3rd September, 2019.

(a) Land Acquisition Act (I of 1894)---

----Ss. 18, 23, 4 & 6---Reference to court---Enhancement of compensation on the basis of report of local commission---Scope---Impugned awards were dissonant with the direction of High Court wherein the varying nature of constituents of the property was required to be taken into account---Referee Judge had committed same infirmity while passing the impugned judgment---Valuation exercise conducted by the Court below was dissonant with the directives of S.23(1) of Land Acquisition Act, 1894 as value of suit property had been considered at the time of passing of awards instead of the time at which notification under S.4 of said Act was issued---Local Commission had submitted its report on the basis of opinion of real estate brokers which was unreliable---Valuation of suit property determined by the Court below was not supported by the factors upon which same had been predicated---Impugned judgment passed by the Referee Court was set aside and matter was remanded for a de novo determination of value of property in accordance with law---Appeal was allowed in, circumstances.

(b) Land Acquisition Act (I of 1894)---

----Ss. 18 & 54---Reference to court---Enhancement of compensation---Appeal filed on behalf of Provincial Govern-ment---Maintainability--- Contention of respondent was that appeal had not been filed by Land Acquisition Collector but by the Provincial Government and same was not maintainable---Validity---Land Acquisition Collector had passed award on behalf of Provincial Government---Land Acquisition Collector did perform his function while making award as an agent of the Government and he was not a person who had to pay compensation---Compensation had to be paid out of fund of the Provincial Government---Interested person to challenge the enhanced compensation was the Provincial Government itself---Provincial Government could file an appeal against the order/judgment whereby the quantum of compensation had been enhanced by the Court---Appeal filed on behalf of Provincial Government was maintainable, in circumstances.

State of Maharashtra (Public Works Department) v. Babu Rao Dnyanoba Chiddarwar and others AIR 1973 Bom. 231 and Land Acquisition Collector and others v. Muhammad Nawaz and others PLD 2010 SC 745 rel.

Jawad Dero, Additional Advocate General for Appellants.

Shaukat Ali Shaikh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 1833 #

2020 Y L R 1833

[Sindh]

Before Aqeel Ahmed Abbasi and Zulfiqar Ahmad Khan, JJ

Mst. NASIRA KHALEEQUE KHAN and 7 others---Appellants

Versus

MUHAMMAD LAIQ KHAN HAMDAM and 6 others---Respondents

H.C.A. No.283 of 2018, decided on 16th December, 2019.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Closure of evidence---Local commission was appointed for recording evidence of the parties but plaintiff did not appear before the commission---Trial Court passed order for dismissal of suit for want of evidence but same was recalled on appearance of plaintiff in person and final opportunity to lead evidence was granted---Plaintiff appeared before the Court and submitted that she could not engage a counsel and she was not in a position to lead her evidence---Trial Court closed evidence of plaintiff and dismissed the suit---Validity---Plaintiff availed ample opportunities to lead her evidence but she could not produce the same---Plaintiff even on the last date when the suit was fixed for a future date in her presence instead of producing evidence pleaded that she wanted to engage a counsel---Conduct of plaintiff did not warrant any concession nor a lenient view in her favour, in circumstances---Appeal was dismissed accordingly.

Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; Sufi Ghulam Mohyuddin v. Khushi Muhammad and 2 others 1997 SCMR 924 and Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali 2014 SCMR 637 rel.

Appellants in person.

Muhammad Aqil for Respondent No.1.

Nemo for Respondents Nos.2 to 3.

Saifullah, A.A.G. for Respondents Nos.4 to 7.

YLR 2020 KARACHI HIGH COURT SINDH 1843 #

2020 Y L R 1843

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

ALI NAWAZ and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-107 of 2013, decided on 20th September, 2019.

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

----S. 365-A---Abduction for ransom---Delay in registration of FIR---Scope---Normally delay in registration of FIR in cases of abduction for ransom occurs as relatives of abductee at the first instance remain busy in searching the abductee or in some cases they wait for contact to be established by abductors and always feel apprehensive of lives of their beloved ones---Delay in registration of FIR in cases of such like nature is not fatal to prosecution but has to be explained and is required to be considered with other evidence produced by prosecution for safe administration of justice---If evidence is free from all doubts then delay alone is not sufficient to disbelieve case of prosecution but if there is sufficient material available in evidence that shows that accused has not committed offence with which he is charged and such delay too would be fatal to case of prosecution.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Abduction for ransom---Appreciation of evidence---Delay in registration of FIR---Identification parade---Benefit of doubt---First Information Report was registered 5 days after incident of abduction for ransom wherein brother of complainant was allegedly abducted by accused persons---Accused persons were identified during identification parade---Names of dummies were not mentioned and only one identification parade was held in respect of two abductees---Dummies were same and identification parade of three accused persons was not conducted separately---No specific role was assigned to accused persons in the identification parade---Only putting hands on accused persons by witnesses was not sufficient to believe that those were the same accused persons who had committed offence---Such identification parade could not be relied upon for awarding punishment for imprisonment for life---Burden to prove guilt was upon shoulders of prosecution who was bound to prove its case beyond shadow of reasonable doubt---If single circumstance had created doubt in case of prosecution, its benefit was to go to accused not as a matter of grace but as a matter of right---High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge---Appeal was allowed, in circumstances.

Muhammad Dawood and others v. The State 2015 PCr.LJ 316; Azeem Khan and others v. Mujahid Khan and others 2016 SCMR 274; Mst. Mehboob Bibi and others v. The State 2017 SCMR 1835; Kanwar Anwar's case PLD 2019 SC 488 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Mohsin Almani for Appellants.

Mrs. Rameshan Oad, A.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1856 #

2020 Y L R 1856

[Sindh]

Before Abdul Mobeen Lakho, J

AMJAD and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1552 of 2019, decided on 25th November, 2019.

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

----Ss. 497 & 103---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Bail, grant of---Further enquiry---Non-association of private witnesses---Scope---Accused persons were alleged to have been found in possession of 1/5 grams of gutkha each---Police had confiscated the gutkha from a pan shop where usually people were present but police had failed to associate any person to become a witness of recovery---Police had not even mentioned the name of persons so approached to stand as mashir of the recovery---Owner of the pan shop was not invited to witness the recovery proceedings---Distance between police station and the place of recovery was about 01 kilometer but the police took five hours to report the matter and completed all the requisite formalities---Sections 269 & 270, P.P.C. were bailable and did not fall under the prohibitory clause of S.497, Cr.P.C.---Applicability of S.337-J, P.P.C. could only be determined at trial after recording of evidence which made the case of accused one of further inquiry---Petition for grant of bail was allowed, in circumstances.

2016 PCr.LJ Note 41; PLD 2017 SC 733 and C.P. No.D-868 of 2019 ref.

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

----S. 497---Bail---Principle---Scope---Law cannot be stretched in favour of prosecution particularly at bail stage.

----Presumption of innocence---Scope---Accused would be presumed to be a blue eyed boy of law until and unless he is found guilty of the charge.

Muhammad Riaz for Applicants.

Muntazir Mehdi, Deputy Prosecutor General for the State.

YLR 2020 KARACHI HIGH COURT SINDH 1861 #

2020 Y L R 1861

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

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

Versus

SHAH MUHAMMAD alias SHAHAN and 2 others---Respondents

Criminal Acquittal Appeal No. D-8 of 2007, decided on 11th October, 2019.

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

----Ss. 6, 9(c), 8(b), 12, 13, 19 & 37---Possession of narcotics, trafficking or financing the trafficking of narcotic drugs, acquisition and possession of assets derived from narcotic offences, forfeiture of assets of an offender, freezing of assets---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused persons were seen by raiding party in possession of narcotics when two of them escaped from the spot and one was arrested---Prosecution case was doubtful for the reason that two persons had escaped from the spot in the presence of trained officials of Anti-Narcotics Force, which was not understandable---Prosecution had failed to prove safe custody of the narcotic substance and its safe transmission to the Chemical Examiner---Trial Court had rightly pointed out infirmities in the case of prosecution---Judgment passed by trial court was neither arbitrary nor capricious---Scope of appeal against acquittal was considerably narrow and presumption of innocence was attached to the order of acquittal---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Scope---Where accused is acquitted from the charge by a court of competent jurisdiction, double presumption of innocence is attached to its order with which High Court is always slow to interfere.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

Mohsin Ali, Special Prosecutor ANF for Appellant.

None present for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 1877 #

2019 Y L R 1877

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

SIKANDAR ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-157, Criminal Appeal No.D-156 and Criminal Jail Appeal No.S-161 of 2019 along with Confirmation Case No.D-8 of 2019, decided on 29th January, 2020.

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

----S.302 (b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved---Accused and his two co-accused persons were charged for committing qatl-i-amd---Prosecution proved its case against accused by producing oral as well medical and other supportive evidence---Accused was fully implicated by all the eye-witnesses that accused fired four shots upon the deceased in their presence---Such fact was also proved from the evidence of mashir and investigating officer who collected four empties from place of incident---Injuries upon the deceased were certified by doctor who had also supported the case of prosecution---Prosecution asserted a motive but had failed to prove the same such failure on the part of prosecution reacted against sentence of death passed against accused on the charge of murder---High Court maintained conviction awarded by Trial Court but converted sentence of death into imprisonment for life.

Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 ref.

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

----Ss. 302 (b) & 34---Qatl-i-amd---Appreciation of evidence---Common intention--- Proof--- Presence of co-accused persons at place of occurrence---No role attributed to co-accused persons---Both accused persons along with their co-accused were charged for committing qatl-i-amd---All eye-witnesses examined before Trial Court did not level any allegation against co-accused persons but only deposed to the extent of their presence at the spot at the time when accused fired shots upon deceased---Both the co-accused did not participate in the occurrence nor caused any injury to anyone---No evidence was produced by prosecution that co-accused persons shared common intention with main accused for murdering deceased---No direct motive was alleged against both the co-accused by prosecution---High Court set aside conviction and sentence awarded to both co-accused persons by Trial Court and acquitted them of the charge as prosecution had failed to prove its case against them---Appeal was allowed in circumstances.

Habib-u-Rehman Shaikh for Appellants.

Syed Sardar Ali Shah, D.P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 1886 #

2019 Y L R 1886

[Sindh (Sukkur Bench)]

Before Aziz-ur-Rehman, J

WASEEM KHAN---Petitioner

Versus

ASIM HUSSAIN and 5 others---Respondents

Constitutional Petition No. S-2117 of 2018, decided on 20th November, 2019.

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

----Ss. 15 & 2(i)---Transfer of Property Act (IV of 1882), S. 53-A---Qanun-e-Shahadat (10 of 1984), Art.132---Ejectment of tenant---Default in payment of rent---Sale agreement--- Effect--- Eviction petition was accepted concurrently--- Validity--- Tenant had committed default with regard to payment of rent, electricity and water charges---Tenant had failed to file written reply and produce evidence to confront the witness of landlords---Assertions of landlords had been admitted by the tenant, in circumstances---Fact which had been deposed in examination-in-chief and not cross-examined should be deemed to have been admitted---Contents of document filed with the plaint or ejectment petition should be presumed as correct until and unless satisfactory material or evidence had been produced against the same---Mere sale agreement did not confer any right of ownership---Ejectment order could be executed against a person who had possessed demised premises through tenant---Concurrent findings recorded by the Courts below could be interfered with by the High Court in its constitutional jurisdiction when there was any material illegality, irregularity, mis-reading or non-reading of evidence on record---Orders passed by the Courts did not suffer from any illegality, irregularity, mis-reading or non-reading of evidence---Constitutional petition was dismissed in circumstances.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi 1996 SCMR 116; Bank Al-Falah Limited v. Inter Global Commerce Pakistan (Pvt.) Ltd.and 5 others 2017 CLD 1428; Wajid Ali Khan v. Shaikh Murtaza Ali and 2 others 2003 SCMR 1416; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28; Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335; Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. and 5 others 2006 CLC 342; Ghulam Rasool through Legal Heirs and others v. Muhammad Hussain and others PLD 2011 SC 119; Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111; Muhammad Arif v. Karachi Port Trust through Board of Trustees 2009 MLD 686 and Muhammad Sardar and 3 others v. Federal Land Commission through the Chairman, Inland and 27 others 2004 YLR 1689 rel.

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

----O. IX, R. 6 (1)---After introduction of verification of pleadings on oath, Court is empowered to proceed with the case, without calling for an affidavit-in-ex parte proof.

Malik Umar Aslam v. Sumaira Malik and another PLD 2007 SC 362 rel.

----Pleadings of the parties could not be considered as evidence until and unless assertions made therein had been proved through evidence or otherwise admitted by the opposite party or remained un-rebutted.

Muhammad Akram and another v. Mst. Farida Bidi and others 2007 SCMR 1719 rel.

Naveed Ali for Petitioner.

Muhammad Hanif Qureshi for Respondents Nos.1 to 4.

YLR 2020 KARACHI HIGH COURT SINDH 1932 #

2020 Y L R 1932

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD AZEEM---Petitioner

Versus

Mst. RANI through Special Attorney and 2 others---Respondents

Constitutional Petition No. S-67 of 2018, decided on 30th October, 2019.

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

----Ss. 15, 18 & 2(i)---Contract Act (IX of 1872), Ss. 196 & 197---Eviction petition by attorney--- Maintainability--- Change of ownership of demised premises---Notice to the tenant---Default in payment of rent and utility charges---Bona fide personal need of landlord---Scope---Evasive denial by tenant---Effect---Ratification---Need of husband of landlady---Scope---Eviction petition was accepted concurrently--- Validity---Landlady had not disowned the acts done/performed by her attorney---If eviction petition was filed by a person having no authority even then such defect could be ratified---Ejectment petition filed on behalf of attorney was not only competent but also maintainable---Evasive denials were no denials rather same could be construed as admission on the part of tenant---Tenant had failed to pay rent to the landlady through her attorney but he had deposited the same in the Court in the name of already deceased owner---Filing of eviction petition would amount to a notice under S.18 of Sindh Rented Premises Ordinance, 1979, despite that tenant had not paid rent to the landlady---Demised premises was required to the landlady for her personal use---Landlady was not prohibited to seek eviction of a tenant on the ground of personal need of her husband, which fell within the ambit of "personal need"---Tenant had committed default in payment of rent and electricity charges---No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below---Impugned orders had been passed in accordance with law, in circumstances---Constitutional petition was dismissed accordingly.

Said Rehman and others v. Mst. S. Sardar Begum and others PLD 2006 SC 554 and Messrs Latif Brothers through Proprietor v. Mst. Rasheeda PLD 2001 Kar. 41 ref.

Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275; Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342; Ghulam Rasool through legal heirs and others v. Muhammad Hussain and others PLD 2011 SC 119; Sardar Muhammad v. Khawaja Muhammad Nazar 2004 CLC 289; Ch. Shahbaz v. Rehmana Mirza 2003 CLC 917; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28 and Rashid Ahmad v. Messers Friends Match Works PLD 1989 SC 503 rel.

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

----S. 15---Constitution of Pakistan, Art. 199--- Ejectment of tenant---Constitutional petition---Scope---High Court in its constitutional jurisdiction could not interfere with concurrent findings of Courts below when there was no illegality and irregularity on record.

----Ss. 196 & 197---'Ratification'---Meaning and scope illustrated.

If an act is done by a person on behalf of another person but the same is without his 'knowledge' or 'authority' then also it either be 'ratified' or 'dis-owned' by such another person that is to say, in terms of Sections 196 and 197 of the Contract Act 1872. If, the another person [principal] 'ratifies' such an act already done/ performed then, such act, shall be deemed as 'duly performed' under his authority. The act of 'ratification', may be 'expressed' by or 'implied' in the conduct of such person, on whose behalf, the act was performed/done earlier.

(d) Cause of action---

----Meaning---Cause of action was a bundle or totality of essential facts which an applicant or a plaintiff prior to succeed had to prove.

Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335 rel.

Muhammad Habib Jalib for Petitioner.

Kashif Ali for Respondent No.1.

Nemo for Defendants Nos.2 and 3.

YLR 2020 KARACHI HIGH COURT SINDH 1967 #

2020 Y L R 1967

[Sindh]

Before Nadeem Akhtar, J

ANWAR AHMAD---Appellant

Versus

IQBAL AHMAD and others---Respondents

First Rent Appeals Nos. 50, 51, 52 and 53 of 2008, decided on 31st October, 2019.

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

----S. 17---Eviction of tenant---Personal need of landlord--- Scope--- Eviction petition was dismissed by Rent Controller on the grounds that the demised premises were commercial, (although not officially) therefore, landlord could not seek eviction of tenants to use the premises as his residence; that the ground floor of demised premises was not in habitable condition and that the building owned by wife of landlord could be used as residence---Validity---Registered lease deed showed that it was executed only for residential purposes---Landlord was fully justified in seeking restoration of the status of demised premises to residential---Landlord had pleaded personal need for himself as well as his family members for their residence, therefore, S.17(4)(b) of Cantonments Rent Restriction Act, 1963 did not apply as the demised premises was admittedly not commercial---Landlord could not have been deprived of his right merely because his spouse owned other properties---Tenants could not dislodge the evidence produced by landlord to prove that he was living in a rented premises---Landlord had succeeded in proving his case of personal need---Appeals were allowed, in circumstances.

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

----S. 17---Eviction of tenant---Personal need of landlord---Burden of proof---Scope---Landlord seeking eviction of his tenant on the ground of personal need cannot be deprived of such valuable and inalienable right provided to him by law merely on the ground that his spouse and/or any other member of his family owns other property(ies); the only burden on him is to prove that he requires the premises in good faith for his own use and occupation and he does not have any other property in the same vicinity to fulfill his such need---Law also permits the landlord to seek eviction of his tenant on the ground of personal need of his spouse and children.

Iftikhar Javaid Qazi for Appellant (in all Appeals).

All Respondents called absent.

YLR 2020 KARACHI HIGH COURT SINDH 1993 #

2020 Y L R 1993

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

FEROZ ALI GABA---Appellant

Versus

KARACHI FISHERIES HARBOUR AUTHORITY and 2 others---Respondents

H.C.As. Nos. 236 and 237 of 2014, decided on 8th October, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Lease agreement---Allegation with regard to encroachment on behalf of lessee---Notice for cancellation of lease---Suit for declaration and permanent injunction---Temporary injunction, grant of---Scope---Trial Court dismissed application for grant of temporary injunction---Validity---Lease hold right of a lessee was subject to the terms and conditions of lease-deed---Lessor in case of any violation had right to intervene and take steps as required under the law---Civil suit was pending before the Trial Court and it was not appropriate to discuss merits of the case---Different lease agreements executed at different times were on record which had not been considered while passing the impugned order by the Trial Court---Nazir of the Court was appointed by the High Court as local commission and he was directed to make inspection and submit his report with regard to encroachment if any, beyond the lease document---Impugned order passed by the Trial Court was set aside and matter was remanded with the direction to pass afresh order in the light of report of local commission---Appeal was dismissed, in circumstances.

Sattar Muhammad Awan for Appellant.

Muhammad Jaffar Raza for Respondent No.1.

Ms. Rabia Khan for Respondent No.2.

Syed Shabbir Ahmed Shah, Addl. A.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2001 #

2020 Y L R 2001

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

IRSHAD AHMED GOPANG and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos. D-1653, D-1670 to D-1673, D-1675 of 2019, D-1699 of 2018, D-1705, D-1706, D-1714, D-1721, D-1772, D-1755 of 2019 and D-200 of 2020, decided on 5th March, 2020.

(a) Bail---

----Appreciation of evidence---Principle---Deeper appreciation of evidence is not permissible at the stage of bail and material is to be assessed tentatively.

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

----Ss. 9(a) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, refusal of---"Prima facie case"---Accused persons were government officials who alleged to have embezzled huge public funds and had caused loss to national exchequer---Validity---Some accused officials prepared bogus vouchers / bills and some kept note of pre-audit and issued cheques and then released huge amount to contractors---Accused Bankers allowed the persons for receiving amount for which they were not authorized to receive the same as the cheques were not in their names and were cross cheques of government department---Financial loss to society from white collar crimes was greater than the financial loss from burglaries, robberies and larcenies committed by persons of lower socio-economic class---High Court noted with concern that it was high time to deter those from committing acts of corruption and to save economic structure of the country which was already facing a serious financial situation---While deciding bail petition, an elaborate sifting of evidence could be made but only tentative assessment was required---All accused persons in connivance with the officials of Education Works Division and Bankers had caused huge loss to government exchequer---Pre-arrest bail was declined in circumstances.

Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427; Mukhtar Ahmad v. The State and others 2016 SCMR 2064 and Abdul Khaliq v. State 2019 SCMR 1129 rel.

Abdul Gaffar Soomro for Petitioners (in C. Ps. Nos. D-1670, D-1671, D-1672, D-1673 and D-1714 of 2019).

Nisar Ahmed Bhambro for Petitioners (in C.Ps. Nos. D-1755, D-1772 and D-1675 of 2019).

Mukesh Kumar G. Karara for Petitioners (in C. Ps. Nos. D-1705 and D-1706 of 2019).

Ali Hyder Ada for Petitioners (in C.P. No.D-200 of 2020).

Qurban Ali Malano for Petitioners (in C.P. No. D-1653 of 2019).

Ali Raza Baloch for Petitioners (in C.P. No. D-1699 of 2018).

Mushtaque Ali Shahani for Petitioners (in C.P. No.D-1721 of 2019).

Muhammad Zubair Malik, Special Prosecutor NAB for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2024 #

2020 Y L R 2024

[Sindh]

Before Adnan Iqbal Chaudhry, J

MUHAMMAD KASHIF VOHRA---Plaintiff

Versus

MUHAMMAD ISMAIL and 3 others---Defendants

Civil Suit No. 2215 of 2014, decided on 26th November, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Non-deposit of sale consideration in the Court---Effect---Plaintiff was directed to deposit sale consideration in the Court but he failed to deposit the same---Validity---If plaintiff had failed to demonstrate that he was ready and willing to make payment of sale consideration to perform his part of contract then Court should decline discretionary relief of specific performance in his favour---Suit for specific performance of contract of immovable property filed on behalf of vendee could be dismissed without trial where plaintiff had failed to deposit sale consideration in the Court---Plaintiff had never challenged the order for depositing sale consideration in the Court---No contract existed between the parties---Suit was dismissed in circumstances.

Bin Bak Industries (Pvt.) Ltd. v. Friends Associates 2003 SCMR 238 ref.

Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Hamood Mehmood v. Shabana Ishaque 2017 SCMR 2022; Sunshine Enterprises (Pvt.) Ltd. v. West Pakistan Bank Terminal (Pvt.) Ltd. 2002 YLR 3815; Muhammad Waqaruddin v. Owais Ahmed Idrees 2015 MLD 49; Gul Aftab Abro v. Bushra Shakeel 2017 CLC Note 62; Shaikh Muhammad Asghar v. Muhammad Abdullah 2018 CLC 1409 and Haji Abdul Karim v. Florida Builders PLD 2012 SC 247 rel.

Plaintiff in person.

Ijaz Ahmed for Defendants Nos. 1, 3 and 4.

Nemo for Defendant No.2.

YLR 2020 KARACHI HIGH COURT SINDH 2053 #

2020 Y L R 2053

[Sindh]

Before Mohammad Karim Khan Agha and

Zulfiqar Ali Sangi, JJ

The STATE/ANF through Deputy Director Law---Appellant

Versus

BABAR KHAN and another---Respondents

Criminal Acquittal Appeal No. 543 of 2010, decided on 24th December, 2019.

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

----S.48---Limitation Act (IX of 1908), Art. 157---Appeal against acquittal---Limitation---Appeal against acquittal is regulated by Art. 157 of Limitation Act, 1908, which provides limitation of six months in filing of appeal against acquittal.

The State through Advocate-General Sindh, Public Prosecutor, Sindh, Karachi v. Raza Muhammad and another 1999 YLR 178 and The State v. Syed Ali Baqar Naqvi and others 2014 SCMR 671 rel.

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

----Ss. 9 (c) & 48---Criminal Procedure Code (V of 1898), S. 417---Recovery of narcotics---Appreciation of evidence---Appeal against acquittal---Charas weighing 100 kilograms was allegedly recovered from a vehicle van which was being driven by one accused while the other was sitting on the sacks containing the narcotics---Appeal against acquittal had distinctive features and legal approach to deal with---Appeal against conviction was distinguishable from appeal against acquittal because presumption of double innocence was attached in the latter case---Judgment of acquittal could only be interfered with when it was found to be based on evidence as capricious, perverse, arbitrary or foolish in nature and the same was lacking against accused---High Court declined to interfere in the judgment of acquittal of accused persons as the same did not suffer from any illegality---Trial Court had advanced valid and cogent reasons for passing a finding of acquittal in favour of accused persons and there was no legal justification to disturb the same---Appeal against acquittal was dismissed in circumstances.

State v. Abdul Khaliq and others PLD 2011 SC 554; Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 563 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

Habib Ahmed, Special Prosecutor ANF for Appellant.

Muhammad Ali Nawaz for Respondents Nos. 1 and 2.

YLR 2020 KARACHI HIGH COURT SINDH 2113 #

2020 Y L R 2113

[Sindh]

Before Irfan Saadat Khan and Mrs. Kausar Sultana Hussain, JJ

JAAG BROADCASTING SYSTEMS (PRIVATE) LIMITED through Duly Authorized Person---Appellant

Versus

Khawaja SHAMS-UL-ISLAM, ADVOCATE and 7 others---Respondents

High Court Appeal No. 199 and C.M.As. Nos. 1511 to 1513 of 2019, decided on 30th April, 2019.

Code of Civil Procedure (Amend-ment) Ordinance (X of 1980)---

----S. 15---High Court appeal---Interim order passed by Single Judge of High Court---Pending appeal proceedings, defendants, television channels, were aggrieved of ad-interim injunction issued by Single Judge of High Court and moved High Court appeal under S.15 of Code of Civil Procedure (Amendment) Ordinance, 1980---Validity--- Question as to whether some derogatory or negative remarks were used and aired by defendants against plaintiff and whether the same were violative of Arts. 4, 9, 14, 18, 23 & 24 of the Constitution and Pakistan Electronic Medial Regulatory Authority Rules, 2002, thereunder and Code of Conduct for Media Broadcasters or Cable TV Operators could only be dilated upon by the Single Judge before whom the matter was sub judice---Division Bench of High Court directed the parties to appear before Single Judge of High Court, on the date fixed--- High Court appeal was disposed of accordingly.

Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others 2006 SCMR 21 rel.

Mohamed Vawda for Appellant.

YLR 2020 KARACHI HIGH COURT SINDH 2123 #

2020 Y L R 2123

[Sindh]

Before Irfan Saadat Khan and Mrs. Kausar Sultana Hussain, JJ

Syed SHAN NAZIR AHSAN through L.Rs. and others---Appellants

Versus

Mst. SAKINA KHATOON and others---Respondents

High Court Appeal No. 54 of 2017, decided on 26th March, 2019.

(a) Maxim---

----Actio personalis moitur cum persona: personal right of action dies with the person.

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

----O.XXII, R.1---Death of defendants---Abatment of proceedings---During pendency of suit for declaration and injunction, two defendants died and their legal heirs sought abatement of proceedings under O.XXII, R.1, C.P.C.---Application filed by legal heirs was dismissed by Single Judge of High Court---Validity---Action could be abated on a death of a party but cause of action survived---Cause of action was the transfer of property, which was very much alive and surviving and could only be decided after leading of evidence by parties---Matter did not pertain to individuality of the persons but the cause of action was with regard to a property and its selling, transfer etc. therefore, such proceedings could not abate on the death of defendants--- If the matter was of personal individuality or personal injury, the position would have been different---Division Bench of High Court declined to interfere in the order passed by Single Judge of High Court---High Court appeal was dismissed in circumstances.

Ali Muhammad Mirza and others v. Mst. Sardaran and others PLD 2004 SC 185 ref.

Aga Zafar Ahmed for Appellants.

Mohamed Vawda for Respondents Nos. 1 to 7.

None appeared for the Respondents Nos. 8 to 11.

YLR 2020 KARACHI HIGH COURT SINDH 2127 #

2020 Y L R 2127

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

GHULAM NABI SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-132 and Criminal Jail Appeal No. D-137 of 2016, decided on 15th November, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody---Non-association of private witnesses---Non-production of roznamcha entry of malkhana---Non-production of vehicle---Effect---Accused persons were alleged to have been transporting 90 kilograms of hashish in a car---Names of officials accompanying the complainant as mentioned in the FIR contradicted with the departure entry of daily diary as it indicated two additional names, thus a serious doubt arose in respect of the names of police party which conducted the raid---Raid was conducted on a tip off but no serious effort was made by the police party to associate any independent or private witness---One of the prosecution witnesses had deposed that sample, sent to the Chemical Examiner, had three seals on it but the report of Chemical Examiner indicated only two seals---Statement of complainant did not disclose anything about the safe custody of the recovered narcotic---Neither the roznamcha entry of malkhana was produced nor the Incharge of malkhana was examined before the Trial Court---Safe custody of case property, in the absence of such evidence, remained questionable---Vehicle in which the narcotic was being transported was neither seized as case property nor produced during the trial---Case against accused persons was engulfed under the thick clouds of doubts---Appeals were allowed, in circumstances.

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

(b) Criminal trial---

---Benefit of doubt---Scope---Benefit of doubt shall always go in favour of accused.

K.B. Lutuf Ali Leghari and Mian Taj Muhammad Keerio for Appellants.

Ms. Remeshan Oad, Assistant Prosecutor General Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2139 #

2020 Y L R 2139

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

Syed AZHAR HUSSAIN---Petitioner

Versus

The NATIONAL ACCOUNTABILITY BUREAU through Chairman and another Respondents

C. Ps. Nos. D-2887 and D-5908 of 2018, decided on 7th February, 2020.

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

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Ground of hardship---Rule of consistency---Scope---Accused persons sought bail on the ground of hardship particularly when out of 338 witnesses only 12 witnesses were examined and also on the ground of rule of consistency as co-accused had been granted bail by the Supreme Court---High Court observed that accused persons were in jail for about 4 years and 9 months which might have translated their case into a case of hardship especially as the conclusion of the trial was not in sight---Rule of consistency was applicable as co-accused having similar role had already been granted bail by the Supreme Court---Petition for grant of post-arrest bail was allowed, in circumstances.

Mohammad Saeed Mehdi v. State and others 2002 SCMR 282; Ch. Muhammad Ashfaq v. State 2015 SCMR 1716 and Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 ref.

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

----S. 497---Bail---Ground of hardship---Scope---Jurisdiction to grant bail on the ground of hardship is to be sparingly exercised and only in cases of shocking and unconscionable delay---Bail on the ground of hardship is very restrictive.

Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 rel.

Zaheer-ul-Hasan Minhas for Petitioner (in C.P.No.D-2887 of 2018).

Mian Ali Ashfaq for the Petitioner (in C.P.No.D-5908 of 2018).

Sattar Muhammad Awan, Special Prosecutor NAB for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2146 #

2020 Y L R 2146

[Sindh]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

MUHAMMAD ANIS---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department and 6 others---Respondents

Constitution Petition No. 4084 of 2015, decided on 6th September, 2019.

Land Acquisition Act (I of 1894)--

----Ss. 4, 6, 12 & 16---Constitution of Pakistan, Art.24---Acquisition of land---Non-payment of compensation---High Court, jurisdiction of---Land of petitioner was acquired by the authorities for public purpose and no compensation was paid despite the possession had been taken over by the authorities---Validity---State could not deprive a person of his property without paying compensation therefor in accordance with law i.e. Land Acquisition Act, 1894---Compensation in terms of Land Acquisition Act, 1894, was to be made to the owners of property---If any owner was not paid the price/compensation of the property acquired within the reasonable time, then it amounted to depriving a person of his property without compensation and the same was in contravention of the fundamental right guaranteed under Art.24 of the Constitution--- Violation of a fundamental guarantee by the Constitution could not be countenanced by Courts of law, particularly the High Court on which powers were conferred as per Art.199(c) of the Constitution for issuing direction to any person including any government for enforcement of any one of the Fundamental Rights conferred by the Constitution---High Court directed the authorities to expeditiously make payment of compensation to petitioner---Constitutional petition was allowed accordingly.

Ikramul Haq and 11 others v. Province of Sindh and 3 others 2012 CLC 655; Soda and 4 others v. Province of Sindh and 2 others PLD 2005 Kar. 37; Mst. Mukhtiar Fatima v. Deputy Commissioner, Multan and 2 others 1997 MLD 1792; Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Multan Improvement Trust and others v. Sultan Mahmood and others 1989 MLD 441; Sh. Muhammad Saeed and others v. Deputy Commissioner Karachi PLD 1969 Kar. 314; Assistant Commissioner, Mianwali and another v. Muhammad Amir and 4 others 1987 CLC 2095; Nasreen Zahra v. Government of Punjab and others 2000 YLR 419; Rana Abdul Rasheed and another v. Ch. Nusrat Ali 2009 CLC 948; Syed Zianuddin and 9 others v. Assistant Commissioner-Cum-Collector, Quetta and 2 others 1996 MLD 731; Land Acquisition Collector and another v. Mian Khan and another PLD 2007 SC 620; Government of Sindh v. Sohail Akhtar and others 2002 SCMR 120; Mian Abdul Ghafoor v. Land Acquisition Collector Collector/Assistant Commissioner and 3 others 1993 MLD 2318; Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Imamuddin Shah v. Deputy District Officer (Rev.) and Land Acquisition Collector Sanghar and another 2005 MLD 69; Muhammad Shafi v. Province of Punjab and 4 others 2000 MLD 631; Muhammad Hussain and 2 others v. Board of Revenue, Punjab and 4 others 2003 MLD 801; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Mir Murad Ali and 10 others v. Sindh Seed Corporation and 2 others 1996 CLC 1244 and Younus Habib and others v. Imranur Rashid and others 2018 SCMR 705 ref.

Faisal Siddiqui for Petitioner.

Usman Tufail Shaikh and Khurram Ghayasuddin for Respondent/ KDA along with Jameel Ahmed Baloch, Additional Director (Land) KDA.

Shaheryar Mehar, Additional Advocate General, Sindh along with Khalilullah, Ms. Shamin Imran and Ms. Humaira Jatoi Internee, AG Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2166 #

2020 Y L R 2166

[Sindh]

Before Irfan Saadat Khan and

Mrs. Kausar Sultana Hussain, JJ

FARUQI HOUSE BUILDING CORPORATION (PVT.) LTD. and others---Appellants

Versus

M. SOHAIL SHAKIL FARUQI and others---Respondents

H.C.A. No. 198 of 2007, decided on 4th March, 2020.

Limitation Act (IX of 1908)---

----S .5---Title---Shares of a company---Sale agreement---Condonation of delay---Plaintiff claimed his title over company in question on the basis of a sale agreement executed in his favour by predecessor-in-interest of defendants---Single Judge of High Court dismissed the suit and decided the matter against plaintiff---Validity---When suit was within period of limitation, there did not arise any question of filing application under S.5 of Limitation Act, 1908---Sale agreement did not confer ownership rights as according to Contract Act, 1872, Transfer of Property Act, 1882 and Sale of Goods Act, 1930, until and unless a sale agreement was transformed into a sale deed, ownership could not be deemed to be legally transferred to a purchaser---Sale agreement in question could not be relied upon for the reason that the same was not having legal backing so as to confer ownership---No clause of alleged agreement stated that shares of the company were to be transferred to plaintiff or to his nominees prior to payment of entire sale consideration, which meant that it would be only after the end of 85 years, from the first payment and only then plaintiff or his family members or nominees would become owners of shares of the company and not prior to that period---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court---High Court Appeal was dismissed in circumstances.

Muhammad Hassan v. Shamsuddin 2013 MLD 1392; Muhammad Yousaf v. Irfan 2009 YLR 1688; Sarshar Ali v. Roberts Cotton Association Ltd. and another PLD 1963 SC 244; Mobeen Raza and another v. Messrs Alloo and Minocher Dinshaw 2016 PLC (N) 10; Jan Ara v. Muhammad Zubair 2012 CLC 1630; Muhammad Nawaz v. Member Judicial Board of Revenue 2014 SCMR 914; Binyameen v. Hakim 1996 SCMR 336; Messrs Oriental Shipping Co. Ltd. v. Panaghia Odigitria 1991 MLD 148; Abdullah Khan v. Government of Sindh 1986 MLD 1500; Muhammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmad Tarar and another 2016 SCMR 1; Adam Limited v. Mitsui & Company 2009 CLD 144; Sherin and others v. Fazal Muhammad and others 1995 SCMR 584; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Province of Punjab, through Member Board of Revenue v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147; Hajji Muhammad Shah v. Sher Khan and others PLD 1994 SC 294; Dilmir v. Ghulam Muhammad and others PLD 2002 SC 403; Central Cotton Mills Ltd. v. Naveed Textile Mills Ltd. and others 1993 MLD 42; Akbar Ali Sharif and others v. Syed Jamal uddin and others 1991 MLD 203; Bashir Ahmed v. Abdul Wahid PLD 1995 Lah. 98; Muhammad Saeed Akhtar Butt v. The Election Tribunal and others 1999 MLD 2793; Province of Punjab through Chief Secretary and others v. Malik Ibrahim and Sons and another 2000 SCMR 1172 and S.M. Shafiq Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan Moin through Legal-Heirs 2002 SCMR 338 ref.

Chaudhry Atif Rafiq along with Nadeem Ahmed for Appellants.

Badar Alam for Respondents Nos. 1 to 5.

Respondents Nos. 6 to 11: None present though served.

YLR 2020 KARACHI HIGH COURT SINDH 2180 #

2020 Y L R 2180

[Sindh]

Before Nazar Akbar, J

GHULAM FAREED---Petitioner

Versus

Mst. WAHEEDA and 3 others---Respondents

C. P. No. S-1486 of 2019, decided on 24th February, 2020.

Family Courts Act (XXXV of 1964)---

----S. 7---Family Courts Rules, 1965, R. 6--- Place of suing---Scope---Petitioner/husband assailed ex-parte judgment and decree passed by Family Court at district 'Ka'---Respondent/wife was married in district 'Kh', her parents lived in 'Kh', the kids were born in 'Kh' and even on the date of filing suit for maintenance they were in 'Kh'---No justification existed to come from 'Kh' to 'Ka' to obtain ex-parte decree---Ex-parte decree was obtained within three months---Execution was pending in 'Kh'---Judgment and decree passed by Family Court at 'Ka' was set aside and the case was sent to the Family Court at 'Kh' for decision afresh---Constitutional petition was disposed of accordingly.

Israr Ahmed Abro for Petitioner.

YLR 2020 KARACHI HIGH COURT SINDH 2188 #

2020 Y L R 2188

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ

The FAUJI FOUNDATION CHARITABLE TRUST through Major (Retd.) Ikram-ul-Haq---Petitioner

Versus

FEDERAL LAND COMMISSION through Chairman and 7 others---Respondents

Constitutional Petition No. D-620 of 2014, decided on 9th April, 2020.

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

----O.XXIX, R.1---Charitable Endowments Act (VI of 1890), Preamble---Authority by Trust to file petition---Delegation of power through authority letter of Trust filed by Manager---Principle---When delegation of powers through authority letter was not borne out of the resolution nor it was implied authority delegated to Secretary to further delegate such powers and approval from committee was inevitable---Such petition was not in consonance with O. XXIX, R. 1, C.P.C.

Khalil Ahmad v. Mst. Muhammad Jan 2004 SCMR 1034; Muhammad Yousuf v. Haji Sharif Khan PLD 2005 SC 705 and Imam Din v. Bashir Ahmed PLD 2005 SC 418 rel.

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

----O.XXIII, R.1---Withdrawal of suit---Filing of fresh suit---Principle---Litigant is only allowed to withdraw a lis and to file it again under O. XXIII, R. 1, C.P.C., if defects in petition are not curable---For fresh cause of action no permission is required.

----Ss. 19 & 21---Utilization of lands---Right of 'first option'---Principle---In order to have more than one option for consideration there has to be public awareness of such decision of government for public intent, only then the right of 'first option'can be given to one from whom such land was resumed.

(d) Land Reforms Regulations, 1972 [M.L.R. 115]---

----Ss. 19 & 21---Land Reforms Act (II of 1977), Ss. 9, 15, 16 & 17---Sindh Land Revenue Act (XVII of 1967), Ss.80, 81, 82, 83, 84, 85, 86, 88 & 90---Utilization of lands---Resumption of land---Arrears of land revenue---Arrest of defaulter--- Petitioner assailed resumption of land by government vide orders passed in year 1973---Petitioner was arrested in exercise of powers to recover arrears of land revenue to recover outstanding government dues---Validity---Number of letters were issued demanding therein land revenue at the amount determined by the authority---Such notices were not seriously taken into consideration by petitioner---Scheme of recovery included a process of attachment of holding in respect of which arrears were due and also included process against other immovable property of defaulter under S.90 of Sindh Land Revenue Act, 1967---Petitioner was holding 307 acres of land which they had retained as a consequence of Land Reforms Regulations, 1972 [M.L.R. 115]--- and Land Reforms Act, 1977---Before issuing warrants of arrest and detention order, the authority should have exhausted the remedy for recovery of land revenue in respect of land of which the rentals arrears was not paid out of land, which was owned by petitioner i.e. 307 acres---Unless such remedy was exhausted immediate jump to arrest and detention of his person and / or defaulter would not be a justified process under the scheme provided by Sindh Land Revenue Act, 1967---High Court was not a Court of appeal as far as two orders of resumption of land was concerned and were passed in year 1973---High Court could only exercise constitutional jurisdiction if any jurisdictional error was there or Constitutional provision was violated---High Court declined to interfere in the resumption of land orders passed in year 1973---High Court set aside warrants of arrest issued by authorities and permitted the authorities for recovery of land revenue proceedings could be initiated under Sindh Land Revenue Act, 1967, which could also include attachment of movable or immovable properties of petitioner---High Court further directed that only in such case recovery process and scheme did not bear fruit the authorities could resort to other means as the recourse of arrest and detention---Petition was dismissed accordingly.

Abid Mahmood Butt v. Manager S.B.F.C. 2002 YLR 1383; Government of Pakistan v. Qazalbash Waqf 1993 SCMR 1697; Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Muhammad Ishaq v. Muhammad Shafiq 2007 SCMR 1773; Shah Jehan Khan Abbasi v. Deputy Land Commissioner 2006 SCMR 771; Ahmed v. Ghama 2005 SCMR 119 and Muhammad Ramzan v. The Member Revenue 1994 SCMR 55 ref.

Jhammat Jethanand for Petitioner.

Allah Bachayo Soomro, Assistant Advocate-General for Official Respondents/Province of Sindh.

Muhammad Humayoon Khan, Deputy Attorney General for Respondents/D.A.G.

Farooq H. Naek for Respondents Nos. 5 and 6.

M. Sulleman Dahri for Respondent No.8.

YLR 2020 KARACHI HIGH COURT SINDH 2226 #

2020 Y L R 2226

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SULEMAN SHAH alias SUNNY and another---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No. 23 and Criminal Revision No. 34 of 2012, decided on 27th April, 2020.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for demanding ransom and murdering the brother of complainant---Record showed that neither of the accused was nominated in the FIR nor was any allegation levelled against them as there was no eye-witness of the incident of kidnapping or murdering the deceased---No direct ocular evidence was available against accused persons---No chain of circumstantial evidence was on record, which could connect the accused with the commission of offence---No Sims allegedly used for the demand of ransom was recovered from the possession of the accused---Mere recovery of the mobile set alleging that the Sims used for the demand of ransom were used in the said mobile set could not link the accused to the offence---Complainant's evidence concerning the payment of the ransom amount did not appeal to reason, logic or common sense regarding the approach to accused persons at different places and at different times continuing for about two months and was simply not believable---Medical evidence showed that a number of injuries were caused by incised wounds as opposed to blows which indicated the use of a knife, yet only an iron rod was recovered---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses--- Scope--- Accused were charged for demanding ransom and murdering the brother of complainant---Recovery of the dead body on the pointation of accused was doubtful for the reason that the witnesses of the recovery had given contradictory statements before the Trial Court, in that regard---Dead body was recovered after two months and four days---Prosecution witnesses gave contradictory version in respect of the recovery of the dead body---Independent person who worked with "Edhi Welfare" had given another version and stated about only one accused who pointed out the dead body---Contradictions made the pointation of the dead body doubtful---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused were charged for demanding ransom and murdering the brother of complainant---Recovery of the iron rod on the pointation of the accused was doubtful---Prosecution case was that the dead body was recovered on the pointation of the accused from a soap factory on 06.11.2009 and all the drums were taken out by the witnesses to reach the drum wherein dead body was lying and at that time, the said iron rod was not recovered but the same was recovered on 15.11.2009 (11 days later) from the same place from where the dead body was allegedly recovered---Said fact of not finding the iron rod and the dead body which was at the same place at the same time after an exhaustive search did not appeal to logic and created very serious doubt and suggested that it was managed and was foisted to strengthen the case of the prosecution---Even otherwise, the iron rod was not blood-stained and the fingerprints of accused were not on the same---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of the accused then the 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.

Ahtesham Ullah Khan for Appellants (in Special Anti-Terrorism Jail Appeal No.23 of 2012).

Saleem Akhtar Buriro, Additional Prosecutor General Sindh for the State (in Special Anti-Terrorism Jail Appeal No.23 of 2012).

Saleem Akhtar Buriro, Additional Prosecutor General Sindh for the State (in Criminal Revision No. 34 of 2012).

Ahtesham Ullah Khan for Respondents (in Criminal Revision No. 34 of 2012).

YLR 2020 KARACHI HIGH COURT SINDH 2237 #

2020 Y L R 2237

[Sindh (Hyderabad Bench]

Before Mahmood A. Khan, J

MUHAMMAD ASLAM---Petitioner

Versus

Mst. HAFIZAN BEGUM and 2 others---Respondents

Constitutional Petition No. 681 of 2011, decided on 18th September, 2019.

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

----S. 14---Ejectment of tenant---Delivery of vacant possession---Scope---Petitioner/ tenant assailed the concurrent findings of Rent Controller as well as Appellate Court wherein eviction application of the landlord filed under S.14 of the Sindh Rented Premises Ordinance, 1979 was allowed---Validity---Rent Controller as well as Appellate Court had exercised their powers as provided under the law---Petitioner in the matter was heard, evidence was got concluded and orders in accordance with jurisdiction were passed---Constitutional petition could not be treated as another appeal by re-appraisement of evidence and no element was shown whereby the Fundamental Rights of the petitioner were found to be jeopardized---Constitutional petition was dismissed.

Sabir Ali v. Zahoor Ahmed Khan 1988 MLD 31; Sh. Muhammad Khalid v. Fakhruddin 1992 CLC 2307; Mst. Razia Khatoon through L.Rs. v. Dr. Roshan H. Nanji and another 1991 SCMR 840; Bakhsh Elahi v. Qazi Wasif Ali 1985 SCMR 291 and Messrs Akbari Stores and others v. Additional District Judge Karachi South and others 2006 CLC 1196 ref.

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

----S. 14---Delivery of vacant possession---Purpose---Purpose of S.14 of Sindh Rented Premises Ordinance, 1979, is to cater for the special category of landlord by a convenient mechanism to acquire possession.

Nouman Raja for Petitioner.

Shamsuddin Memon for Respondent No.1.

YLR 2020 KARACHI HIGH COURT SINDH 2258 #

2020 Y L R 2258

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

RAJIB---Appellant

Versus

The STATE and others---Respondents

Criminal Jail Appeal No. D-261 and Confirmation Case No. D-19 of 2019, decided on 17th March, 2020.

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

----Ss. 302(b), 404, 337-H(2), 34, 147, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of death, rash or negligent act, common intention, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Accused was charged that he and co-accused, armed with deadly weapon, in furtherance of common intention assaulted on complainant party and murdered the cousin of the complainant by causing firearm injuries---Motive behind the incident was stated to be dispute between deceased and co-accused on the sale purchase of motorcycle---Complainant was eye-witness of the incident and had fully supported the case of prosecution, he was cross-examined at length but his evidence was not shattered---Eye-witnesses, who were the natural witnesses, had fully supported the case of prosecution, their evidence was fully supported by medical evidence, recovery of weapon viz pistol from the accused, which he had used in the commission of offence---Recovered empties from the place of incident matched with the pistols recovered from the possession of accused and as such the prosecution had proved its case beyond a reasonable doubt against the accused through trustworthy, reliable, cogent, oral as well as supportive evidence---Record transpired that the motive had not been proved by the prosecution against the accused---Motive set up by the prosecution was quite vague---If the prosecution asserted a motive but failed to prove the same then such failure on the part of the prosecution would go against sentence of death passed against a convict on the charge of murder---No evidence was on record against the accused about the motive but it was alleged against the co-accused who was absconder---Appeal was, therefore, dismissed and the conviction of the accused on the charge under S.302(b) read with S.34, P.P.C. was maintained but sentence of death was reduced to imprisonment for life, in circumstances.

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

----Ss. 302(b), 404, 337-H(2), 34, 147, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of death, rash or negligent act, common intention, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Accused was charged that he and co-accused, armed with deadly weapon, in furtherance of common intention assaulted on complainant party and murdered the cousin of the complainant by causing firearm injuries---Motive behind the incident was stated to be a dispute between deceased and co-accused on the sale purchase of motorcycle---Complainant had deposed about the motive that there was a dispute between the deceased and accused on money transactions over one motorcycle and Rs. 300000/- which accused owed---Witnesses deposed the same motive but they failed to give details of the motorcycle, the amount and when it was handed over to accused or when deceased demanded the same from the accused and in whose presence---Investigating Officer also failed to collect evidence about the asserted motive---Important aspect of the case was that the motive was not attributed against the present accused but it was alleged against the co-accused who was still absconder---Admittedly, prosecution had failed to prove the motive at trial---Appeal was, therefore, dismissed and the conviction of the accused on the charge under S.302(b) read with S.34, P.P.C. was maintained but sentence of death was reduced to imprisonment for life, in circumstances.

Ahmad Nawaz and another v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz and another v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 rel.

M.S. Azhar and Allah Bux Gabole for Appellant.

Ubedullah K. Ghoto for the Complainant.

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

YLR 2020 KARACHI HIGH COURT SINDH 2286 #

2020 Y L R 2286

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

GULAB alias JAMALUDDIN---Appellant

Versus

GHULAM MUHAMMAD and 5 others---Respondents

Criminal Acquittal Appeal No. D-1 of 2003, decided on 5th September, 2019.

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

----Ss. 302, 324, 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Appeal against acquittal---Ocular and medical evidence---Contradictions---Effect---Prosecution case was that the accused party set the hedge of complainant on fire surrounded the land and also made firing upon the complainant party, due to which, brother of complainant was hit and died while witness sustained injuries---Motive behind the incident was dispute over land---In the present case, presence of the complainant at the time of incident was highly doubtful for the reasons that evidence of complainant and injured was contradicted to each other on material particulars of the case---Complainant had deposed that absconding accused fired from his pistol which hit to the deceased and injured also fell down but on the same point, injured had deposed that respondent/ accused fired from his gun---Complainant in his cross-examination had replied that accused fired at the injured and deceased from the distance of 45/50 paces but Medical Officer in his cross-examination had replied that fires were made from the distance of twenty yards---Injured alleged that he sustained one fire arm injury but Medical Officer in the cross-examination had replied that injured had sustained two shots---Evidence of injured witness, in such circumstances was not trust worthy and confidence inspiring---No one had seen any of the accused while setting on fire the hedge, though they had claimed to be eyewitnesses of the incident---Said facts suggested that ocular evidence was contradictory to the medical evidence---Complainant had not been able to point out any serious flaw or infirmity in the impugned judgment---Appeal against acquittal was dismissed accordingly.

Raham Ali and 3 others v. The State 1976 PCr.LJ 17; Naumanullah and others v. The State and others 2019 YLR 1131; Muhammad Javed v. The State and another 2019 YLR 1208; Allah Ditta v. The State and another 2019 PCr.LJ 172 and Mansoor alias Mansab v. The State 1992 MLD 200 ref.

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

----Ss. 302, 324, 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Prosecution case was that the accused party set the hedge of complainant on fire, surrounded the land and also made firing upon the complainant party, due to which, brother of complainant was hit and died while witness sustained injuries---In the present case, incident took place on 23.06.2001 and the gun was recovered from the accused-respondent on 01.07.2001 and it was sent to Ballistic Expert on 24.08.2001---Prosecution had failed to produce evidence with regard to safe custody of the gun at police station and safe transmission to the Ballistic Expert---Station House Officer had taken the weapon to Ballistic Expert---Neither SHO nor incharge of the Malkhana had been examined to prove the safe custody---Such recovery was inconsequential to the prosecution case, in circumstances.

----Ss. 302, 324, 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of three hours in lodging the FIR---Effect---Prosecution case was that the accused party set the hedge of complainant on fire surrounded the land and also made firing upon the complainant party, due to which, brother of complainant was hit and died while witness sustained injuries---In the present case, FIR was lodged with delay of three hours---Police station was at the distance of 3-4 kilometres---No plausible explanation had been furnished for such delay, which was fatal to the prosecution case.

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

----S. 417---Appeal against acquittal---Scope---Ordinary scope of acquittal appeal was considerably narrow and limited---Obvious approach for dealing with the appeal against the conviction would be different and were distinguishable from the appeal against acquittal because presumption of double innocence of accused was attached to the order of acquittal.

Zaheer Din v. The State 1993 SCMR 1628 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

Ghulam Shabbir Shar for Appellant/complainant.

Sardar Akber F. Ujjan for Respondents Nos. 1 to 4.

Aftab Ahmed Shar, Additional Prosecutor General for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2323 #

2020 Y L R 2323

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

Mst. HANI through L.Rs.and 8 others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary Board of Revenue, Karachi and 3 others---Respondents

Constitution Petitions Nos. D-86 of 2007 and D-114 of 2010, decided on 20th March, 2019.

Civil Procedure Code (V of 1908)---

----S.12(2)---Fraud and misrepresentation--Order, setting aside of---Scope---Constitutional petition was filed wherein High Court directed Mukhtiarkar to handover possession of subject land to the petitioner according to her entitlement---Contention of applicant was that impugned order had been obtained through fraud and misrepresentation and matter was subjudiced before Civil Court---Validity---Serious allegations had been levelled by the applicant against the petitioner for committing fraud upon High Court through misrepresentation of facts---High Court observed that evidence was required to resolve factual controversy between the parties---No evidence could be recorded in constitutional petition by the High Court---Parties should approach the competent forum to resolve their entitlement in the subject land---High Court could not determine the claims and counter claims of the parties on the subject land in a disposed of matter---Member Board of Revenue was directed to probe the matter and determine the entitlement of the parties on the subject land---Petition for setting aside of impugned order was disposed of accordingly.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Ikram-ul-Majeed Sehgal v. Pakistan through Secretary Ministry of Interior and another 2013 CLC 386; Sayed Bashir Hussain v. Abdul Waheed and 3 others 2013 MLD 1675; Member Board of Revenue/Chief Settlement Commissioner Punjab, Lahore v. Abdul Majeed and another PLD 2015 SC 166 and Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38 ref.

2008 SCMR 236 rel.

Zahoor Ahmed Baloch for Petitioners (in C.P. No.D-86 of 2007).

Jhamat Jethanand for Applicants/Interveners (in C.P. No.D-86 of 2007).

Allah Bachayo Soomro, Addl. A.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2331 #

2020 Y L R 2331

[Sindh]

Before Fahim Ahmed Siddiqui, J

Rana NASIR ALI---Applicant

Versus

GUL AGHA and 6 others---Respondents

Criminal Revision Application No. S-4 of 2016, decided on 10th October, 2019.

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

----Ss. 3 & 4---Prevention of illegal possession of property etc.---Cognizance of offence---Possession on the basis of registered deed---Civil dispute---Scope---Applicant claimed that he had purchased the property from the original owner through a registered sale deed and that the respondent occupied the same when it was an open plot---Respondent claimed his right over the property through a sale agreement coupled with the registered power of attorney executed by the original owner---Applicant had stated in his complaint that the respondent had entered into the property after breaking the locks---Respondent could not be said to have occupied the property with some mens rea coupled with actus reus which was necessary ingredient for a criminal action against him---Fate of registered documents was required to be decided through a civil action, criminal action under Illegal Dispossession Act, 2005, was not proper---Revision application was dismissed, in circumstances.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Abdul Hafeez v. Additional District Judge-VII, South Karachi and others PLD 2009 Kar. 350; Zahid Hussain v. Muhammad Hassan Saleem Vato and others 2015 PCr.LJ 308; Alamgir Khan v. Ghulam Rasool and others 2015 YLR 2512; Muhammad Qasim v. SHO, Police Station Khudabad, Dadu and others 2016 MLD 1238 and Nazir Ahmed v. Tanveer Ahmed and others 2007 YLR 2236 ref.

Waqar Ali and others v. The State PLD 2011 SC 181 rel.

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

----S. 3---Prevention of illegal possession of property---Scope---Complaint under Illegal Dispossession Act, 2005 is not meant either to equate a civil proceedings or to frustrate a civil suit.

----Benefit of doubt---Scope---Benefit of doubt in a criminal case, initiated either through FIR or private complaint, always goes in favour of nominated or proposed accused.

Ms. Kauser Ameen for Applicant.

Muhammad Atiq Qureshi for Respondent No.1.

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

YLR 2020 KARACHI HIGH COURT SINDH 2347 #

2020 Y L R 2347

[Sindh]

Before Fahim Ahmed Siddiqui, J

SABIR SHAH---Applicant

Versus

The IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE EAST KARACHI and another---Respondents

Criminal Miscellaneous Application Nos. 205 of 2017, decided on 31st January, 2019.

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

----S. 514---Procedure on forfeiture of bond---Scope---Applicant assailed the order whereby Trial Court had directed forfeiture of entire surety amount---Surety contended that the accused had died---Validity---Record showed that the accused had filed a number of applications before the trial court with intimation that he was confined to bed and his legs were amputated---Trial Court on appearance of the applicant had issued notice under S.514, Cr.P.C. and had passed the impugned order---Trial Court could pass an order for forfeiture, if it was satisfied through certain proof that the accused had absconded away and it was also necessary for the court to record reasons/grounds for such belief---Show-cause notice was required to be given to the surety with direction to explain why penalty should not be imposed upon him and if sufficient cause was not given then further proceedings for recovery of the amount were to be carried out---Impugned order was set aside and the trial court was directed to release the surety documents.

Naseer Muhammad v. The State 1996 PCr.LJ 860 rel.

(b) Administration of justice---

----Duty of court---Scope---Court should be guided by the provisions of law and it has to use its judicial acumen and prudence before passing any judicial order---Order passed by a court outside the ambit of law cannot be termed as a judicial order.

Muhammad Aslam Bhutta and Ms. Sehar for Applicant.

YLR 2020 KARACHI HIGH COURT SINDH 2362 #

2020 Y L R 2362

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Khadim Hussain M. Shaikh, JJ

KALOO---Petitioner

Versus

PROVINCE OF SINDH through Secretary (Land Utilization) Department and 4 others---Respondents

Constitutional Petition No. D-872 of 2012, decided on 19th March, 2018.\

Constitution of Pakistan---

----Art. 199---Constitutional petition---High Court, jurisdiction of---Scope---Allotment of land---Proof---Petitioner claimed to be allottee of land in question and was aggrieved of order passed by Board of Revenue declaring the land as Government land---Validity---Exercise of extra ordinary Constitutional jurisdiction under Art. 199 of the Constitution was intended for providing an expeditious remedy in a case where illegality of impugned action of an executive or other authority was floating on the surface, which could be established without any elaborate inquiry into the questions involved in the matter---Petitioner had no clear or undisputed title over land in question, which was a government land, for which petitioner claimed himself to be an allottee---Petitioner failed to substantiate his claim of allotment of land in question to him---High Court declined to interfere in the matter as petitioner had failed to point out any illegality or any jurisdictional defect in the order passed by Board of Revenue---Constitutional petition was dismissed in circumstances.

Dr. Sher Afgan Khan Niazi v. Ali S.Habib and others 2011 SCMR 1813 and N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

Jagdesh R. Mullani for Petitioner.

Vasand Thari for Respondent No.5.

Allah Bachayo Soomro, Additional A.G. for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2367 #

2020 Y L R 2367

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD AYOUB---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 94 of 2019, decided on 3rd September, 2019.

Penal Code (XLV of 1860)---

----Ss. 392 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Robbery, common intention, act of terrorism---Appreciation of evidence--- Benefit of doubt--- Contradictory evidence---Contradiction in medical and ocular evidence---Safe custody---Non-association of private witnesses---Effect---Prosecution case was that the accused robbed the complainant; upon being chased by the police started firing at it and received a gun-shot at his right leg as a result of retaliatory firing from the police---Held; accused received one injury but none from the police party received any injury nor was its mobile damaged---Safe custody of weapons and empties was not established by producing malkhana entry nor was the incharge of malkhana produced---Police witnesses contradicted each other regarding the distance between them and the accused person---Blackening was seen around the entry-wound on the right leg of the accused which, according to medical officer, suggested that the injury was inflicted from a distance of four feet---Police witnesses also contradicted each other regarding the time consumed in the encounter---None from the public was cited as a witness of the alleged incident---Accused was acquitted of the charges under Ss.324 & 353, P.P.C. on the same set of evidence by the Trial Court---High Court, while extending benefit of doubt to the accused, acquitted him of the charge.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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 and Muhammad Zaman v. The State 2014 SCMR 749 ref.

Mumtaz Ali Khan Deshmukh for Appellant.

Abdullah Rajput, D.P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2388 #

2020 Y L R 2388

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

FARAZ AHMED BALOCH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.361 of 2018, decided on 21st May, 2019.

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

----Ss. 409, 420, 468, 471 & 109---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Appreciation of evidence---Benefit of doubt---Prosecution case was that the cheque amounting Rs. 14,80,000/- was written by the accused while committing forgery and was en-cashed by the co-accused, thus committed fraud and embezzlement with the Bank---Record showed that cheque was presented before the cashier, he had sent the same to the Operational Manager, who supervised the same and cash amount of Rs. 14,80,000/- was paid to the presenter---In the back side of the cheque, signature of the Operational Manager appeared, but he had denied the said signature and said that the same was fake one---Departmental Inquiry Officer that he had obtained handwriting from all concerned staff and received report that the cheque was written by accused---Mere filing the cheque did not constitute an offence to involve the accused/appellant with the commission of offence---Record transpired that on the basis of the verification of the cheque by the Operational Manager, the cheque was en-cashed---Investigating Officer of the case had failed to send the signature of the Operational Manager to hand writing expert to verify his signature as he had denied the signature by saying it fake one---Evidence of Branch Manager showed that nothing had been brought on record to connect the cashier/co-accused with the commission of offence and being a cashier, his duty was only that whenever any cheque was presented before him and if the amount was more than Rs. 5,00,000/- then for its supervision he had to send it to the Bank Manager---Said cheque was supervised by the then Bank Manager, hence nothing had been brought on record to connect the co-accused/appellant with the commission of offence---Further the flying entry of Rs. 15,00,000/- was initiated by an employee who was posted in clearing department and said entry was supervised by Branch Manager---Account holder was called who informed that he had forgotten his cheque book in the branch and subsequently the cheque book was secured from the drawer of Operational Manager, who was terminated from his service---Circumstances established that the prosecution had failed to bring the guilt against the accused/appellants beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Umar and another v. The State PLD 1968 Kar. 875; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Subedur Fazal Hussain v. Qazi Muhammad Bashir and 12 others PLD 1982 SC (AJK) 89; Qazi Abdul Ali and others v. Khawaja Aftab Ahmed 2015 SCMR 284; Land Acquisition Collector Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696; Abdul Qadir v. The State 2015 PCr.LJ 235; Mir Fayaz Ahmed v. The State 2010 PCr.LJ 1832; Malik Muhammad Iqbal v. The State 1987 PCr.LJ 247; Eskandar Ali v. Mst. Alhamra Begum and others PLD 1969 Dacca 214; S. Hifazat Hussain v. The State 1987 PCr.LJ 363; Nasim Ahmad v. The State 1992 MLD 620; Qasim Ali Malik v. The State and 2 others 2012 PCr.LJ 124 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubts in the prudent mind then 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.

Javed Ahmed Qazi for Appellant No.1.

Yousuf Moulvi for Appellant No.2.

Muhammad Ahmed and Mukesh Kumar, Assistant Attorneys General for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2401 #

2020 Y L R 2401

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

The STATE/ANTI-NARCOTICS FORCE through Assistant Director---Petitioner

Versus

SPECIAL JUDGE CONTROL OF NARCOTIC SUBSTANCES/IST ADDITIONAL SESSIONS JUDGE, BADIN and another---Respondents

Constitutional Petition No. D-527 of 2017, decided on 17th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 177---Ordinary place of inquiry and trial---Scope---Anti-Narcotics Force (ANF) District 'H' arrested the accused and secured five kilograms of charas within the territorial jurisdiction of District 'B'---Challan of the case was submitted before the Special Court at District 'B' who returned the same for its submission at District 'H' on the ground that police station of ANF was situated at District 'H'---Validity---Section 177, Cr.P.C. provided that every offence would ordinarily be inquired in and tried by a court within the local limits of whose jurisdiction it was committed---Alleged offence was committed at District 'B', therefore, Special Court at District 'B' was under legal obligation to have taken cognizance of the offence against the accused involved therein on police report for its disposal in accordance with law---Impugned order, being illegal, was set aside.

Muhammad Ayoub Kassar, Special Prosecutor ANF for Petitioners.

Muhammad Ismail Bhutto, Assistant Advocate General Sindh for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2411 #

2020 Y L R 2411

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

GHULAM HYDER through Superintendent, Central Prison---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-60 and Confirmation Case No. 15 of 2014, decided on 5th November, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife/daughter of complainant by hatchet blows---Record showed that the accused and deceased entered into marital bond four years prior to the incident and the complainant had never visited marital house of accused and deceased during such long period---Nothing was on the record which persuaded the parties to come closer on account of intervention of some notables---In such a situation, it was indeed surprising that all of a sudden, complainant and his two sons visited the house of accused and deceased---Purpose of such sudden and un-timing visit had not been disclosed by the complainant in his FIR, statement under S.161, Cr.P.C., or deposition recorded before the trial court---In presence of such a grave disputation between the parties, such visit by the complainant and his sons appeared to be dubious and the same could not be termed as normal and perceivable practice or routine---Allegedly, the accused became furious due to their visit and under such fit of fury and displeasure, he attacked upon the deceased (his wife)---Accused did not cause any harm to the complainant and his two sons and allegedly decamped from the scene of offence without even trying to onslaught upon them, while the complainant party was empty handed at that time---Complainant claimed in FIR that he and his sons had taken his injured daughter to hospital, but record belied that fact---Record showed that the deceased was taken to the hospital by the brother of the accused and mother of the deceased and this fact was also admitted by prosecution witnesses---Dead body was handed over to mother of the deceased but she was not made witness by the prosecution---Prosecution had purposely avoided to produce those important witnesses, which went against the prosecution as per provision of the Art. 129(g) of Qanun-e-Shahadat, 1984 and supported the defence plea---Complainant and his two sons, after the incident, remained out of the picture and they did not try to lodge FIR just after the incident and had waited till the death of the deceased---Dead body was not handed over to complainant or any of his sons but the same was handed over to the mother of the deceased with whom the complainant was not in good terms---Complainant in his statement recorded before Trial Court had admitted that the marriage of the deceased with accused was performed with the consent of his wife---Story narrated by the complainant seemed doubtful when considered under the juxtaposition of defence evidence---Marginal witness of all the memos, during cross-examination, had admitted that all the memos were prepared at police station---Said witness also stated that the clothes of the deceased were of light purple colour but he admitted that in memo they were mentioned as of black colour---Regarding recovered hatchet, witness had stated that the handle of the same was broken---Witness also stated that at the time of arrest of the appellant, the crime weapon i.e. axe was in his hand, which was not believable---Investigating Officer during cross-examination admitted that the accused was falsely implicated in the case---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Accused was charged for committing murder of his wife/ daughter of complainant by hatchet blows---Complainant had stated that he and his sons went to the house of deceased first time after her marriage with the appellant by observing free will and consent but son of complainant/ witness stated that they visited the house of her deceased sister prior to the incident also---Said witness further stated that his deceased sister married with accused on the consent of his mother, due to which, they were annoyed with her---Appeal against conviction, in circumstances was allowed as the prosecution had failed to establish its case against the accused beyond any shadow of doubt.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Accused was charged for committing murder of his wife/daughter of complainant by hatchet blows---Record showed that on the same day of incident the crime weapon was recovered but the same was sent to Chemical Examiner after seven days through an official who was not examined---Such recovery was of consequential in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Accused was charged for committing murder of his wife/daughter of complainant by hatchet blows---Record showed that ocular and medical version of the prosecution was not on the same line---Complainant in the FIR stated that accused inflicted two hatchet blows upon the head of deceased and one blow upon her left hand whereas, as per Medical Officer who conducted post mortem of the deceased the deceased had only two injuries, one over right arm and the other over temporal region of skull---Appeal against conviction was allowed and accused was acquitted.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive, proof of---Effect---Accused was charged for committing murder of his wife/ daughter of complainant by hatchet blows---Accused-appellant had described the love marriage of the deceased with accused as motive for doing so---Accused also opted for recording his statement on oath and he deposed on the similar lines in his statement recorded on oath---Accused, during cross-examination, remained firm regarding his statement in respect of the alleged incident---Similar line was adopted by the defence witness during examination---Accused in his statement on oath had stated that at the date and time of incident, he was not available at home and in his absence, the complainant and his sons entered in the house and caused fatal blows to deceased---Accused-appellant had further stated that due to his absence, his brother and relatives took his wife to hospital in injured condition---Similar statement was recorded on oath by his brother/witness during trial and both could not be shaken by prosecution during cross-examination---Motive which was described by the complainant in his FIR and during his examination, appeared to be week as compared to the motives described by the appellant in his statement recorded before Trial Court---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Conviction---Principle---Conviction could not be awarded to accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story was abducted by the prosecution.

Muhammad Jamil Ahmed for Appellant.

Miss Rameshan Oad, Assistant Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2418 #

2020 Y L R 2418

[Sindh]

Before Nazar Akbar, J

ZULFIQAR ALI SHERA through Attorney---Appellant

Versus

SHAUKAT ALI through L.Rs.---Respondent

IInd Appeal No. 97 of 2018, C.M.A. No. 6277 of 2019 and C.M.A. No. 7817 of 2018, decided on 10th March, 2020.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Appeal--- Compromise--- Suit was dismissed concurrently against which appeal had been preferred---Defendants had filed compromise application with the request to decree the suit against them on their admission of claim of the plaintiff--- Validity--- Compromise application with the clause of two months' time to be given to defendants to vacate suit property from the date of order on the said application had been filed---Two months' time to vacate suit property by the defendants had already expired prior to filing of present application---Terms and conditions of compromise should have already been complied with by the parties during the period of pendency of proceedings---Condition of order of the Court on such compromise was absurd---Decree for disposal of suit/appeal on compromise would not serve the purpose---Appeal on such compromise had become infructuous, in circumstances---Alleged compromise was one sided and contrary to the record and conduct of appellant---Compromise application was dismissed, in circumstances and counsel for the appellant was directed to address the court on merit of the case on the fixed date.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268 rel.

Munirur Rehman for Appellant.

YLR 2020 KARACHI HIGH COURT SINDH 2443 #

2020 Y L R 2443

[Sindh (Larkana Bench)]

Before Rasheed Ahmed Soomro, J

ABDUL JABBAR and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-104 of 2018, decided on 30th April, 2019.

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

----S. 395---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dacoity---Appreciation of evidence---Benefit of doubt--- Contradictory evidence---With-holding best evidence---Non-association of independent witnesses---Effect---Accused persons were alleged to have committed dacoity at the shop of the complainant---Complainant in his FIR had disclosed that the accused persons had taken away hard cash and five packets of cigarettes whereas in his examination-in-chief he had mentioned other articles--- Complainant in his examination-in-chief had deposed that the Soobedar had arrived on the spot and had collected empties but he had not disclosed the source of calling the Soobedar---Eye-witness of the incident named in the FIR, was not examined by the prosecution and in such eventuality it could be inferred that had the said person been examined he would not have supported the case of prosecution---Complainant had admitted that one of the accused persons used to purchase items from his shop and used to pay for them but the prosecution witness stated that the said person used to take items from the shop but he had never paid for them---Prosecution witnesses had admitted that 40/50 houses were situated near the place of incident but the prosecution did not cite any independent witness to strengthen its case---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of a reasonable doubt, if any, arising in the prosecution case about the guilt of accused appealing to the prudent mind is to be extended to the accused as a matter of right.

Muhammad Akram v. State 2009 SCMR 230 ref.

Irfan Badar Abbasi for Appellants.

Saeed Ahmed Panhwar for the Complainant.

Aitbar Ali Bullo, Deputy Prosecutor General for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2452 #

2020 Y L R 2452

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

SHAHID ALI alias GUDDO---Petitioner

Versus

The STATE---Respondent

Criminal Revision Application No. S-111 of 2018, decided on 10th May, 2019.

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

----S. 221---Charge, framing of---Object and scope---Object of charge is to enable an accused to know the precise accusations against him, which he is required to defend in the trial and to afford him sufficient time to prepare himself for that purpose.

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

----S. 227---Penal Code (XLV of 1860), Ss. 302, 324, 403, 504 & 34--- Qatl-i-amd, attempt to commit qatl-i-amd, misappropriation of property, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Alteration of charge---Application for altering of charge on the ground that the charge was not precise and relevant in regard to particular details of prosecution case against accused and had caused prejudice to understand accusation and set up his defence accordingly---After separation of trial of applicant, he ought to have been confronted only with his role in the charge, which per prosecution story was of having injured only deceased, and not describing generally all accused injuring all victims---Record showed that describing individual role of applicant in isolation of the incident in the charge would change the entire context of the incident making it difficult to understand the actual account of the incident---Serial order with which name of each accused followed respectively by name of each victim had been mentioned in first portion of the charge had in clear terms conveyed which accused was charged for injuring which victim---In the last portion of the charge "you" referred to all accused in same chronological order i.e. applicant, "Y" and "B"(co-accused persons) as had been mentioned in first part of the charge---Whole description of the incident as reported was mentioned in the charge---Defence tried to persuade that word "you" referred to the applicant only and he had been saddled with injuring all the victims, which was not with respect to him---No ambiguity existed in regard to role of applicant in the charge, which might be considered to have misled him---No case for interference in the impugned order was made out and the application, therefore, was dismissed.

2007 YLR 2795; PLD 2012 Sindh 307; 2011 SCMR 1145; 2010 MLD 180; 2005 PCr.LJ 489; 1980 SCMR 402 and 2015 PCr.LJ 1651 ref.

Rao Faisal Ali for Applicant.

Nazar Muhammad Memon, Addl. P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2458 #

2020 Y L R 2458

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

TAYYAB KHAN and another---Appellants

Versus

Mrs. BASHEERA BEGUM and others---Respondents

H.C.A. Nos. 312 and 316 of 2018, decided on 4th September, 2019.

Specific Relief Act (I of 1877)---

----S.42---Dispute as ownership of plot---Fresh inquiry---Appellants were aggrieved of order passed by Single Judge of High Court whereby revenue authorities were directed to conduct fresh inquiry---Validity---Mandate of order of Single Judge of High Court demanded that report was to be submitted by Senior Member, Board of Revenue after conducting an inquiry but report in question was submitted by Secretary, Board of Revenue---Secretary of Board of Revenue might have been holding charge of Senior Member but such fact was not indicated in report---Single Judge of High Court discussed report in question and had shown his discontentment regarding same observing that same was nothing but a reproduction of contents of an earlier report of Mukhtiarkar---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court---High Court Appeal was dismissed, in circumstances.

Ovais Ali Shah for Appellant (in H.C.A. No. 312 of 2018 and for Respondent No.1 in H.C.A. No.316 of 2018).

Ahmed Pirzada for Appellant (in H.C.A. No. 316 of 2018).

Altamash Arab for Respondents Nos.2 and 3 respectively (in H.C.A. No.312 of 2018).

Meeran Muhammad Shah, Additional Advocate General for Respondents.

YLR 2020 KARACHI HIGH COURT SINDH 2461 #

2020 Y L R 2461

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

NADEEM KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 162 and Confirmation Case No. 6 of 2018, decided on 26th August, 2019.

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

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

----Ss. 302, 324, 427, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, common intention, act of terrorism, causing explosion likely to endanger life or property, making or possessing explosive substance---Appreciation of evidence---Benefit of doubt---Ocular account was furnished by two eye-witnesses---Said witnesses served as gunman to deceased Police Inspector who was the target of the attack on account of his hunting down of terrorists and who was killed in the incident and as such they were natural as opposed to chance witnesses---Said witnesses had no enmity with any of the accused and had no reason to falsely implicate them---Furthermore, one of the eye-witnesses also sustained injuries on account of the blast which injuries had been corroborated by Medico-Legal Officer, who examined the injured witness shortly after the incident and found his injuries to be consistent with being caused by a kind of weapon of explosive ballistic material---Record showed that none of the eye-witnesses knew or had seen the accused persons before the incident---No hulia or description of any kind was given about the appearance of any of the accused persons except to say that they all had beards---Eye-witnesses observed the accused persons when they crossed them in the street---No reliable evidence was available as to how far away the General Store and Bakers was from Tailoring shop where the accused persons apparently waited with the suicide bomber---Appeals against conviction were allowed, in circumstances.

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

----Ss. 302, 324, 427, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, common intention, act of terrorism, causing explosion likely to endanger life or property, making or possessing explosive substance---Appreciation of evidence---Test identification parade---Infirmities---In the present case, out of the alleged four witnesses who had seen the accused persons at the scene of the incident only one witness/injured appeared before the identification parade---No cogent explanation had been given as to why other three eye-witnesses were not asked to attend the identification parade which raised suspicion---Identification parade took place nine months after the incident---Accused persons were all the time in police custody when they were arrested and could have been shown to witness prior to the identification parade who was also a Police Officer---Magistrate had noted that the accused persons had remained in police custody before the identification parade for at least two months and could have been seen by a number of people especially as they took the police to the scene of the incident---Accused persons were arrested yet the identification parade did not take place for an unexplained delay of sixteen days---CNIC numbers addresses and professions of the dummies were not recorded in the Magistrate's report---At least six out of the ten dummies were used in at least two out of the three separate identification parades which meant that by the last identification parade, the identifier was already familiar with six out of the ten dummies whom he had seen before in the earlier two identification parades carried out on the same day---Without sufficient hulia/description of the features and overall bearing of the accused being set out in an FIR or by an eye-witness in his statement recorded under S. 161, Cr.P.C. very shortly after the incident to a large extent made the identification parade of very limited evidentiary value, even if it was carried out strictly in accordance with the law as there was no yardstick by which it could be determined whether the identifier was actually picking out the correct accused whom he actually did see at the time of the incident especially when he only had a fleeing view of an unknown person---In the present case, there were three accused but for each it was simply stated that they all had beards---No distinction was made between any of them---Such evidence of identification could not be relied upon, in circumstances---Appeals against conviction were allowed, in circumstances.

Ghulam Qadir v. The State 2002 PCr.LJ 2007; Shafqat Mehmood and others v. The State 2011 SCMR 537; Raja alias Dad Muhammad alias Dado v. The State 2013 MLD 1225; Abdul Salam and others v. The State PLD 2005 Quetta 86; Muhammad Yameen alias Raja v. The State 2009 SCMR 84; Muhammad Shoukat v. The State 2012 YLR 1841; Nigah Ali Shah and another v. The State 1975 PCr.LJ 38; Asghar Ali alias Sabah and others v. The State 1992 SCMR 2088; Nasir Mehmood and others v. The State 2008 YLR 1755; Muzammal Hussain v. The State 2007 YLR 1627; Dadullah and another v. The State 2015 SCMR 856; Zakir Khan and others v. The State 1995 SCMR 1793; Bashirullah and another v. The State 2002 PCr.LJ 1183; Muhammad Sadiq v. The State 2017 SCMR 144; Khan alias Khani and another v. The State 2006 SCMR 1744; Muhammad Ehsan v. The State 2006 SCMR 1857 and Nazir Shehzad and another v. The State 2009 SCMR 1440 ref.

Azhar Mehmood v. State 2017 SCMR 135; Gulfam v. State 2017 SCMR 1189 and Kanwar Anwaar Ali's case PLD 2019 SC 488 rel.

Muhammad Hanif Kashmiri for Appellants.

Ali Haider Saleem, Deputy Prosecutor General for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2487 #

2020 Y L R 2487

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

BARKAT ALI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Jail Appeal No. S-64 and Criminal Acquittal Appeal No.D-39 of 2006, decided on 14th November, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused was charged that he and (acquitted) co-accused committed murder of the brother of the complainant---Motive behind the occurrence was stated to be that the brother of the deceased had insulted the accused---Record showed that the dead body of the deceased was found in the store of a school---Witnesses had claimed to have seen the accused at the door of school, but it was not understandable as to what were the circumstances which prevented them from catching hold of the accused, who had committed murder---Eye-witnesses had remained calm on seeing the accused though accused were empty handed was not believable---Record transpired that it was not the case of prosecution that the witnesses had gone to school on some information---In absence of such evidence, the prosecution witnesses could be held chance witnesses, as incident took place in a school and their houses were situated at some distance---Incident was un-witnessed as no one had seen the accused while committing the murder of the deceased through electric shock---Place of incident was situated in thickly populated area and no independent witness had been cited as witness by the prosecution though the school was surrounded by shops and houses---Motive was shrouded in mystery---No shred of evidence, much less tangible, had been led by the prosecution to distinguish the role of the accused from the acquitted co-accused---Accused had not confessed his guilt before the competent court of law---After acquittal of co-accused, to whom same and similar role like the accused had been attributed, in absence of strong corroboratory evidence, accused could not be convicted on the same evidence, which had been disbelieved qua the co-accused---Appeal against conviction was allowed, in circumstances.

The State v. Abdul Ghaffar 1996 SCMR 678; Abdul Rauf v. The State and another 2004 Cr.LJ 12; Khadim Hussain v. The State 2004 PCr.LJ 1102; Khurram Malik and others v. The State and others PLD 2006 SC 354; Amal Sherin and another v. The State through A.G. NWFP PLD 2004 SC 371; Mst. Dur Naz and another v. Yousif and another 2005 SCMR 1906; Zulfiqar Ahmed v. The State 2006 PCr.LJ 91; Fazal Wadood v. The State and other 2006 SCMR 1911; Binyamin alias Khari and others v. The State 2007 SCMR 778; Ghulam Nabi v. The State 2007 SCMR 808; Mobashir Ahmed v. The State 2009 SCMR 1133; Zaffar Abbass v. The State 2010 SCMR 939; Faisal Mehmood and another v. The State 2010 SCMR 1025; Gul Muhammad v. The State 2011 SCMR 670; Muhammad Ishaque v. The State 2018 YLR 786; Iftikhar Ahmed v. The State 2019 SCMR 1224; Allah Dino alias Baboo v. The State 2019 YLR 390; Doulat v. The State PLD 2013 Sindh 223; Imran v. The State 2015 MLD 46 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

Tariq Ali Shah and another v. The State and others 2019 SCMR 1391 and Shewaiz Rasool alias Shabi v. The State and others 2019 SCMR 1448 rel.

(b) Criminal trial---

----Witness---Chance witness---Scope---Chance witness in legal parlance was the one who claimed that he was present on the crime scene at the relevant time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and in normal course of events, he was not supposed to be present on the spot but at a place where he resided, carried on business or run day to day life affairs---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, in normal course, under the law would be about his absence from the crime spot---True that in rare cases, the testimony of chance witness might be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot were put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Sughra Begum v. Qaisar Pervaiz 2015 SCMR 1142 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence, crime empties and other incriminating material---Reliance---Scope---Accused was charged that he and his acquitted co-accused committed murder of the brother of the complainant---Record showed that the accused had produced one bag from room of his house, he had himself opened said bag from which he produced one pistol of 32 bore, 8 live bullet of G-3, 12 empty bullets of 7.62 bore and one toy---Accused, however, in his cross-examination, had admitted the fact that the case property produced in court was not sealed---Said recovery in circumstances, was inconsequential.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Accused not named in FIR---Acquittal of co-accused---Non-availability of independent corroboration---Effect---Maxim: falsus in uno, falsus in omnibus---Applicability---Scope---In the present case, not only the maxim "falsus in uno, falsus in omnibus" was attracted as the case of the accused was identical to the case of the co-accused who were acquitted by the trial court---In case the trial court acquitted the co-accused on one set of evidence, the same could not be used against the accused unless a clear distinction was noted by the court, which in the present case was missing---Appeal against conviction was allowed, in circumstances.

PLD 2019 SC 527 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Prosecution to prove its case against accused beyond reasonable doubt---If there was any doubt in the case, its benefit would accrue in favour of the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 rel.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Interference---Scope---Scope of acquittal appeal was considerably narrow and limited and obvious approach for dealing with the appeal against conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused was attached to the order of acquittal---Court would be very slow in interfering with such an acquittal judgment, unless it was shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading and non reading of evidence---Such judgment should not be lightly interfered and heavy burden was laid on the prosecution to rebut the presumption of innocence which the accused had earned and attained on account of his acquittal---Interference in a judgment of acquittal was rare and the prosecution must show that there were glaring errors of law and fact committed by the court in arriving at the decision, which would result into grave miscarriage of justice and the acquittal judgment was perfunctory or wholly artificial or a shocking conclusion had been drawn.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Muhammad Zafar and another v. Rustam Ali and others 2017 SCMR 1639 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

Khan Muhammad Sangi for Appellant.

Ubaidullah Ghaoto, Bakhshan Khan Mahar and Dhan Raj for Respondents.

Aftab Ahmed Shar, Addl. P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2509 #

2020 Y L R 2509

[Sindh (Larkana Bench)]

Before Muhammad Iqbal Mahar, J

TARIQUE and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. S-30 of 2015, decided on 26th July, 2019.

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

----Ss. 212, 353, 427, 149, 337-A(i) & 337-F(i)---Criminal Procedure Code (V of 1898), Ss. 342 & 103---Harbouring offender, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, damiyah---Examination of accused---Appreciation of evidence---Benefit of doubt---Non-association of independent witnesses---Contradictory statements of witnesses---Scope---Prosecution case was that the police party raided the otaq (communal guest house) of co-accused on advance information to arrest the absconding accused along with his companions but the accused persons fired upon the police party---Absconding accused though sustained injures but he was taken away by his companions and the others were arrested by the police---Police did not associate any private person, though the place of receiving spy information and place of incident were thickly populated areas---Otaq of co-accused consisted upon one room with one door where the accused persons were sitting but still the absconding accused was taken by his companions and the police remained silent spectators---Neither blood stained earth was secured from the room nor marks of firing were found at the walls and door of the otaq---Incident occurred at 2200 hours, FIR was lodged at 2330 hours but the medical certificates of the injured persons showed their arrival in the hospital at 11:00 pm, which was contradictory and did not corroborate the prosecution case---No question regarding medical evidence was put to the accused in their statements under S.342, Cr.P.C., hence medical evidence could not be used against them---Evidence of police officials was already disbelieved by the court with regard to recovery of unlicensed pistols from the accused persons---Several contradictions existed in the evidence of prosecution witnesses with regard to distance of place of information, distance of firing and the manner in which the alleged incident had occurred---Prosecution had failed to bring home the guilt of the accused beyond reasonable doubt---Revision application was allowed, in circumstances.

Muhammad Zaman and another v. The State PLD 2008 Kar. 348 and Muhammad Nawaz and others v. The State and others 2016 SCMR 267 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of every doubt is to be extended in favour of the accused.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Habibullah G. Ghouri for Applicants.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2523 #

2020 Y L R 2523

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD TUFAIL---Petitioner

Versus

Mst. SAMIYA and another---Respondents

Constitutional Petition No.S-899 of 2019, decided on 29th July, 2019.

Family Courts Act (XXXV of 1964)---

---Ss. 10 & 5, Sched.---Suit for restitution of conjugal rights---Pre-trial proceedings--- Scope--- Petitioner challenged order passed by Judge Family Court whereby suit filed by petitioner for restitution of conjugal rights was dismissed and the counter claim of khula preferred by defendant was entertained and she was granted khula in lieu of dower---Contention of petitioner was that opportunity of reconciliation was not provided by holding a proper pre-trial---Validity---Judge Family Court had observed that the matter was fixed for pre-trial proceedings on the date of passing impugned order but neither the petitioner nor his counsel appeared---No illegality or infirmity was found in the order of Trial Court and it was an indecorous plea that an opportunity of pre-trial was not provided to the petitioner---Petition was dismissed in limine.

YLR 2020 KARACHI HIGH COURT SINDH 2534 #

2020 Y L R 2534

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD ALMAN and 8 others---Petitioners

Versus

The SECRETARY REVENUE, BOARD OF REVENUE, HYDERABAD

and 6 others---Respondents

C. P. No.D-209 of 2019, decided on 14th February, 2019.

Constitution of Pakistan---

----Art. 199---Sindh Land Revenue Act (XVII of 1967), S. 164---Constitutional petition---Laches---Disputed questions of fact---Alternate remedy, availability of---Effect---Petitioners called assailed the order passed by Commissioner whereby he had cancelled certain revenue entries--- Validity--- Several disputed questions of facts were involved in the case---Civil suit was the only remedy to go through relevant record and evidences of the parties---Such dispute could not be resolved through constitutional jurisdiction as the High Court had limited jurisdiction to dilate upon such matters---Petition was hit by doctrine of laches as the same was filed after about 7 years of the accrual of cause of action---Constitutional petition was disposed of accordingly.

Syed Ghulam Ali Shah v. The Deputy Commissioner and others 1984 CLC 1789 and State Bank of Pakistan through Governor and others v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

Muhammad Sachal R. Awan for Petitioners.

YLR 2020 KARACHI HIGH COURT SINDH 2543 #

2020 Y L R 2543

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SIKANDAR ALI LASHARI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.261, 262, Special Criminal Anti-Terrorism Jail Appeal No. 311 and Confirmation Case (A.T.A.) No. 13 of 2018, decided on 20th April, 2020.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23-A, 24 & 25---Anti-Terrorism Act (XXVIII of 1997), S. 7---Qatl-i-amd, abetment, common intention, possessing unlicensed arms and ammunition, using a firearm with the purpose to commit any crime, act of terrorism---Appreciation of evidence---Accused were charged that they in collusion with each other committed murder of the cousin of complainant by causing firearm injuries---Motive behind the occurrence was stated to be the illicit relation of deceased with the daughter of accused---Record showed that complainant deposed entire incident whereas remaining witnesses of ocular account corroborated the statement of complainant---Witness stated that he heard the firing and stopped at one side and due to that incident harassment was created amongst the public---After firing deceased then injured was taken to hospital in a Rickshaw---In the identification parade, witnesses of ocular account identified absconder from his photo and in another identification parade also identified co-accused, who dragged out the deceased from the car and held his hands from flipside and absconder fired on deceased on which he was fell down, thereafter, more gunshots were fired at him---Data of two mobile phones was brought on record to show that deceased was in unvarying contact with daughter of accused----Record showed that it was not the prosecution case that accused personally committed the murder or he was present at the scene of offence but he was a mastermind, which fact had been proved satisfactorily---Entire evidence was heading towards the direction that the murder was committed on scheming and conspiracy of accused, who arranged or hired the killers to accomplish the job with the aim of satisfying his ego and vengeance---Accused as a father of a young girl might be annoyed or exasperated on knowing the love affair or romantic or passionate attachment of his daughter with deceased---However, at the same time he was also a Judicial Officer who served the judiciary for a long time so there must be a distinction within a common or an uneducated person and a Judicial Officer sentiments who was considered to be custodian of law to dispense justice in populace but he was in no way expected to take the law in his own hands for evil designs rather than legal recourse---Accused was conscientiously acquainted and well-versed to the consequences of contravention of law with an ultimate outcome of committing crime but despite knowing the consequences, he became instrumental and mastermind of a murder of deceased with no empathy or compassion---Due to brutal, spiteful and acrimonious homicide, a young man lost his life in a tender age leaving behind forever grief and misery to his parents and other family members---As far as the role of co-accused was concerned, all the eye-witnesses deposed that he was the same person who pulled out deceased from car and enfolded his hands from the back side and thereafter another person/absconder fired on deceased who fell down, thereafter further fires were shot at him---Despite lengthy cross-examination, the actual testimony could not be shaken---Composite effect of ocular testimony of witnesses demonstrated unequivocally that the testimony of eye-witnesses was not shaken or shivered with regard to the substantive points involved in that case---On mere hypothetical and imaginary contentions which were not taken even in the trial court, the ocular testimony which was inspiring confidence could not be ruled out or brushed aside---Co-accused was equally responsible for the murder under the principle of constructive liability that not only abetted the offence but also facilitated and enabled the perpetrators/killers as accomplice who came with common intention to murder the deceased---Circumstances established that the prosecution was providing all links made out one straight chain where one end of its noose fitted in the neck of the accused persons and the other end touched to the dead body of deceased and no link was missing from the chain---Appeal against conviction was dismissed, in circumstances.

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

----S. 34--- Common intention---Applicability and scope---If several persons would unite with common purpose to do any criminal offence, all those who assist in the completion of their object, would be equally guilty---Foundation for constructive liability was the common intention in meeting the accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence---In order to constitute an offence under S.34, P.P.C., it was not required that a person should necessarily perform any act with his own hand---If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them join together and aid or abet each other in the commission of an act, then one out of them could not/actually with his own hand, do the act but if he helped by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.

----Each criminal case had its own peculiar facts and circumstances---Satisfaction of the court depends upon the evidence produced by the parties.

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

----S.154---First information report---Scope and purpose---Purpose of FIR is to set criminal law in motion and to obtain first hand spontaneous information of occurrence in order to exclude possibility of fabrication of story or consultation or deliberation to devise or contrive anything to the advantage---First Information Report is also considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free.

(e) Criminal trial---

----Witness---Eye-witness account---Scope---If the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration.

Sardar Latif Khan Khosa along with Sardar Shahbaz Ali Khan Khosa, Malik Javed Iqbal Wains, Baqar Mehdi, Samil Malik Khan, Agha Mustafa Durrani and Ms. Sozeen Khattak for Appellant (in Special Cr.A.T. Appeals Nos.261 and 262 of 2018).

Abdul Razzak for Appellant (in Cr.A.T. Jail Appeal No.311 of 2018).

Peer Asadullah Shah Rashidi, Shahid Hussain Soomro, Sajid Hussain Soomro, Sharfuddin Jamali, Muhammad Dawood Narejo, Nadir Khan Burdi and Mir Muhammad Buriro for the Complainant.

Khadim Hussain, Additional Prosecutor General for Respondent.

Jawwad Dero, Addl. A.G. Sindh for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2582 #

2020 Y L R 2582

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD RAMZAN alias CHOTU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 409 of 2017, decided on 12th September, 2019.

(a) Sindh Arms Act (V of 2013)---

----Ss. 23 & 25---Criminal Procedure Code (V of 1898), S. 103---Unlicensed possession of arms---Use and possession of firearms or imitation firearms, search to be made in presence of witnesses---Appreciation of evidence---Benefit of doubt---Delay in sending recovered weapon to forensic laboratory---Non-examination of medical officer---Contradictory evidence--- Scope---Prosecution case against accused was that he along with other fired at the police but he was arrested in injured condition with an unlicensed weapon---Held; none of the police officials sustained any injury---Complainant himself investigated the case instead of handing over the same to any other police official---Place of arrest was near a road but no person was stopped to witness the arrest and recovery---Complainant had prior spy information---Complainant did not examine the Medical Officer who had medically checked-up the injured accused---Evidence of prosecution witnesses was contradictory---Delay in sending the weapon for ballistic examination report adversely affected the prosecution case---Prosecution had not succeeded in discharging its obligation of proving its case---Appeal against conviction was accepted, in circumstances.

Shahid Iqbal v. The State 2016 MLD 230; Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Yameen Kumhar v. The State PLD 1990 Kar. 275; Muhammad Khalid v. The State 1998 PCr.LJ 808; Moinuddin Waseem v. The State 2016 YLR 523; 2017 PCr.LJ 992; Hameer v. The State 2003 PCr.LJ 1452; 1987 PCr.LJ 1783; Abdul Khalique Shah v. The State SBLR 2019 Sindh 197; Mohammad Altaf v. The State 1996 PCr.LJ 440; Qaloo v. The State 1996 PCr.LJ 496 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 ref.

State v. Bashir and others PLD 1997 SC 408; Umed Ali v. The State 2018 MLD 1311; Yameen Kumhar v. The State PLD 1990 Kar. 275; Samandar alias Qurban and others v. The State 2017 MLD 539 and Yaqoob Shah v. The State 1995 SCMR 1293 rel.

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

----S. 103---Search to be made in presence of witnesses---Scope---Officials making searches, recoveries and arrests, are 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 actions and to restore public confidence.

State v. Bashir and others PLD 1997 SC 408; Umed Ali v. The State 2018 MLD 1311 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

----Reasonable doubt--- Duty of prosecution---Scope---Prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based and founded on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to be extended benefit of doubt as a matter of right---Accused cannot be deprived of the benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Khalil-ur-Rehman Abbasi along with Appellant.

Ms. Rahat Ehsan, Additional Prosecutor General, Sindh for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2597 #

2020 Y L R 2597

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ

MASOOD AHMED WASSAN and 3 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 13 others---Respondents

Constitutional Petition No. D-2180 of 2017, decided on 29th April, 2020.

(a) Colonization of Government Lands (Sindh) Act (V of 1912)---

----Ss.10(1)(5) & 10-A---Government lands--- Allotment--- Availability---Allotment of land for Housing Scheme over the land which had already been allotted for agriculture research purposes---Validity---Land in question had already been attached with Research based agriculture department and was never available for reallocation or reconsideration under Colonization of Government Lands (Sindh) Act, 1912---Land was reserved for agriculture department and revenue entry was made in revenue record as 'Government Seed Farm: in year 1904, i.e. more than 116 years ago---Revenue entry was much before the promulgation of Colonization of Government Lands (Sindh) Act, 1912, itself---Wisdom of authority who kept the land for research worked at the relevant time (1904) had far reaching effects and the country was being benefited by some of the wise decisions of the past---High Court directed the authorities to restore land in question to its original status as a research based agriculture land attached with agriculture department---High Court further directed to restore entry in revenue record as 'Government Seed Farm' and any subsequent entry was to be deleted---Constitutional petition was allowed in circumstances.

(b) Land Acquisition Act (I of 1894)---

----S.4---Acquiring agriculture land---Pre-condition---While acquiring land for any other purpose, the productivity of land being acquired was to be taken into consideration as against the purpose of acquisition---Decision was not to be based on desire or convenience---Such formula for acquiring land may cost more but approach is futuristic to save generations for years as fertile land can be saved.

Ali Ahmed Palh for Petitioners.

Allah Bachayo Soomro, Additional Advocate General for Official Respondents.

Ishrat Lohar for Respondents Nos.9 and 10.

Ayatullah Khowaja for Respondent No. 11.

YLR 2020 KARACHI HIGH COURT SINDH 2626 #

2020 Y L R 2626

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

MUHAMMAD MOOSA alias MOOSO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-124 of 2018, decided on 20th February, 2020.

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

----Ss. 302, 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons on seeing the police party made straight fire upon the police party to commit their murder and the firing was retaliated by police---During the encounter, one Police Officer received firearm injuries and died at the spot---Admittedly, the case was tried against 19 co-accused persons prior to the arrest of the present accused and after considering the entire evidence, Trial Court disbelieved the evidence of the prosecution and acquitted the said 19 co-accused---After the Judgment of co-accused, when the same set of witnesses appeared before the Trial Court for evidence against the accused, they again gave contradictory evidence on each aspect of the case---Prosecution failed to prove as to where said encounter took place---Prosecution also failed to establish the place of receiving firearm injury by the deceased---Prosecution witnesses admitted enmity in between two communities at the time of incident and it was also admitted by all the witnesses that most of the Police personnel who took part in the incident belonged to one community and all the accused persons belonged to the opposite community---Witnesses also admitted that several personnel including the son and brother of the accused were murdered by the persons of one community---First Information Report were also registered which showed that entire story of encounter had been managed---Circumstances established that the prosecution had failed to produce confidence inspiring and trustworthy evidence against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Examination of the accused---Scope---Prosecution case was that the accused persons on seeing the police party made straight fire upon the police party to commit their murder and the firing was retaliated by police---During the encounter, one Police Officer received firearm injuries and died at the spot---In the present case, Trial Court had not put to accused all incriminating pieces of evidence brought on record by the prosecution during the trial viz recovered empties of bullets and the bloodstained mud or clothes of deceased nor the medical evidence the post-mortem, but the same were relied upon by the Trial Court while passing the judgment of conviction against the accused which was totally against the scheme of criminal law---Appeal against conviction was allowed, in circumstances.

----S. 342---Power of court to examine the accused--- Scope--- All the incriminating pieces of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him, while recording his statement under S.342, Cr.P.C.---Words used in S.342, Cr.P.C. "for the purpose of enabling the accused to explain any circumstances appearing in evidence against him" are significance---If a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under S.342, Cr.P.C., the same could not be considered against him.

Muhammad Shah v. The State 2010 SCMR 1009; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148; Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 and Khizar Hayat's case PLD 2019 SC 527 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created doubt in the prosecution case, its benefits must go to accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

A.R. Faruq Pirzada and Ubedullah K. Ghoto for Appellant.

Abdul Rehman Kolachi, D.P.G. for Respondent.

YLR 2020 KARACHI HIGH COURT SINDH 2643 #

2020 Y L R 2643

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

NOOR HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-84 of 2019, decided on 7th November, 2019.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Safe custody---Delay in sending samples to the Forensic Laboratory---Non-production of sample-bearer---Effect---Accused was alleged to have been found in possession of 1050 grams of charas---No independent witness to the incident was produced---WHC (Writing Head Constable), who allegedly recorded FIR of the case, was not examined by the prosecution---Charas, on chemical examination, was found to be 1003 grams---Contraband was subjected to chemical examination with a delay of six days---Incharge of the malkhana and a constable, who took the charas to Chemical Examiner, was not examined by the prosecution to prove safe custody and transmission of charas---Case of prosecution was not free from doubt and the accused was entitled to its benefit---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and Tarique Pervaiz v. The State 1995 SCMR 1345 rel.

Mir Naeem Akhtar Talpur for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

YLR 2020 KARACHI HIGH COURT SINDH 2661 #

2020 Y L R 2661

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

TANVEER AHMED TAHIR---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Accountability Appeal No. 34, Criminal Accountability Acquittal Appeal No.49 of 2018 and C.P. No.D-6991 of 2018, decided on 8th November, 2019.

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

----S. 9---Corruption and corrupt practices---Appreciation of evidence---Benefit of evidence---Accused was charged that he and co-accused withdrew an amount of Rs.50 Million illegally through fake bills on account of Petrol, oil and lubricants (POL)---Record showed that there was no evidence of embezzlement or misappropriation on the part of accused---No prosecution witness had given any evidence against accused---Record transpired that accused was not the originator of the requests for payment on account of POL and the Investigating Officer carried out no investigation to find out as to who initiated such requests---Such request should have come through the Motor and Transport Division over which the accused had no command and control---No evidence had also come on record that accused had any influence over the Motor Transport Division or had anything to do with them---Evidence showed that the accused had a limited role in processing the bills (certainly less than AIGP Finance and the Finance Department who was acquitted by the Trial Court) and was more akin to a post box whilst the primary responsibility rested with other persons---Since the invoices came from the relevant petrol stations and no evidence was produced that the accused had anything to do with either the petrol stations or their owners or that he had prepared or connived with others in preparing fake petrol invoices---Accused did not sanction payment of any of the bills---Number of the documents which were relied upon to convict the accused were photocopies and the originals were not produced despite being objected to by the defence with the judge's noting that the objection would be decided at the final stage but the judge failed to decide said issue and as such those photocopy documents used to convict the accused were inadmissible in evidence and could not be relied upon to convict the accused---Only the role which the accused appeared to have played from the evidence was in disbursing payment of the bills on the instructions of AIGP Finance after the sanction which had already been made by the IGP---No illegality had been found in the sanction---Nothing on record to show that it was the function/role/duty of the accused to verify the bills---Even otherwise the evidence on record did not show that any later withdrawals from the police secret fund found their way into the hands of the accused---No prosecution witness had given evidence that the accused received any money nor way any money recovered from him---No evidence of any application, which was made for voluntary return, plea bargain or pardon on the part of the accused had been led by the Investigating Officer and no such documents had been exhibited---Actions of the accused at best could be seen as gross negligence/irregularities but no corruption and not to infer any mens rea from his actions---Evidence of the Investigating Officer did not add much weight to the prosecution case and indicated that the investigation was no carried out diligently---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Malik Munir Hussain and others v. National Accountability Bureau and others 2016 PCr.LJ 1896; Wahid Bakhsh Baloch v. The State 2014 SCMR 985; Rehman and others v. The State PLD 1968 Lah. 464; Nasima Bibi v. The State 2008 PCr.LJ 613; Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18; Ch. Muhammad Riasit and another v. Muhammad Asghar and another PLD 2010 SC (AJ&K) 29; Malik Din v. Chairman National Accountability Bureau and others 2019 SCMR 372; Ali Ahmed Baloch and others v. The State through NAB Authorities and others 2013 PCr.LJ 1089; Khadim Hussain Kutrio and another v. The State and others 2019 PCr.LJ 1001; Firdous Khan v. The State 2015 PCr.LJ 697 and Amjad Hussain v. NAB 2017 YLR 1 ref.

Mansur Ul Haque v. Government of Pakistan PLD 2008 SC 166; State v. Anwar Saifullah PLD 2016 SC 276; Air Marshal (RTD) Waqar Azim v. State 2002 YLR 1811; Sher Dil Khoso v. State 2011 YLR 105; M. Siddique-ul-Farooque v. State PLD 2002 Kar. 24; Sabir Ali v. The State 2011 SCMR 629; Nasir Mehmood v. State 2015 SCMR 423 and The State v. M.Idrees Ghauri 2008 SCMR 118 rel.

(b) Criminal trial---

----Duty of prosecution---Benefit of doubt---Scope---Prosecution must prove its case beyond a reasonable doubt---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Muhammed Shah v. State 2010 SCMR 1009; Ata Muhammed v. State 1995 SCMR 599; Tariq Pervez v. The State 1995 SCMR 1345 and Abdul Jabbar v. State 2019 SCMR 129 rel.

----S.417---Appeal against acquittal---Presumption---Judgment of acquittal should not be interjected until findings were perverse, arbitrary, foolish, artificial, speculative and ridiculous---Scope of interference in appeal against acquittal was narrow and limited because in an acquittal the presumption of the innocence was significantly added to the cardinal rule of criminal jurisprudence as the accused would be presumed to be innocent until proved guilty---Presumption of innocence was doubled.

The State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Farooq H. Naek, Riaz Ahmed Phulpoto and Usman Shaikh for Appellant (in Criminal Accountability Appeal No.34 of 2018).

Khalid Mehmood Awan and R.D. Kalhoro, Special Prosecutors NAB for Respondent (in Criminal Accountability Appeal No. 34 of 2018).

Khalid Mehmood Awan and R.D. Kalhoro, Special Prosecutors NAB for Appellant (in Criminal Accountability Acquittal Appeal No.49 of 2018).

Shahzeb Masud for Respondent (in Criminal Accountability Acquittal Appeal No.49 of 2018).

YLR 2020 KARACHI HIGH COURT SINDH 2700 #

2020 Y L R 2700

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD NAWAZ---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 193 of 2017, decided on 22nd August, 2019.

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

----Ss. 385, 387, 337-H, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, putting person in fear of death, or of grievous injury, in order to commit extortion, hurt by rash or negligent act, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delayed FIR---Scope---Accused was allegedly to have demanded extortion from the complainant---First Information Report was lodged with a delay of two months---No prosecution witness including the complainant had ever seen the accused---Case against accused could not be categorically proved without a voice recording---Complainant himself had admitted that he had a bad memory and could not remember from which phone numbers the extortion calls were made---Police had arrested the accused within 5 hours of the lodging of FIR, which was unbelievable---Accused, at the time of his arrest, had informed that he was waiting for his potential accomplices yet none was arrested---Car of complainant was not inspected for bullet marks---Injuries caused to the complainant's son were not relevant as the evidence proved that injuries had occurred when he had fallen off his motorbike---Prosecution could not prove that the demand of extortion was actually made from the complainant and even if such a demand was made from the complainant it was not proved by the prosecution beyond reasonable doubt that the accused had made the demand---High Court, while extending benefit of doubt to the accused, acquitted him of the charge, in circumstances.

Azeem Khan v. State 2016 SCMR 274 and Fayyaz Ahmed v. State 2017 SCMR 2026 ref.

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

----S. 154---Information in cognizable cases---Delay in lodging FIR---Scope---Long unexplained delay in lodging FIR is very often fatal to the prosecution case as it gives the complainant an opportunity to concoct a false case against the accused.

Muhammed Siddique v. State 2019 SCMR 1048 ref.

----Art.38---Confession to police officer---Scope---Confession made before the police is of no evidentiary value.

Muhammad Farooq for Appellant.

Ghulam Muhammad Khan for the Complainant.

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

Lahore High Court Lahore

YLR 2020 LAHORE HIGH COURT LAHORE 42 #

2020 Y L R 42

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD RAFIQUE---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Registrar and others ---Respondents

Writ Petition No. 64449 of 2019, decided on 6th November, 2019.

(a) General Clauses Act (X of 1897)---

----S. 24-A---Non-speaking order---Educational institution---Using unfair means in examination---Disqualification for a period of three years---Legality---Impugned orders of disqualification passed by the University authorities showed mechanical approach towards the matter---Impugned orders did not reflect application of mind and reasoning while deciding the matter, thus the same were non-speaking within the contemplation of S. 24-A of the General Clauses Act, 1897---Impugned orders were declared to be illegal and without lawful authority and the matter was remitted to the Secretary, Disciplinary Committee of the University with the direction to decide the same afresh through a reasoned speaking order---Constitutional petition was allowed.

(b) Educational institution---

----Using unfair means in examination---Maxim: Audi alteram partem---Applicability---Disqualification for a period of three years---Legality---Impugned orders passed by University authorities against the petitioner did not show that he was afforded reasonable opportunity of hearing to advance his defence, which amounted to violation of the principle of audi alteram partem i.e. no one should be condemned unheard---Impugned orders were declared to be illegal and without lawful authority and the matter was remitted to the Secretary, Disciplinary Committee of the University with the direction to decide the same afresh after providing proper opportunity of being heard to the petitioner---Constitutional petition was allowed.

----Audi alteram partem---Scope---No order affecting the rights of a party could be passed without affording opportunity of hearing---Maxim was applicable to judicial, quasi-judicial and non-judicial proceedings.

Naeem Abbas v. Government of Punjab through Secretary and 4 others 2017 PLC (C.S.) 404 ref.

Syed Tassaduq Mustfa Naqvi for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 50 #

2020 Y L R 50

[Lahore]

Before Muhammad Waheed Khan, J

EHSAN ULLAH KHAN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No.1200 and Criminal Revision No. 622 of 2014, decided on 17th June, 2019.

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

----Ss. 302(b), 201, 203, 217, 218, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused allegedly along with co-accused made firing, due to which the son of complainant sustained injuries and later succumbed to injuries---Accused persons while making aerial firing and creating panic in the territory went away---Alleged occurrence took place on 09.06.2009, when son of complainant received injuries, who was admitted to hospital on 12.06.2009---Investigating Officer got his statement recorded after obtaining permission from the Medical Officer, wherein deceased had stated that he was sitting in his clinic and found that accused armed with 30 bore pistol, proclaimed offender along with three unknown persons, had made firing and thereafter he went inside his clinic and one bullet hit on his body---Deceased, then injured, remained alive for sixty seven days but admittedly, he had not made any further statement qua the occurrence and died on 16.08.2009---Complainant, who was father of deceased never appeared before the police and had not made any statement claiming himself as eye-witness of the occurrence and never put forth his stance before the police---Occurrence allegedly took place on 09.06.2009, whereas private complaint was filed on 20.07.2010 with a delay of about thirteen months and in interregnum, he remained into a deep slumber---If at all he was aggrieved, as he claimed in private complaint, he should have approached to the high ups of police hierarchy or to the Ex-Officio Justice of Peace or to the High Court but admittedly, he had not approached any forum---Complainant had himself claimed to be eye-witness but admittedly, according to the medical report, in the relevant column of the person who brought the injured in hospital was written as one of the relatives---Had the complainant or witness been present at the place of occurrence, either of them should have accompanied the injured to the hospital---Two eye-witnesses, whose names had been introduced by the deceased himself while lodging FIR, have never been produced by the prosecution during the trial---Even, the deceased (injured at that time) had not mentioned while lodging FIR that his father/complainant or witness were also available at the place of occurrence---All the said circumstances made the stance of eye-witnesses doubtful and their evidence was not worthy of reliance without having independent corroboration---In such state of affairs, prosecution had withheld the best evidence available in the present crime---Prosecution had failed to prove its case against the accused beyond any shadow of doubt, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Art. 129(g)---Withholding material evidence---Effect---If any party withholds best piece of evidence then it can fairly be presumed that it has sinister motive behind it.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Lal Khan v. The State 2006 SCMR 1846 rel.

----Medical evidence---Scope---Medical evidence was always supportive in nature and did not corroborate the ocular version in any way because the medical evidence never identified the culpability of the accused rather it only supports the availability of injury at the person of victim.

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

----Ss. 302(b), 201, 203, 217, 218, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Allegedly, 30-bore pistol was recovered from the possession of accused---Record showed that no crime empty had been secured by the Investigating Officer from the place of occurrence and the alleged recovery had been affected from the place which was accessible to public-at-large---Recovered pistol had also not been sent for forensic analysis---Recovery allegedly affected from possession of the accused remained in consequential.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt was sufficient for acquittal of the accused.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Munir Ahmad and another v. The State and others 2019 SCMR 79; Muhammad Akram v. The State 2009 SCMR 230; Ayub Masih v. The State PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Barrister Salman Safdar for Appellant.

Mehmood Ahmad Chadhar for the Complainant.

Tariq Javed, District Public Prosecutor for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 74 #

2020 Y L R 74

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

NAEEM alias TITU and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.244-J and Murder Reference No. 323 of 2017, heard on 25th March, 2019.

(a) Criminal trial---

----Administration of justice---Principle---Each criminal case had its own peculiar facts and circumstances and had to be weighed on the judicial parlance.

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

----Ss.302(b), 324, 396, 397, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, dacoity, robbery or dacoity with attempt to cause death or grievous hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that 7/8 unknown accused persons armed with firearms signaled complainant party to stop their motorcycles, who did not stop, on which the accused persons made firing which resulted into injuries of four persons---Dacoits made search of brother of complainant and took out his mobile phone---Brother of complainant succumbed to the injuries at the spot---Complainant was not the eye-witness of the occurrence---Ocular account had been advanced through the statements of two witnesses---Date, time and place of occurrence was not disputed---Occurrence had taken place on the last day of September at 07:00 p.m. while in those days sun set at 06:00 p.m. and after one hour dark spread---No source of light was mentioned by the complainant through which the prosecution witnesses had witnessed the minute details of the occurrence---Crime report showed that besides the deceased, three persons including one witness had received firearm injuries, however, the record was silent to their extent as neither during the course of investigation nor during the course of trial, they were brought on record---Record showed that while making his statement during the course of trial, injured witness in categorical terms admitted that he never got recorded his statement before the Investigating Officer in terms of S. 161, Cr.P.C.---Prosecution version was that the deceased along with injured witness was riding on a motorcycle at the relevant time---Neither in the crime report the details of the motorcycle were mentioned nor during the investigation the same surfaced on record---Motorcycle was also not produced during the trial---Said fact also created flaw in the prosecution version---None of the accused-appellants was assigned any specific role---Prosecution version was burdened/loaded with major discrepancies, which created serious doubts in its authenticity---Prosecution could not adduce any cogent evidence to establish link of the accused-appellants with the occurrence---Prosecution had failed to bring on record any convincing material to establish that it were the accused-appellants who had committed the occurrence---Appeal was allowed and accused were acquitted, in circumstances.

----Witness---Injured witness---Statement of injured witness---Scope---Statement of injured witness straightway could not be taken as a gospel truth in stricto sensu, rather it required to be scrutinized with more care and caution while juxtaposing with other independent circumstances, because after receipt of injury, the vindictiveness enhanced.

Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216 and Jahangir Hayat v. The State PLD 1999 Lah. 285 rel.

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

----Ss. 302(b), 324, 396, 397, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, dacoity, robbery or dacoity with attempt to cause death or grievous hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Identification parade---Scope---In the present case, identification parade was conducted under the supervision of Judicial Magistrate---Perusal of proceedings of test identification parade available on record reflected that the same was conducted jointly---During the said proceedings only rows were changed---Witness had not put his hands over the head of the culprits during the proceedings---Such test identification parade was devoid of legal credence---Prosecution version was that the accused-appellant along with other assailants had participated in the occurrence, which had taken place on 30.09.2013 and he was also identified by the prosecution witnesses during the course of test identification parade---Said accused, during the course of trial, took the plea that at the relevant time he was lodged at the Central Jail---Report requisitioned from the Superintendent, Central Jail dated 31.03.2014, showed that accused-appellant remained lodged at Central Jail from 08.08.2013 and was released on 02.10.2013---Said fact straightway hit the authenticity of the prosecution version.

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

----Art. 22---Test identification parade---Joint test identification parade---Evidentiary value---Holding of joint test identification parade was not only against the law, the same was deprecated.

Lal Pasand v. The State PLD 1981 SC 142 Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Shafqat Mehmood and others v. The State 2011 SCMR 537 rel.

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

(g) Criminal trial---

----Benefit of doubt---Principle---One circumstance which created reasonable doubt in the veracity of the prosecution version could be taken into consideration for extending benefit of doubt.

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.

Rai Mudassar Iqbal for Appellants.

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

Nemo for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 93 #

2020 Y L R 93

[Lahore]

Before Muhammad Waheed Khan, J

SHAHZAD alias SAJJAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.34610/B of 2019, decided on 27th June, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Accused allegedly suffering from blindness from both eyes since last one year---Further inquiry---Scope---On seeing the raiding party, accused allegedly tried to run away but after encircling him, the raiding party managed his arrest and thereby recovered charas weighing 1510 grams wrapped in a shopper bag---Contention of petitioner was that he was suffering from blindness since last one year---Validity---Report submitted by Superintendent Jail transpired that petitioner was diagnosed as a case of bilateral blindness/non-viable eyes---Case of petitioner called for further probe into his guilt within the scope of S. 497(2), Cr.P.C.---Post arrest bail was allowed, in circumstances.

Aslam v. The State 2006 YLR 2972 ref.

Yousaf Rehmat Ali for Petitioner.

Ms. Tahira Parveen, DPP for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 97 #

2020 Y L R 97

[Lahore]

Before Muhammad Ameer Bhatti, J

MALEEHA SYED---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through Registrar and others---Respondents

Writ Petitions 52871, 54133, 56170 and 58578 of 2019, decided on 14th October, 2019.

(a) Pakistan Medical and Dental Council Ordinance (II of 2019)---

----Ss. 42 & 49---MBBS and BDS (Admissions, House job and Internship) Regulations, 2018, Reglns. 7 & 6----Constitution of Pakistan, Art. 199-----Constitutional petition---Medical and Dental College Admissions---Power of the Pakistan Medical and Dental Council ("PMDC") to make / alter regulations---Effect of Repeal of Pakistan Medical and Dental Council Ordinance, 1962---Saving of Regulations made under the Pakistan Medical and Dental Council Ordinance, 1962---Alteration of such regulations by PMDC---Omission of power of PMDC to make regulations for conditions of admissions, from S.42(2) of Pakistan Medical and Dental Council Ordinance, 2019---Scope---Question before the High Court was whether after repeal of Pakistan Medical and Dental Council Ordinance, 1962, did the PMDC, under the Pakistan Medical and Dental Council Ordinance, 2019, have power to make amendments in the saved MBBS and BDS (Admissions, House job and Internship) Regulations, 2018 which were framed under the repealed Ordinance---Contention of petitioners was that such amendment could not be made as such power had not been provided under S. 42(2) of the Pakistan Medical and Dental Council Ordinance, 2019--- Validity--- Under S. 49(2) of Pakistan Medical and Dental Council Ordinance, 2019, all regulations and actions made under the Pakistan Medical and Dental Council Ordinance, 1962 were protected and the same would be as good as framed under new Pakistan Medical and Dental Council Ordinance, 2019---Unless an authorization clause had been inserted (such as "until altered, repealed or modified by the new Council constituted under this Ordinance") the new PMDC, constituted under Pakistan Medical and Dental Council Ordinance, 2019, would not be able to touch such regulation(s) despite having the power of its framing---High Court observed that there existed an omission of inclusion of relevant provision for PMDC exercise power to frame regulations regarding conditions for admissions, under S. 42(2) of the Pakistan Medical and Dental Council Ordinance, 2019, and therefore, until such time said power was inserted by Legislature by amendment, MBBS and BDS (Admissions, House job and Internship) Regulations, 2019 as framed under repealed Pakistan Medical and Dental Council Ordinance, 1962 would remain as they were and PMDC was not entitled to make amendments in the same---High Court further observed that if it were to supply for said omission in the statute, the same would constitute an encroachment upon field of the Legislature therefore casus omissus could not be supplied by the High Court---Action of PMDC of making amendments to MBBS and BDS (Admissions, House job and Internship) Regulations, 2018 was held to be without lawful authority and was set aside---Constitutional petitions were allowed, accordingly.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); Amanullah Khan v. Chief Secretary, Government of N.-W.F.P. and 2 others 1995 SCMR 1856; Sabz Ali Khan v. Bismillah Khan and another 1997 SCMR 1781; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Dr. Mariam Raza Syed and another v. Pakistan Medical and Dental Council through Registrar and others PLD 2019 Lah. 558; Tahmasub Faraz Tayyab and 13 others v. Vice-Chancellor, University of Health Sciences, Lahore and 3 others PLD 2005 Lah. 261; Aqib Rasheed and 3 others v. Government of the Punjab through Secretary Health and 4 others PLD 2011 Lah. 1 and Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islamabad and 22 others 2012 CLC 1071 ref.

Nadeem Ahmed, Advocate v. Federation of Pakistan 2013 SCMR 1062; Zain Yar Khan v. The Chief Engineer, C.R.B.C., WAPDA D.I. Khan and another 1998 SCMR 2419; Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 and Amanullah Khan v. Chief Secretary, Government of N.W.F.P. and 2 others 1995 SCMR 1856 rel.

(b) Interpretation of statutes---

----Where wording of a provision of a statute was unambiguous and gave clear and obvious meaning then, same must be accepted without deviation---Ordinary meaning of the words used in a statute must be adhered to unless the same conflicted with the intention of the Legislature; which intention is to be collected from the statute itself---When a statute provided for a thing to be done in a particular manner, then the same shall be done in such manner or it shall not be done at all.

Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Shaukat Ali v. Muhammad Razzaq 2018 CLC 1624; Muhammad Andleeb Raza v. Muhammad Nazar and another 2019 YLR 1974 and TCS Private Limited through Authorized Representative and others v. Pakistan Post and another PLD 2019 Sindh 69 rel.

Rizwan Mushtaq, Morris Nadeem and Muhammad Sohail Anjum for Petitioners (in W.P. No.52871 of 2019).

Mian Muhammad Aslam for Petitioners (in W.P.No.56170 of 2019).

Rana Mumtaz Khan and Ms. Iqra Kiran for Petitioner (in W.P. No. 54133 of 2019).

Sahir Mahmood Bhatti and Mian Ismat Ullah for Petitioner (in W.P. No.58578 of 2019).

Ch. Muhammad Atiq and Mufti Ahtsham-ud-Din Haider for Respondent-UHS.

Imran Muhammad Sarwar, Legal Advisor for Respondents UHS (in W.Ps. Nos.54133 and 52871 of 2019).

Barrister Ch. Muhammad Umar and Rana Muhammad Ansar, Legal Advisors for PMDC.

YLR 2020 LAHORE HIGH COURT LAHORE 118 #

2020 Y L R 118

[Lahore]

Before Ch. Muhammad Iqbal, J

SHAHID HUSSAIN and others---Petitioners

Versus

MEMBER (S&R)/CSC/ ADMINISTRATOR (RP), PUNJAB---Respondent

Writ Petitions Nos.77-R, 123-R of 2009 and 20-R of 2011, decided on 30th September, 2019.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977---Transfer of property---Private treaty---Scope---No provision was available in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977 for alienation of property through private treaty.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, Paras. 1(d), 6, 11, 12 & 30---Civil Procedure Code (V of 1908), S. 79--- Constitution of Pakistan, Arts.174 & 199---Constitutional petition---Evacuee property, disposal of---Private treaty---Necessary party, absence of---Sale by auction---Petitioners were aggrieved of orders passed by Chief Settlement Commissioner to allow unrestricted public auction of suit property which was declared evacuee property---Validity---Chief Settlement Commissioner after repeal of evacuee laws was not competent to adopt whimsical procedure to dole valuable state land upon cherished one through a private treaty---State functionary was under strict obligation to show utmost fidelity to safeguard benefit of State and show extraordinary care and caution while dealing with disposal of State assets and apply their best intelligent potentials to protect and preserve State assets with their utmost integrity and bona fide---No provision existed in law or in scheme for sale of State land through private treaty and no policy existed in which Notified Officer was shown competent to dispose of urban evacuee property through private understanding---Mandatory for the State functionary that disposal of evacuee/ State land would be made through unrestricted public auction---Province was not arrayed as party which was violation of S. 79, C.P.C. as well as Art. 174 of the Constitution---No endeavor was made by petitioners to implead Province as party which was an inherent and fatal flaw---Provincial government was necessary party under the law as in any suit by or against government if Provincial Government was not made party then suit was not maintainable---High Court declined to interfere in order passed by Chief Settlement Commissioner as in absence of necessary party no effective decree or order could be passed---Constitutional petition was dismissed in circumstances.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another 2016 SCMR 14; Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1; 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; Shazia Gillani and others v. Board of Revenue, Punjab, Lahore through Member Colonies and others C.P. No.732-L of 2016; Civil Petition No.882-L of 2015; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 and Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115 ref.

A.K. Dogar, Nadeem Sarwar and Rana Asad Ullah for Petitioners.

Hafiz Muhammad Yusuf and Muhammad Yaqoob Khan Kanju for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 144 #

2020 Y L R 144

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

LIAQUAT ALI---Petitioner

Versus

SAID MUHAMMAD and 4 others---Respondents

C. R. No. 230 of 2009, heard on 10th June, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Original owner having admitted the sale agreement---Subsequent purchaser---Bona fide---Proof of---Requirements---Original owner got recorded his statement that he had no objection if suit was decreed---Contention of defendant was that he was bonafide purchaser of suit property---Suit was dismissed concurrently---Validity---Original owner had admitted sale agreement in favour of plaintiff and he had no objection if the suit was decreed---Subsequent purchaser was bound to prove that his purchase was bona fide and that too without knowledge of sale agreement in favour of plaintiff---Subsequent purchaser by having not produced evidence nor having cross-examined the witnesses of plaintiff but relied upon the evidence of other defendants, admitted the statement of plaintiff and his witnesses in circumstances---Impugned mutation in favour of subsequent purchaser had been attested after issuance of injunctive order by the Trial Court---Plaintiff was not required to produce two witnesses to prove alleged agreement in his favour as original owner had admitted the same---Subsequent purchaser was required to produce his defence for non-suiting the plaintiff---Courts below fell in error while dismissing the suit---Subsequent purchasers were not bona fide purchasers of suit property---Impugned judgments and decrees passed by the Courts below were against law and without jurisdiction and same were set aside---Suit filed by the plaintiff was decreed---Revision was allowed, in circumstances.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Bagh Ali v. Mst. Ayesha and others 2013 SCMR 551 rel.

Tanveer Iqbal Khan for Petitioner.

Muhammad Younas Bhatti for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 159 #

2020 Y L R 159

[Lahore]

Before Sardar Ahmed Naeem and Tariq Saleem Sheikh, JJ

NAUBAHAR alias BAHARU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 127136 of 2017, heard on 25th April, 2019.

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

----Ss. 9(c) & 48---Qanun-e-Shahadat (10 of 1984), Art. 133---Constitution of Pakistan, Art. 10-A---Recovery of narcotics---Appreciation of evidence---Fair trial---Due process of law---Cross-examination by accused himself---Accused was arrested by authorities and 1415 grams of Charas was allegedly recovered---Trial Court convicted and sentenced accused to imprisonment for four years and six months---Plea raised by accused was that he was not afforded an opportunity to cross-examine witnesses through advocate---Validity---Decision of case was delayed because of non-availability of prosecution witnesses---Trial Court committed material irregularity while conducting proceedings and not affording an opportunity to accused to produce his counsel---High Court set aside judgment passed by Trial Court and remanded matter for decision after affording an opportunity to accused to cross-examine prosecution witnesses---Appeal was allowed accordingly.

Zahira Habibullah Sheikh and another v. State of Gujarat and others AIR 2006 SC 1367; Muhammad Sukur Ali v. State of Assam AIR 2011 SC 1222; Powell v. Alabama, 287 U.S. 45 (1932); Betts v. Brady, 316 U.S. 455 (1942); Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Arizona 384 U.S. 436 (1966); Maneka Gandhi v. Union of India AIR 1978 SC 597; M. H. Hoskot v. State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon and others v. Home Secretary, State of Bihar AIR 1979 SC 1369; Khatri and others v. State of Bihar and others AIR 1981 SC 928; Rafiq Ahmed @ Rafi v. State of Uttar Pradesh AIR 2011 SC 3114; Muhammad Hussain alias Julfikar Ali v. State (Govt.of NCT), Delhi AIR 2012 SC 750 = 2012 SCMR 1610; Shahsawar v. The State 1998 PCr.LJ 1758; Khatri and others v. State of Bihar and others 1981 SCR (2) 408; Suk Das and another v. Union Territory of Arunachal Pradesh AIR 1986 SC 991; Abdul Aziz and another v. The State 1984 PCr.LJ 530; Kunnummal Mohammed and another v. State of Kerala AIR 1963 Kerala 54; Yaqoob alias Qobi v. The State and another 2014 MLD 69; Mehtab Ahmed v. The State and others 2015 YLR 1132; Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1983 SC 291; Niaz Ahmad v. The State 1984 PCr.LJ 1054; Khadim v. The Crown PLD 1954 Lah. 69; Muhammad Sharif v. The State PLD 1973 Lah. 365; Rab Nawaz v. The State and another 2011 MLD 1558; Ghulam Shakhi v. The State 1979 PCr.LJ 1016; Hakim Khan and another v. The State and another 1975 SCMR 1; Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Zafar Iqbal v. The State PLD 2015 SC 307; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Shahid v. The State 2010 PCr.LJ 812; Ghulam Sarwar v. The State 2010 MLD 1775; Waqar and another v. The State 2013 PCr.LJ 1279; Sadam Hussain v. The State 2018 MLD 1025; Abdul Ghafoor v. The State 2011 SCMR 23; Muhammad Waqar v. The State 1991 PCr.LJ 197; Walidad alias Dadoo Maachi v. The State 1997 MLD 1697 and Muhammad Yaseen alias Mithou and another v. The State 2010 PCr.LJ 1253 rel.

Rai Salah-ud-Din Khan Kharal for Appellant.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

Muhammad Sher Abbas, Waqas Ali Mazhar and Muhammad Javed Khan (LHCRC) Research Officers.

YLR 2020 LAHORE HIGH COURT LAHORE 176 #

2020 Y L R 176

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

MUHAMMAD AMIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 407 of 2009, heard on 25th March, 2019.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Delay of about more than twenty five hours in lodging the FIR---Effect---Occurrence took place at 4.00 p.m. on 29.11.2007 in the house of the accused, in which both the deceased and injured had received injuries with blunt weapon---First Information Report was lodged on 30.11.2007 at about 5.35 p.m. by the real brother of the deceased, after an unexplained delay of about 25 hours and 35 minutes of the occurrence---Possibility of consultation and deliberation for cooking up a besuiting story could not be ruled out, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Delay in conducting the post-mortem and medical examination---Effect---Occurrence took place at 4.00 p.m. on 29.11.2007 in the house of the accused, in which both the deceased and injured had received injuries with blunt weapon---Post-mortem examination was conducted after the delay of about 35 hours of the occurrence---Delay in conducting medical examination of the injured and post-mortem examination over the dead body of the deceased had exorbitantly caused serious suspicion about the correctness and veracity of the prosecution case

Muhammad Rafique v. The State 2014 SCMR 1698 rel.

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused while armed with iron pipe had inflicted injuries on the persons of deceased, his wife as well as on the person of khalazad of his wife---Ocular account had been furnished by three persons including injured and complainant---Admittedly, both the eye-witnesses were real brothers of the deceased---Presence of said witnesses at the relevant time at the place of occurrence was doubtful---Admittedly, said witnesses were residents of a different place, which was 04-kilometer away from the place of occurrence---Record showed that the marriage of the deceased with the accused took place 13/14 years before---Although they were issue-less but there was nothing on the record to suggest that they were leading a dog and cat life or prior to the alleged occurrence and other unpleasant incident had taken place, necessitating or compelling the real brothers of the deceased to come forward for beseeching their sister and exhorting the accused to live an amicable life by way of mending his ways---Neither complaint of torture had statedly been made by the deceased to her brothers prior to the occurrence nor it had been asserted anywhere in the evidence by them---Acclaimed presence of said witnesses at the place of occurrence, without any particular or tangible cause or object had created a serious doubt for accepting their presence at the spot---None out of the said two witnesses had made any effort either to save the deceased or the injured from the alleged assault of the accused, when he was not armed with any conventional weapon of offence rather he had inflicted the injuries only with an iron pipe---Post-mortem examination report and the Medico-Legal Certificate of injured and evidence of Medical Officers indicated that the deceased had received as many as four injuries; three lacerated wounds and one mark of swelling on its temporal region---Injured had received as many as five blunt weapon injuries on his person---Said description of injuries allegedly caused by blunt weapon, according to the prosecution case, on the body of the injured and the deceased had, stirred up judicious anxiety requiring determination as to whether the accused could have inflicted said injuries on the person of the deceased and the injured in presence of eye-witnesses---Record revealed that none out of said witnesses either tried to intervene or made any tangible effort to overpower the accused in order to save the deceased and injured from the assault of the accused---Unnatural conduct and behaviour of the witnesses casted serious doubt about their presence at the spot---Witnesses were greater in number as compared to the accused, who was alone---Witnesses could easily overpower the accused---Record transpired that injured was resident of 7/8 kilometers away from the place of occurrence---Injured had no ostensible reason or business for his legitimate presence in the house of the accused---Injured had claimed that in-fact out of infuriation/provocation, the accused started giving blows on the person of the deceased and when he tried to save her, the accused also inflicted injuries on his person---Medical examination of the injured showed that he received as many as four injuries including a fracture---Number and gravity of injuries indicated that injured had not received the injuries incidentally---Circumstances suggested that injured had not received injuries on his person during the wake of his effort to save the deceased from the assault of the accused, rather it showed that he had been inflicted injuries by the accused out of some retaliation/ reaction due to some extraordinary reasons/circumstances--- Weak motive had been stated by the prosecution for the offence allegedly committed by the accused, which was not believable---Circumstances established that prosecution case was not free of doubts, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Khan and another v. State 1999 SCMR 1220 rel.

(d) Criminal trial---

----Injured witness---Statement of injured witness---Scope---Stamps of injuries on the person of the witness might have established his presence at the relevant time at a particular place of occurrence but the injuries itself were not the proof that whatever the witness was telling was truth.

Shahid Ullah v. Eid Marjan and 2 others 2014 PCr.LJ 1684 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Iron pipe was allegedly recovered on pointing out of the accused underneath the cot lying in his residential room, which was not stained with blood---No corresponding report could have been procured to fortify the recovery of weapon of offence---Since, the peculiar account of the prosecution had been disbelieved, therefore, the recovery of weapon of offence, lost its significance.

(f) Criminal trial---

----Benefit of doubt---Principle---Single instance causing a reasonable doubt in the mind of the court, entitled the accused to the benefit of doubt not as a matter of grace but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mudassir Altaf Qureshi for Appellant.

Nemo for the Complainant.

Muhammad Abdul Wadood, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 212 #

2020 Y L R 212

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

GHULAM RASOOL alias GUDDA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 261-J-ATA of 2016, decided on 13th May, 2019.

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

----Ss. 365-A, 201, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-L---Kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, rioting armed with deadly weapon, unlawful assembly, act of terrorism, absconsion---Appreciation of evidence---Benefit of doubt---Accused were charged for abducting complainant and his companion for ransom and after receiving ransom, they were released---Motive of the occurrence was that a quarrel took place earlier between a goldsmith and co-accused and the complainant helped the injured in getting medically examined from hospital as a result of which co-accused was sent to jail---Co-accused used to extend threats on telephone and he nourished grudge---Prosecution case revolved around the statements of the abductees---Abductees had saddled the accused-appellant with the responsibility of being present at the place of confinement when they were brought there by the co-accused---Abductees had statedly identified the accused-appellant in an identification parade held after six years of the occurrence---Prosecution failed to produce the Call Data Record of witness or any voice recorded transcript of any conversation between the abductors and the witness---Failure of prosecution to produce the Call Data Record of the cell phone of the witness forced to disbelieve the said witness---Similarly, complainant had stated in his examination-in-chief that the accused settled the ransom amount with his brother on telephone---Witness had further stated that the accused-appellant told him about the payment of ransom---No doubt the allegation was that the ransom amount was paid on 23.05.2009 and the abductees were released on the same evening, but considering the same in the given circumstances a doubt was created in the prosecution case, the benefit of which could not be denied to the accused-appellant--- Circumstances established that prosecution had failed to prove its case against the accused 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.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Art. 22---Identification parade---Scope---In absence of disclosure of the features, physiques and complexions of any of the unknown accused persons in the statements of witnesses recorded by the Investigating Officer, the identification of the accused in the identification parade would lose its efficacy.

Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

----Ss. 365-A, 201, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-L---Criminal Procedure Code (V of 1898), S.161---Kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, rioting armed with deadly weapon, unlawful assembly, act of terrorism, absconsion---Appreciation of evidence---Delay in recording the statements of abductee/witnesses---Effect---Abductees of the case were released on 23.05.2009, however, their statements were recorded by the Investigating Officer on 30.05.2009---No explanation on their part was available as to why their statements were recorded with such a delay---Said delay in recording the statements under S. 161, Cr.P.C., revealed the fact that said witnesses were not truthful witnesses.

Abdul Khaliq v. The State 1996 SCMR 1553; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

(d) Criminal trial---

----Abscondence---Evidentiary value---Abscondence could never be considered in isolation and was only a corroborative piece of evidence.

Rohtas Khan v. The State 2010 SCMR 566 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance had created reasonable doubt in the mind of a prudent person, its benefit was 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.

Syed Zeeshan Haider and Muhammad Imtiaz Balouch for Appellant.

Syed Asif Hussain Bukhari for the Complainant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 232 #

2020 Y L R 232

[Lahore]

Before Atir Mahmood, J

MUHAMMAD MUNIR AHMED---Petitioner

Versus

ANWAAR UL HAQ---Respondent

Civil Revision No. 231030 of 2018, heard on 17th October, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. XXI, Rr. 32, 23 & S.11---Suit for specific performance of agreement to sell---Consent decree, objection to---Scope---Plaintiff had claimed that he had deposited part payment of sale consideration and the remaining amount was agreed to be paid on execution of sale-deed---Parties entered into compromise during pendency of suit---Plaintiff thereafter deposited the balance sale consideration with the Trial Court---Trial Court decreed the suit by holding that defendant was entitled to receive the balance sale consideration deposited by the plaintiff---Plaintiff challenged the said decree upto to the Supreme Court on the ground that since the defendant had not fulfilled his commitment therefore, he was not entitled to receive the balance sale consideration and the Trial Court should have passed the decree in his favour in lieu of part payment---Plaintiff filed application under O. XXI, R. 32, C.P.C. before the executing court on the said ground which was dismissed---Plaintiff assailed the said order in appeal which was allowed by the Appellate Court--- Validity--- Consent decree was passed by the Trial Court whereby the plaintiff's suit for specific performance of agreement to sell was decreed whereby the defendant was held entitled to receive the balance sale consideration deposited by plaintiff---Plaintiff, in compliance of the decree, had got executed the sale deed in his favour and had also taken possession of the suit property---Order XXI, R. 32, C.P.C. did not apply or attracted in the case in any manner and principle of res judicata was applicable---Plaintiff had taken benefit of the consent decree therefore he had no ethical or lawful justification to create hurdles in the way of the defendant to get benefit of the said decree---Plaintiff was approbating and reprobating at the same time---Plaintiff, on failure up to the Supreme Court in the first round of litigation, had no lawful reason or justification to agitate the matter again and again on one and the same plea of non-fulfilment of the commitment by the defendant---Order passed by Appellate Court was set aside and that of Trial Court/executing court was restored---Civil revision was allowed.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 rel.

Rana Rashid Akram Khan for Petitioner.

Syed Mumtaz Hussain Bokhari for Respondent.

YLR 2020 LAHORE HIGH COURT LAHORE 253 #

2020 Y L R 253

[Lahore]

Before Jawad Hassan, J

FAISAL MALIK and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 48125 of 2019, decided on 27th August, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Pre-mature---Scope---Prohibition on use of plastic bags---Petitioners, being members of Technical Working Group, filed constitutional petition and contended that the objections raised by them were not considered by the Working Groups, constituted for proper deliberation on the issue of regularization of the use of plastic bags---Validity---Constitutional petition was pre-mature because no adverse action was taken by the authorities and the objections raised by the petitioners were not decided---High Court, converted the writ petition into a representation of petitioners to the Committee, which was, inter alia, directed to consider all the points raised in the representation---High Court directed the Secretary of the department to hold consultative workshop on the draft Act by notifying all the members of the Committee, Working Groups, the stakeholders and all the associations related to the plastic bags to receive their input---Constitutional petition was dis-posed of, accordingly.

PMDC v. Fahad Malik 2018 SCMR 1956; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Muhammad Zia-ur-Rehman and others v. University of Engineering and Technology and others 2013 CLC 512; Engineer Iqbal Zafar Jhagra and others v. Federation of Pakistan and others PLD 2013 SC 224; Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Syed Riaz Ali Zaidi v. Government of the Punjab through Chief Secretary, Lahore and 3 others PLD 2015 Lah. 463 and Subay Khan v. Secretary, Labour, Government of the Punjab PLD 2019 Lah. 253 ref.

Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118 rel.

Barrister Momin Malik for Petitioners.

Umair Khan Niazi, Additional Advocate General and Ms. Sadia Malik, Assistant Attorney General for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 271 #

2020 Y L R 271

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

ANAM SHAHZAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 413 of 2017, heard on 11th February, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Accused was charged that she along with co-accused committed murder of son of the complainant---Complainant's stance was that his son was done to death on 20.08.2016 at about 2:30 a.m. (mid-night)---Post-mortem examination report of dead body of the deceased held on 20.08.2016 at 8:30 a.m., declared the time between death and post-mortem examination as 12 to 24 hours---Time of death, described by the complainant, in fard biyan, private complaint as well as during statement before the Trial Court did not correspond with the findings and observations, made by the Medical Officer---Post-mortem report showed the dead body was received in the mortuary on 20.08.2016 at about 6:00 a.m., whereas the police had provided the complete documents to the Medical Officer at 8.30 a.m.---Said delay regarding non-provision of necessary documents by the police to the Medical Officer was a clear indication that time was consumed in introducing unjustified evidence and documents---During evidence before the court, the complainant had contended that as motorcycle of the deceased was found parked in front of house of co-accused, since acquitted, they went inside the house---Version of a witness was that at about 1:40 a.m., a shopkeeper had pointed to them about the house of the co-accused---Complainant had not disclosed about any information, made to them by any shopkeeper, whereas witness never stated about parking of motorcycle of the deceased at any place---Fact that at 1:40 a.m., any shop was functional and its shopkeeper had met the complainant's party and informed it about any house was not appealable to a prudent mind---Complainant as well as witness were not residents of the vicinity, where house of co-accused was situated, hence, their alleged availability at the house during odd hours of the night had made them as chance witnesses---House in question belonged to co-accused, who along with other co-accused persons had been acquitted of the charge, as the prosecution witnesses had been disbelieved to their extent---For believing witnesses qua the accused/appellant, strong independent corroboration was required, which was missing---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Akram v. The State 2012 SCMR 440 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt would entitle accused, due benefit of acquittal, not as a matter of grace or concession, but as of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Barrister Osama Amin Qazi for Appellant.

Umer Hayat Gondal, Additional Prosecutor General with Sadaqat, A.S.I. for the State.

Syed Tanvir Subail Shah for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 276 #

2020 Y L R 276

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

MUHAMMAD YOUNUS---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 25 of 2012, heard on 25 March, 2019.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 342---Dishonestly issuing a cheque---Appreciation of evidence---Non-performance of corresponding obligation by the complainant---Effect---Non-examination of accused regarding material evidence---Maxim: Audi alteram partem---Scope---Accused was convicted for dishonestly and fraudulently issuing cheque---Cheque pertained to the obligation which arose vide decision of panchayat---Accused was burdened with the liability with respect to the cheque and its encashment whereas the complainant was required to hand over the transfer letter of motorbike---Such scenario reflected that there were two obligations; one was upon the accused while the other was upon the complainant---Said obligations were not independent of each other and when complainant had not himself fulfilled his obligation then non-fulfilment of financial obligation did not impose any criminal liability upon the accused---Neither cheque nor memo of refusal slip was got exhibited before the court in original, so much so, their copies were not got compared---Said documents were not even put to accused in his statement recorded under S. 342, Cr.P.C., therefore the same could not be used against him---Prosecution had failed to prove its case against the accused, in circumstances---Criminal revision was accepted and accused was acquitted of the charge, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

Muhammad Saddique v. The State 2018 SCMR 71; Nadeem alias Kala v. The State and others 2018 SCMR 153 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 ref.

Shafi Muhammad Tariq, for Petitioner along with petitioner in person (on bail).

Malik Mudassir Ali, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 282 #

2020 Y L R 282

[Lahore]

Before Shujaat Ali Khan, J

AZRA BIBI---Petitioner

Versus

LATEEF and others---Respondents

Writ Petition No. 8882 of 2016, decided on 25th September, 2019.

Family Courts Act (XXXV of 1964)---

----Ss. 5 & 7---Recovery of dowry---Value, determination of---Financial status of parents of bride---Determining factor---Scope---Petitioner filed suit for recovery of her dowry articles against her ex-husband and in alternate claimed price of dowry articles---Family Court partially decreed the suit in favour of petitioner which judgment and decree was maintained by Lower Appellate Court---Validity---Financial status of parents of bride was determining factor to adjudge quantum of dowry articles---Parents of petitioner at the time of her marriage were dependent on their agricultural income which was received by them from 2/3 acres of land---Parents of petitioner did not have extraordinary source of income to give dowry articles as claimed by her---High Court declined to interfere in concurrent findings by two Courts below as they were not proved to be perverse or result of arbitrariness---Constitutional petition was dismissed, in circumstances.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393 and Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

Riaz Hussain Haleem for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 292 #

2020 Y L R 292

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

FAROOQ KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 47860-B of 2019, decided on 3rd October, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149, 337-D, 337-F(ii) & 337-F(iii)---Attempt to commit qatl-i-amd, rioting, armed with deadly weapon, jaifah, badi'ah, mutalahimah---Bail, grant of---Completion of investigation---Scope---Allegation against accused persons was that they along with others while armed with their respective weapons launched attack upon the complainant party---First accused, as per crime report, had inflicted knife blow on the left side of abdomen of the injured whereas the second accused had inflicted knife blow on the left side of the back of complainant---Accused persons had not repeated the blows---Injuries attributed to the accused persons were declared by the doctor as offences falling under S. 337-F(iii), P.P.C. for which maximum punishment was three years and consequently did not attract the prohibition contained in S. 497(1), Cr.P.C.---Investigation against the accused persons was complete and their corpus was no more required by the police---Petition for grant of bail was accepted, in circumstances.

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

----S. 497---Bail---Basic principle is bail and not jail.

Malik Matee Ullah for Petitioners.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General and Maqbool Khan ASI with record for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 321 #

2020 Y L R 321

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

PUNJAB PROVINCIAL COOPERATIVE BANK LIMITED through Zonal Chief---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeals Nos. 169, 186 and 187 of 2009, heard on 18th December, 2018.

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

----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act, (II of 1947), S. 5(2)---Co-operative Societies Act (VII of 1925), S. 65-B---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security to make or transfer any valuable security or to receive any money, forgery for purpose of cheating, using as genuine a forged document, public servant committed or attempt to commit criminal misconduct---Public servant---Jurisdiction of special court---Accused were alleged for misappropriating public money to the tune of Rs. 48,72,685/- from 74 accounts and shortage of Rs. 16,37,544/- in the cash-in-hand---Accused-respondents raised objections about the jurisdiction of the special court---Scope---Every officer of a society, including a co-operative bank, would be deemed to be a public servant within the meaning of S. 21, P.P.C.---Present matter was exclusively triable by the Special Court, Anti-Corruption---Objections raised by the accused regarding jurisdiction of the court were repelled.

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

----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Law Amendment Act, (XL of 1958), S.6(3)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, to make or transfer any valuable security or to receive any money, forgery for purpose of cheating, using as genuine a forged document, public servant committed or attempt to commit criminal misconduct---Applicability of S. 249-A, Cr.P.C.---Scope---Section 6(3) of the Criminal Law Amendment Act, 1958, stipulated that the provisions of Chapter XX, Cr.P.C., 1898, would apply to trial of cases by the special courts constituted thereunder unless they were inconsistent with it.

----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 249-A---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, to make or transfer any valuable security or to receive any money, forgery for purpose of cheating, using as genuine a forged document, public servant committed or attempt to commit criminal misconduct---Accused were alleged for misappropriating public money to the tune of Rs. 48,72,685/- from 74 accounts and shortage of Rs. 16,37,544/- in the cash-in-hand, hence the FIR---Record showed that the Trial Court invoked S. 249-A, Cr.P.C. suo motu to acquit the accused, whereas they did not make any application for that purpose---Admittedly, the impugned orders were passed without issuing notice to the prosecutor and affording him an opportunity of hearing which was mandatory---Court might have exercised the power conferred on it under S.249-A, Cr.P.C. at the very initial stage, after taking cognizance or in the middle of the trial after recording some evidence or later before the judgment was handed down---However, the said power must be used sparingly and every possible opportunity should be afforded to the prosecution to prove its case and establish guilt of the accused---Record revealed that the prosecution had cited 94 witnesses in the calendar of witnesses---At the time of passing impugned orders, prosecution had examined 31 which included six from the Bank---Depositions of said witnesses revealed that sufficient incriminating material against the accused-respondents was available---Remaining 63 witnesses were yet to be recorded---In such circumstances, it could not be said that the charge against accused was groundless and there was no probability of their being convicted, the only basis on which S. 249-A, Cr.P.C. could be invoked---Trial Court had not addressed that legal issue in any of the impugned orders, which appeared that Trial Court was swayed by the fact that the accused-respondents had returned the money they were alleged to have misappropriated---In law that might be a ground for lesser punishment but not acquittal---Record transpired that Trial Court had acquitted two accused on the ground that there was some dispute between them and Bank regarding calculation of amounts---Similarly, Trial Court had recorded findings that the prosecution had not been able to prove even the charge of temporary embezzlement against co-accused---Said findings were arbitrary and were not based on any evidence---After getting the FIR registered, Bank held departmental inquiry against the accused-respondents in which some of them were exonerated and reinstated in service---Said fact had no bearing on the present case, which had to be decided on its own merits---Circumstances established that impugned order were patently illegal, perverse and thus, not sustainable---Appeal was accepted by setting aside the impugned orders of acquittal of the accused-respondents---Case was remanded to the Trial Court which would proceed with the trial from the stage when the impugned orders were passed.

M. Saleem Anjum v. Majid Nizami and 4 others 1990 MLD 206; The State v. Muhammad Afzal and another 2000 MLD 220; The State v. Sarwar Khan and others PLD 1984 SC 428; Mst. Naseem Akhtar v. Murad Ali and others 1986 PCr.LJ 1824; Muhammad Saleem v. Muhammad Ismail and another 1987 PCr.LJ 1633; The State through A.G., N.W.F.P. v. Abdul Latif and another 1990 PCr.LJ 113; State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544; Nadir Shah v. The State 1980 SCMR 402 and State through Prosecutor-General, Punjab v. Jahangir Akhtar and others 2018 SCMR 733 rel.

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

----S. 417---Appeal against acquittal---Scope---Principles for appeal against acquittal were different from an appeal filed against conviction---Interference in an order for acquittal could only be made where the Trial Court had committed grave irregularity, caused miscarriage of justice.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

Ch. Khalid Mehmood Arain for Appellant.

Muhammad Ahsan-ul-Haq, Deputy District Public Prosecutor for the State.

Muhammad Suleman Bhatti for Respondent No.2 (in Criminal Appeal No.169 of 2009).

Nishat Ahmad Siddiqui for Respondent No.3 (in Criminal Appeal No.169 of 2009).

Muhammad Anwar Awan for Respondents Nos.2 and 3 (in Criminal Appeal No.186 of 2009).

Mehr Ashfaq Ahmad Utra for Respondent No.2 (in Criminal Appeal No. 187 of 2009).

YLR 2020 LAHORE HIGH COURT LAHORE 345 #

2020 Y L R 345

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

NAZIR AHMED alias JEERA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 95-J of 2014 and Murder Reference No. 92 of 2013, heard on 20th November, 2018.

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

----S. 302(b) & 394---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd and robbery---Appreciation of evidence---Identification parade--- Procedural defects---Effect---Credibility of witnesses--Benefit of doubt---Accused was convicted of committing Qatl-i-amd and was sentenced to death by Trial Court---Occurrence was of a short span and only three fires were made and it was not explained as to how the prosecution witness reached the crime scene from his house within such a short span of time especially when he had no cause to leave his house at such late hours of the night---Prosecution witness who had not witnessed the occurrence was called for participating in the test identification parade---Said prosecution witness not only took part in identification parade, held to establish identity of assailants, but also deposed regarding the same before Trial Court---While holding test identification parade, Magistrate had failed to observe description of age, height, colour of skin and weight of dummies being used during test identification parade which was necessary to rule out any possibility of misidentification--- High Court declared such prosecution witness as "dishonest witness" who attempted to deceive court of law by claiming to be eye-witness of the occurrence---Conviction and sentence awarded by Trial Court was set aside and appellant was acquitted of the charge---Appeal was allowed accordingly.

Hakeem and others v. The State 2017 SCMR 1546; Kamal Din alias Kamala v. The State 2018 SCMR 577; Barkat Ali v. Muhamad Asif and others 2007 SCMR 1812 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

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

----S. 103---Recovery---Non-association of private witnesses---Effect---When police does not associate any resident of the locality in investigation for purpose of recovery, such recovery proceedings conducted in violation of S.103, Cr.P.C., were hit by exclusionary rule of evidence and could not be considered.

Javed Iqbal Bhatti and Qari Abdul Karim Shahab for Appellant.

Malik Riaz Ahmad, Deputy Prosecutor General for the State.

Saeed Ahmad Farrukh for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 359 #

2020 Y L R 359

[Lahore (Multan Bench)]

Before Ali Baqar Najafi, J

SAJAWAL---Petitioner

Versus

JUDGE FAMILY COURT, DISTRICT MULTAN and another---Respondents

Writ Petition No.3801 of 2019, decided on 8th March, 2019.

Family Courts Act (XXXV of 1964)---

----S. 9---Constitution of Pakistan, Art. 10-A---Right to fair trial---Written statement---Extension in time for filing written statement---Scope---Petitioner challenged order of Family Court whereby his right to submit written statement was struck off---Validity---Petitioner was given opportunities to submit written statement but he could not submit the same---Section 9(1) read with 9(5A) of Family Courts Act, 1964 provided a period of 15 days for filing written statement---Time could be extended where the defendant established sufficient reasons which prevented him from filing the same---High Court, keeping in view the valuable rights of petitioner to defend himself before the Family Court and in view of Art. 10-A of the Constitution permitted the petitioner to submit written statement subject to payment of cost.

Malik Tariq Javed Arain for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 372 #

2020 Y L R 372

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

IRFAN alias SHANI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 522, 535, 550 of 2014 and Murder Reference No.94 of 2018, heard on 18th June, 2019.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Chance witnesses--- Non-availability of justification for presence of witnesses at the place of occurrence---Effect---Prosecution case was that during the night of occurrence, the complainant along with his brother, nephew and a witness after taking dinner purchasing a book of Islamiat were returning to hostel when about 10.40 p.m they reached the main road when on one motorcycle of red colour two unknown accused of wheatish colour of average height and young age suddenly came there, who were identified in the light and one of the unknown accused raised a lalkara to hand over all the belongings to them whereupon complainant handed over to him Rs. 1500/----Witness and nephew of complainant offered resistance whereupon one of the accused persons made a straight fire hitting the face of his nephew which existed from the back of his head---Victim died at the spot---Record showed that the whole prosecution case revolved around the statements of complainant, his brother and a witness, who were related to each other---Admittedly, none of the prosecution witnesses had their residences or their houses at the place of occurrence, as such, they all were chance witnesses; however, it was very much clear that not a single person had supported the prosecution case being resident of the area---No statements of the persons from whose shop the witnesses had taken dinner or purchased the book was recorded which would have substantiated the case of the prosecution--In the absence of physical proof of the presence of the witnesses at the crime scene, their evidence could not be relied upon---Deceased had lost his life in the incident, but the fact remained that the names of the assailants were not mentioned in the oral statement of complainant---Complainant had stated that on 26.03.2009, he named out the accused persons---If every detail regarding the assailants was disclosed by complainant through his statement then holding of test identification parade was an exercise in futility---No source of light was mentioned in the oral statement of complainant or the other witnesses despite the fact that as per prosecution's own claim the occurrence had taken place during the night---Circumstances established that there were serious doubt regarding the involvement of accused persons in the present case---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Rafiq v. State 2014 SCMR 1698; Nasrullah alias Nasro v. The State 2017 SCMR 724 and Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302(b), 392 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, dishonestly receiving stolen property--- Appreciation of evidence--- Benefit of doubt---Identification parade---Joint identification parade---Effect---Accused were charged for committing murder of the deceased during robbery---Perusal of the proceedings of the test identification parade revealed that the said identification parade of three accused was conducted jointly---Proceedings of the test identification parade showed that all the three accused were made to sit in front of each other along with dummies at different serial numbers---Proceedings of Identification Parade revealed that there was no mention of either colour of their skins or the heights of other prisoners used as dummies---Only description was given in the oral statement, with regard to the ages, complexions and heights of the assailants---While holding the test identification parade, Judicial Magistrate had failed to observe the description of heights, complexions of their skin and weight of the dummies being used during the test identification parade which was necessary to rule out any possibility of misidentification---Such identification proceedings was of no evidentiary value---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Hakeem and others v. The State 2017 SCMR 1546; Kamal Din alias Kamala v. The State 2018 SCMR 577 and PLD 2019 SC 488 rel.

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---"Medical" and "ocular" evidence---Contradiction---Effect---Accused were charged for committing murder during robbery---Medical Officer reported that, the death of deceased was instantaneous and the post mortem was delayed by at least 12 hours, which reflected that the eye-witnesses were not present and were rather summoned subsequently---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and cash---Delay in dispatch of crime empties---Effect---Accused were charged for committing murder of the deceased during robbery---Report of Forensic Science Laboratory revealed that the empties were received in the Forensic Science Agency on the date of arrest of the accused---Chances of fabrication of empties could not be ruled out, therefore, it was not safe to rely upon the alleged recovery of weapon from the possession of accused/appellant and positive report of Forensic Science Laboratory---Record transpired that Rs.1500/- was recovered from co-accused/appellant but no memo of identification of the recovered currency was prepared by the Investigating Officer for them to be considered as relevant and incriminating piece of evidence as against the co-accused/appellant---Police did not associate any residents of the locality in the investigation for the purpose of recoveries---Said recovery proceedings were conducted in violation of S. 103 of Cr.P.C. and thus, were hit by the exclusionary rule of evidence and could not be considered---As the ocular account had been disbelieved, hence, the evidence of recovery would have no consequence.

(e) Criminal trial---

----Recovery of weapon of offence---Effect---Recovery was only a corroborative piece of evidence and if the ocular account was found to be unreliable then the recovery had no evidentiary value.

(f) Criminal trial---

----Medical evidence---Scope---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 evident alone.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

James Joseph and Ch. Umar Hayat for Appellants.

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

Ch. Tahir Mehmood for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 401 #

2020 Y L R 401

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

Mst. AYESHA ABDUL MALEEK---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 2 others---Respondents

Writ Petition No. 8873 of 2017, heard on 1st April, 2019.

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

----Ss. 25 & 17---Custody of minor---Welfare of minor---"Intelligence preference" of minor---Scope---Petitioner/mother filed petition for custody of minor daughter whereas father moved application for appointment as guardian---Petition for custody of minor daughter filed by the mother was dismissed whereas father's application for appointment of guardian was allowed--- Validity--- Paramount consideration while deciding application for custody of minor was welfare of minor and nothing else---Character and capacity of proposed guardian as well as age and sex were important factors to be considered while determining the welfare of minor---Courts below summoned the minor for the purpose of "intelligence preference" and she denied to have company with the petitioner mother and showed her willingness to reside with her father---Courts below had rightly concluded that petitioner mother was not entitled to the custody of minor daughter and respondent father was entitled to retain her custody as he had sound financial status---Respondent father was looking after the minor properly---Petitioner mother of minor daughter was entitled for visitation rights---No illegality or jurisdictional error had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 rel.

Muhammad Ashraf Qureshi for Petitioner.

Abdul Rehman Khan Laskani, Saghir Ahmad Bhatti and Kabir Ahmad Gill for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 461 #

2020 Y L R 461

[Lahore]

Before Shahid Bilal Hassan, J

PERVAIZ AHMED and others---Petitioners

Versus

SULTAN TIPU SARWAR and others---Respondents

Civil Revision No. 204044 of 2018, decided on 14th October, 2019.

Transfer of Property Act (IV of 1882)---

----S. 52---Civil Procedure Code (V of 1908), O. I, R. 10---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Appeal---Subsequent sale of suit land---Impleadment of a party---Lis pendens, principle of---Applicability---Suit was dismissed against which an appeal was filed wherein an application was moved for impleadment as a party on the ground that petitioner had purchased the suit property---Appellate Court accepted the said application and case was remanded for de novo trial---Validity---Rule of lis pendens was based upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienation pendente lite was permitted to prevail and subsequent transferee was allowed to set out his own independent case even of being the bona fide transferee against the succeeding party of the matter and asked for the commencement of de novo proceedings so as to defeat the claim which had been settled by a final judicial verdict---Petitioner was not necessary party to the appeal or suit and appeal could have been decided without impleading him---Impugned judgment was set aside and application for impleadment as a party was dismissed---Matter was remanded to the Appellate Court for decision of appeal afresh in accordance with law---Revision was allowed, in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Mehmood Anwer and another v. Additional District Judge and 14 others 2017 YLR Note 51 rel.

Malik Nazim Ali Awan for Petitioners.

YLR 2020 LAHORE HIGH COURT LAHORE 470 #

2020 Y L R 470

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

DUR MUHAMMAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 248 of 2014, heard on 17th December, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of son of complainant---Motive behind the occurrence was stated to be an exchange of hot words, over a dispute of passage, which took place few days earlier, between the deceased and the accused---Ocular account in the present case had been furnished by complainant and a eye-witness---Record showed that neither the complainant nor any other witness named in the FIR, who were greater in number than the accused persons, armed with only sotas and not any firearm weapon, had made any effort to interfere, in order to save the deceased---Conduct of the nearer and dearer of the deceased was not natural in circumstances---Said witnesses, during cross-examination had stated that the accused persons dragged deceased for about 2/3 minutes and continued to give him beating for a period of 10/15 minutes, but they remained standing at a distance of 22 feet towards east to the place of occurrence---Circumstances suggested that the presence of both the claimed eye-witnesses at the place of occurrence at the relevant time was not free from doubt---Motive had not been proved due to non-availability of evidence on record, which was set out in the FIR and had been dubbed to bald assertion made by the complainant's side, particularly in absence of any detail regarding date, time and place of the occurrence, especially when there was also no pending litigation between the parties regarding the dispute of any passage---Investigating Officer had deposed that first version of accused persons was that daughters of accused were young enough and the deceased had evil intentions against them and he forbade him from visiting his house but he continued to stand in front of his house in routine---One evening at about 8.00/9.00 p.m. the deceased entered into their home by leaping over the wall and went inside the room where daughter of accused was sleeping---Accused tried to apprehend him and during the resistance by him, he got injured---Investigating Officer had stated that said first version of the accused was found correct during investigation---Version adopted by the accused in the facts of the case, seemed to be more plausible and probable as compared to the case of the prosecution---Circumstances established that the prosecution had failed in establishing its case beyond reasonable shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Liaqat Ali v. The State 2008 SCMR 95 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Consultation and deliberation in lodging the FIR---Effect---Record showed that FIR had been lodged by the complainant on the basis of legal advice rendered by a legal expert---Such FIR, which had been lodged after consultation and deliberation was suspicious and its veracity was deemed to be at stake being result of consultation and deliberation---Such version in the FIR might be called an adulterated first version of the complainant about the occurrence, hence could not be relied upon for the safe administration of justice.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Record showed that sotas, allegedly effected on pointing out of the accused persons, could easily be planted upon the accused---Recovery memos had been shown to be attested by the same witnesses, who were named in the FIR as eye-witnesses and whose presence at the spot had been disbelieved by the court, therefore, the recovery had also rendered no corroboration to the prosecution case.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence did not support the ocular account---Scope---Post-mortem report showed that deceased was a young man aged about 30-years---Medical Officer, who conducted post-mortem of the deceased, had opined that the cause of death was vaso vagal inhibition and crush syndrome resulted by all the injuries collectively inflicted by some blunt weapon and all the injuries were ante-mortem and were sufficient to cause the death in ordinary course of nature---Medical Officer had deposed in cross-examination that as per post mortem examination, there was no fracture of any bone of deceased nor there was apparently any serious injury---Nature of injuries had fallen under S. 337-A(i), P.P.C. or 337-F(i), P.P.C. or 337-L(2), P.P.C. and from the apparent nature of injuries, such like injuries did not cause the death in ordinary course of life---Circumstances established that medical evidence did not support the ocular account of the case.

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

----S. 342---Plea taken by the accused during his statement recorded under S. 342, Cr.P.C.---Effect---If the prosecution failed in establishing its case beyond reasonable shadow of doubt, the accused could be acquitted, even if he had taken a plea and thereby admitted the killing of the deceased.

Azhar Iqbal v. The State 2013 SCMR 383; Javaid v. The State PLD 1994 SC 679 and Nadeem-ul-Haq Khan and others v. The State 1985 SCMR 510 rel.

Malik Ghulam Abbas Ponta for Appellants.

Ch. Salamat Ali for the Complainant.

Syed Nadeem Ahmad Rizvi, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 488 #

2020 Y L R 488

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz and Farooq Haider, JJ

NASEER AHMAD---Appellant

Versus

The STATE and others---Respondent

Criminal Appeal No. 49 of 2017 and Murder Reference No. 4 of 2017, decided on 26th September, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about one hour in lodging the FIR---Effect---Accused was charged for committing murder of brother of the complainant by giving a blow of knife, who was shifted to hospital but he succumbed to the injuries---Occurrence took place at 11:30 a.m., case was got registered at 12:30 p.m. on the same day---Post-mortem examination over dead body of the deceased was also conducted at 04:45 p.m. on the same day---Close scrutiny of the record revealed that complainant himself categorically stated in the court while appearing as witness that occurrence took place at 09:30 a.m.---Record showed that dead body was received in the hospital at 04:00 p.m., police papers were received half hour after receipt of dead body and thereafter autopsy was conducted at 04:45 p.m.---Neither the case could be treated as promptly registered nor post-mortem examination could be termed as promptly conducted, in circumstances which suggested that neither complainant nor the cited eye-witnesses were present at the relevant time at the place of occurrence and the time had been consumed by the prosecution in cooking up a story for registration of case and in procuring and planting eye-witnesses---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Haroon Shafique v. The State and others 2018 SCMR 2118; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of justification for presence of witnesses at the place of occurrence---Un-natural conduct of eye-witnesses---Scope---Accused was charged for committing murder of brother of the complainant by giving churri blow---Complainant in application for registration of case mentioned that deceased in injured condition was being carried to hospital on a van but he succumbed to the injuries on the way---While appearing as witness in the court, complainant had stated that deceased died at the spot, hence, prosecution while making inconsistent statements in that regard also not only made it doubtful rather could not establish exact place of death of the deceased---Perusal of FIR and particularly its portion containing proceedings of police clearly revealed that complainant produced application for registration of case at the police station, officer who recorded FIR on the basis of said application handed over copy of FIR to the complainant---Complainant made absolutely inconsistent/contrary statement in the court and clearly stated that police came at the spot and recorded his statement there---Prosecution, therefore, could not establish the exact place, mode of receiving information regarding the occurrence--- Complainant, in circumstances, had himself made the registration of case as dubious---Ocular account comprised three witnesses including complainant---Said witnesses were neither residents of place of occurrence nor having any shop or business there rather complainant was resident of a Chak, which was at a distance of 3/4 kilometers from the village of occurrence---Site plan revealed that houses of the cited eye-witnesses and deceased were not situated near the place of occurrence, hence, they were chance witnesses---Claim of the complainant that he along with cited eye-witnesses came at the place of occurrence after hearing hue and cry was neither plausible nor probable---Complainant and cited eye-witness, even otherwise, could not establish any valid reason regarding their presence at the relevant time, at the place of occurrence---Testimony of said witnesses could not be accepted without strong corroboration which was absolutely missing/lacking in the present case---Record transpired that complainant was real brother of deceased, whereas other witness was brother-in-law of the deceased and one witness was given-up---Eye-witnesses were three in number whereas accused was alone and allegedly though equipped with churri and not any sophisticated firearm weapon but complainant and eye-witnesses did not intervene for rescue of the deceased and apprehended the assailant but remained at the place of occurrence as silent spectator---Eye-witnesses stated that deceased died at the place of occurrence and they had not deposed that they tried to shift him for providing any medical aid---Medical Officer stated that deceased died within half an hour after sustaining injury due to haemorrhage and shock---Conduct of complainant and witness reflected that they were not present at the time of occurrence at the spot---Prosecution had been failed to prove its case against the accused, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Nazir Ahmad v. The State 2018 SCMR 787; Rehmat Ullah v. Muhammad Iqbal and others 2006 SCMR 1517; Allah Bachaya and another v. The State PLD 2008 SC 349 and Zafar v. The State and others 2018 SCMR 326 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Improvement made by witnesses---Scope---Accused was charged for committing murder of brother of the deceased by giving a churri blow---Complainant had made dishonest improvements at belated stage, after submission of the challan, through private complaint, particularly qua number of injuries on the body of the deceased for bringing ocular account in line with medical evidence, place of death of the deceased and mode/place of providing first information to police about the occurrence and had also introduced some dishonest improvements while appearing as witness before the court during trial of the case---Eye-witness had also introduced same dishonest improvements--- Said improve-ments were fatal to the prosecution case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(d) Criminal trial---

----Eye-witness---Inconsistent testimony---Value---Witness who made inconsistent statements could not be considered as truthful witness.

Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular evidence---Contradiction---Effect---Accused was charged for committing murder of brother of the complainant by giving blow of churri---Only one injury on the chest of deceased was mentioned in the application and FIR but during autopsy two injuries were found, therefore, ocular account was contradicted qua number of injuries by medical evidence---Circumstances established that ocular account was neither trustworthy nor confidence inspiring, hence, same was not reliable---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence was mere supportive/ confirmatory type of evidence---Medical evidence could tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it could not tell about identity of the assailant who caused the injury---Medical evidence was of no help to the prosecution, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Occurrence took place on 06.09.2013 and churri (weapon of offence) was dispatched to Forensic Science Agency on 11.10.2013---Recovery of churri and report of Forensic Science Agency was inconsequential---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Faisal Mehmood v. The State 2016 SCMR 2138 rel.

Malik Saeed Ejaz and Muhammad Shamoon Bhatti for Appellant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

Syed Ghulam Shabbir Shah for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 509 #

2020 Y L R 509

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

ALI KAMRAN and 5 others---Petitioners

Versus

MUHAMMAD ASLAM and 5 others---Respondents

Civil Revision No. 836 of 2013, heard on 20th June, 2019.

Partition Act (IV of 1893)---

----S. 4---Suit for possession through partition--- Execution petition---Objection---Undivided dwelling house---Local Commission submitted report that suit property was divisible---Applicants moved application that suit property was undivided dwelling house and they were ready to purchase the same which was dismissed concurrently---Waiver, principle of---Applicability--- Validity--- Petitioners or their predecessor never pressed into service the alleged claim that suit property was an undivided dwelling house belonging to undivided family which could not be partitioned or they were willing to purchase the same---Petitioners had filed present petition after a period of twenty three years from the date of decree passed in partition suit---Petitioners could not raise the plea under S. 4 of Partition Act, 1893 and principle of waiver was applicable, in circumstances---Suit property was not an undivided dwelling house---Revision was dismissed, accordingly.

Mst. Arjumand Bano v. Ch. Ali Muhammad 1991 MLD 250 and Muhammad Abdullah v. Yatim Khana Khalqia, Sargodha through its Manager and others 2004 SCMR 471 rel.

Tahir Iqbal Chaudhary for Petitioner.

Yaqoob Ali Chaudhary for Respondent.

YLR 2020 LAHORE HIGH COURT LAHORE 546 #

2020 Y L R 546

[Lahore (Rawalpindi Bench)]

Before Malik Shahzad Ahmad Khan and Ch. Abdul Aziz, JJ

QURBAN HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 280, 458 and Murder Reference No. 34 of 2014, heard on 24th May, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about two hours in lodging the FIR---Charge against accused was that he along with acquitted accused committed murder of the brother of complainant---Occurrence in the case took place at 11:30 a.m.---Matter was reported to the police by complainant on the same day at 01:15 p.m., whereas, the formal FIR was also lodged on the same day i.e. on 02.08.2011 at 01:35 p.m.---Distance between the place of occurrence and police station was 05 kilometres---Circumstances established that the FIR was promptly lodged and there was no deliberation or conscious delay in reporting the matter to the police.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Appeal against acquittal--- Broad day-light occurrence---Ocular account supported by medical evidence---Scope---Accused was charged of offence that he along with acquitted accused committed murder of brother of the complainant---Motive behind the occurrence was that accused and deceased had quarrelled with each other---Trial Court, however, vide the same judgement acquitted co-accused extending him the benefit of doubt---Ocular account of the incident had been furnished by two witnesses including complainant---Said witnesses being brother and maternal uncle of the deceased respectively had given plausible reason for their presence at the crime scene at the time of occurrence---Defence had brought the fact on record that the dead body of deceased was taken to the hospital by the staff of Emergency Service 1122, which showed that the dead body was not brought to the hospital by the eye-witnesses, and it was established that the said eye-witnesses were not present at the crime scene, at the time of occurrence---Record showed that complainant had himself stated during his cross-examination that an unknown person had called rescue team, after the occurrence---Even otherwise, said eye-witnesses were not expected to take themselves the dead body of deceased to the hospital and if the dead body of the deceased was brought to the hospital in the ambulance of the Emergency Service then the same did not negate the presence of the eye-witnesses at the spot at the time of occurrence---Occurrence in the case took place in the broad day-light at 11:30 a.m.---Appellant was earlier known to the eye-witnesses as there was previous enmity between the parties which had been proved on the record through earlier FIR and as such there was no chance of any miss-identification of the appellant---Eye-witnesses were cross-examined at length but their evidence could not be shaken and they corroborated each other on all material aspects of the case and their evidence was confidence inspiring and trustworthy---Medical Officer, who conducted post-mortem examination on the dead body of the deceased, had opined that the time that elapsed between the injury and death was immediate i.e., less than five minutes, whereas the time that elapsed between the death and the post-mortem examination was 6 to 12 hours---Medical Officer conducted post-mortem examination on the dead body of deceased on 02.08.2014 at 07.00 p.m.---As per prosecution evidence, the occurrence in this case took place on 02.08.2011 at 11:30 a.m. and as such the time that elapsed between the death and the post-mortem examination of the deceased as given by the Medical Officer coincided with the time of occurrence, mentioned by the eye-witnesses in the case---Medical evidence had substantially supported the ocular account furnished to the extent of role attributed to the appellant---Circumstances established that the prosecution had fully proved its case against appellant beyond the shadow of any doubt, in circumstances---In the present case, certain mitigating circumstances in favour of the appellant were noted; Firstly, the prosecution implicated co-accused in this case but he was acquitted by the Trial Court, appeal filed against the acquittal of the said co-accused had been dismissed as having been withdrawn; secondly, prosecution evidence had been disbelieved qua the recovery of .30 bore pistol and motorcycle from the possession of the appellant; thirdly, the appellant had been assigned the role of causing single firearm injury on the body of deceased and he did not cause any other injury on the body of the deceased---Said facts showed that it was not a case of capital punishment therefore, the death sentence awarded to appellant was quite harsh---Conviction of appellant under S. 302(b), P.P.C. awarded by the Trial Court was maintained by the High Court but his sentence was altered from death to imprisonment for life, in circumstances.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

----Witness---Improvements in the statements of the eye-witnesses---Scope---Improvements in the statements of the eye-witnesses regarding irrelevant facts were not sufficient to discard their evidence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, proof of---Motive for the occurrence was that there existed previous enmity between the accused party and the complainant party---Complainant had stated in his examination-in-chief that about 1½-2 months prior to the occurrence, there was a quarrel between deceased and appellant and other for which criminal case was registered---Complainant had produced in evidence the copy of FIR regarding the occurrence of motive part of the case---Evidence of complainant and witness regarding the motive part of the occurrence was also subjected to lengthy cross-examination but they remained consistent on that point---Although it had been alleged by the appellant that complainant who could have been the prime target of the appellant but he had not been caused any injury by the appellant which showed that in fact the said witness was not present at the spot at the time of occurrence---Contents of FIR about the earlier occurrence which was lodged by the mother of appellant showed that it was deceased who was assigned the role of inflicting hatchet blow on the thumb of real brother of appellant and no injury on the body of any member of the complainant party of the said FIR was assigned to complainant---Said circumstances showed that deceased was the prime target of the appellant---Motive, as alleged by the prosecution, had also been proved in the case through oral, as well as, documentary evidence i.e. FIR.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence, empties and motorcycle---Delay in dispatch of recovered weapon---Effect---Accused was charged that he along with acquitted accused committed murder of brother of the deceased---Record showed that 30-bore pistol was recovered from the possession of the appellant---Positive report of the Forensic Science Agency showed that the empties recovered from the sport were found to be fired from recovered pistol---However, it was noteworthy that 04 empties were recovered from the place of occurrence on 02.08.2011 and pistol was recovered from the possession of appellant on 17.10.2011 but as per report of Forensic Science Agency, the empties and pistol were deposited together in the office of Forensic Science Agency on 27.10.2011---Said facts showed that the empties and pistol were kept together at the police station therefore, possibility could not be ruled out that fake empties were prepared from pistol and then the same were sent to the office of Forensic Science Agency for their comparison with the said pistol---Prosecution evidence qua the recovery of pistol and positive report of Forensic Science Agency was not reliable, in circumstances---Although motorcycle had also been shown to be recovered from the possession of appellant which, according to the prosecution case, was used by the appellant for coming to the place of occurrence and for fleeing away from the spot after the occurrence---No registration number of the motorcycle which was used by the accused during the occurrence had been mentioned in the FIR or in the statements of the eye-witnesses recorded by the Trial Court, therefore, the alleged recovery of motorcycle from the possession of appellant was inconsequential.

Ch. Afrasiab Khan for Appellant.

Umar Hayat Gondal, Additional Prosecutor General with Abdul Rehman, Assistant Sub-Indspector for the State.

Barrister Usama Amin Qazi for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 566 #

2020 Y L R 566

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

MUBEEN AHMAD QURESHI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1157-B of 2018, decided on 9th April, 2018.

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

----S. 498---Penal Code (XLV of 1860), Ss. 109, 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Criminal misconduct---Abetment, criminal breach of trust by banker, cheating and dishonestly inducing delivery of property, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, grant of---Rule of consistency---Scope---Accused was alleged to have misappropriated huge amount of different Bank account holders---Accused placed reliance on an order granting pre-arrest bail to a co-accused, who had been given the identical role to that of the accused as he was not named in the crime report in any capacity, whatsoever and during investigation he was saddled with some responsibility of facilitating main accused to misappropriate the amount of different Bank account holders---Prosecution conceded that the role of accused was not distinguishable to that of co-accused---High Court, taking into account the principle of rule of consistency, allowed the petition for grant of pre-arrest bail.

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

----S. 497---Penal Code (XLV of 1860), Ss. 109, 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Criminal misconduct---Abetment, criminal breach of trust by banker, cheating and dishonestly inducing delivery of property, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document---Bail, refusal of---Positive report of Handwriting Expert---Effect---Prosecution case against main accused was that he had received the cheques of different account holders, filled them with an amount of his own handwriting, encashed them, received the amount of his own and then handed it over to the customers; that he had received cash from different account holders and without depositing the same into their account given them bogus receipts and that he had filled the cheques with higher amounts and in connivance with other officials of the Bank had encashed the cheques---Receipts and the cheques filled by accused, which had earlier been denied, were submitted to the Handwriting Expert and the report thereof had been received with positive result showing that all those receipts and cheques had similar credentials---Prima facie, sufficient material was available with the prosecution to connect the accused with the alleged crime---Receipts issued against the amount got deposited by the different account holders had been found containing original stamps of Bank but the said amount was not deposited in their respective accounts by the accused---Different account holders, in their statements recorded under S.161, Cr.P.C. had named the accused being the sole culprit, who had filled the cheques, deposited their amounts and had given forged receipts to them---Overwhelming evidence available with the prosecution showed that the accused was not entitled to the relief claimed for---Petition for grant of post-arrest bail was dismissed, in circumstances.

Tahir Mehmood for Petitioner along with Petitioner.

Ch. Shakir Ali for Petitioner (in Crl. Misc. No.1772-B-2018).

Sardar Riaz Karim for the Complainant/Bank.

YLR 2020 LAHORE HIGH COURT LAHORE 571 #

2020 Y L R 571

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

Mst. SHEHLA JABBAR and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No. 10463 of 2018, decided on 18th February, 2019.

Family Courts Act (XXXV of 1964)---

----S.5, Sched. & S.14---Suit for recovery of maintenance allowance---Appeal for enhancement of maintenance---Maintainability---Family Court fixed maintenance allowance at the rate of Rs. 2000/- per month from the date of institution of suit till change of custody of minor---Appellate Court dismissed appeal for enhancement of maintenance on the ground that no appeal had been provided against judgment and decree passed for maintenance less than Rs. 5000/- per month---Validity---Right of appeal of plaintiff for enhancement of maintenance had not been extinguished under S. 14 of Family Courts Act, 1964---Appeal of plaintiffs before Appellate Court was competent, in circumstances---Impugned order passed by the Appellate Court was without lawful authority and jurisdiction which was set aside---Appeal filed by the plaintiffs would be deemed to be pending before the Appellate Court which was to be decided afresh after affording opportunity of hearing to the parties---Constitutional petition was allowed accordingly.

Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Ghulam Rasool v. Senior Civil Judge with the powers of Judge Family Court, Faisalabad and 4 others 2008 CLC 775; Saeeda Ali v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 and Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 rel.

Chaudhary Muhammad Imran for Petitioners.

YLR 2020 LAHORE HIGH COURT LAHORE 576 #

2020 Y L R 576

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

TAHIR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1912/B of 2019, decided on 26th August, 2019.

Criminal Procedure Code (V of 1898)---

---S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Absence of ingredients of the offence---Mala fide of prosecution--- Completion of investigation---Damage to reputation of accused---Scope---Allegation against the accused persons was that they were handed over a certain amount of sum by the complainant which they had dishonestly misappropriated--- First Information Report was registered with a delay of two years and no reasonable explanation was offered for such a deferral in reporting the matter to the police---Delay was conspicuous by its length and casted doubt on the veracity and reliability of the prosecution evidence---First Information Report was registered under S.406, P.P.C. with the allegation that the petitioners had allegedly committed criminal breach of trust---Evidentiary material produced before the court revealed that no evidence was available to substantiate the allegation that the accused persons had committed an offence punishable under S.406, P.P.C.---Mere mentioning of word amanat in the FIR was not sufficient to constitute an offence under S. 406, P.P.C. when the narrative of the FIR suggested that the money was handed over to the accused persons allegedly for their own use as a loan and was not entrusted to them---Use of word amanat in the FIR had also laid bare the mala fide of the complainant and as well as the police---Investigation of the case was complete---Version of the complainant as well as the accused persons had already been verified by the Investigating Officer---No specific denomination, identification marks or number of the currency notes, which were handed over by the complainant to the accused persons, had been mentioned in the FIR, therefore, bail petition cannot be dismissed merely on the ground of possible recovery of the amount of the complainant from the accused persons---Sending the accused persons behind the bars would cause irreparable loss to their reputation---Bail petitions were accepted and ad-interim pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Miraj Khan v. Gull Ahmad and 3 others 2000 SCMR 122 and Shahid Imran v. The State and others 2011 SCMR 1614 ref.

Mumtaz Mustafa and Malik Saeed Ahmad Awan for Petitioners.

Imran Pasha for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 611 #

2020 Y L R 611

[Lahore]

Before Shahid Bilal Hassan, J

Malik MUHAMMAD NADEEM---Petitioner

Versus

LESCO and others---Respondents

Writ Petition No. 73192 of 2019, heard on 6th December, 2019.

(a) Electricity Act (IX of 1910)---

----S. 26-A---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Electricity bill---Resolution of dispute---Civil court, jurisdiction of---Petitioner was consumer of electricity company and filed civil suit for correction of his bill on plea that it was illegal and unlawful---Trial Court allowed interim injunction application and directed electricity company to restore connection of petitioner---Lower Appellate Court modified order passed by Trial Court on stay application---Validity---Matter before civil court did not relate to detection bill or theft of electricity or illegal abstraction of energy, rather matter was with regard to dishonest consumption of energy through manipulation of or tampering with metering equipment or other similar apparatus as well as matter related to meter or maximum demand indicator and other measuring apparatus supplied for ascertaining energy consumed at premises---High Court directed Trial Court to decide issue of jurisdiction and remanded matter for decision afresh---Constitutional petition was dismissed accordingly.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371; Colony Textile Mills Ltd., Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO), Multan and 2 others 2004 SCMR 1679; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; MEPCO and others v. Advisory Board, Punjab, Lahore and others PLD 2017 Lah. 769; WAPDA through Chairman and 3 others v. Advisory Board, Punjab, through Chairman and 2 others 2015 MLD 299; WAPDA v. Muhammad Azeem 2009 MLD 1434 and Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs PLD 2008 Lah. 175 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court exercises its Constitutional jurisdiction when it finds an order without lawful justification, jurisdiction and authority.

Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 rel.

Muhammad Hafeez Rafique for Petitioner.

Rana Muhammad Siddique for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 619 #

2020 Y L R 619

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

MUHAMMAD RASHID HUSSAIN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 1268 of 2017, 449 and Criminal Revision No. 170 of 2018, heard on 3rd April, 2019.

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

----Ss. 324, 337-A(2), 337-F(2), 365-B, 376 & 34---Attempt to commit qatl-i-amd, shajjah-i-mudihah, ghayr-jaifah-badiah, kidnapping, abducting or inducing woman to compel for marriage etc., rape, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons after trespassing into the house started be labouring the mother of complainant---Accused caused injuries by giving danda blows on the head of mother of complainant---Accused persons also forcibly abducted the wife of complainant by boarding her on a car---Accused persons also stole away 11 tola gold ornaments, cash of Rs. 1,20,000/- stitched and unstitched clothes and mobile phone---Ocular account in the present case had been furnished by four witnesses including complainant and victim---Record showed that Trial Court had passed conviction against the accused-appellants while believing the statement of injured mother of complainant---Cross-examination upon her could not have been conducted on account of her non-exposure, on any of the dates, before her death, in court---Crucial question emerged as to whether the conviction and sentence recorded by the Trial Court through its impugned judgment solely on the basis of a statement/examination-in-chief of a witness without affording any opportunity of cross-examination over the witness to the defence, would be sustainable or not---Trial Court had disbelieved the entire ocular account furnished by witnesses including victim and complainant and acquitted appellants and their co-accused of the charge under Ss. 364-B & 376, P.P.C. which offences were graver in terms of entailing greater punishment---Discarding and non-reliance by the Trial Court upon such evidence also shed its adverse implications overall on the case of the prosecution---Remaining evidence relied upon by the Trial Court was examination-in-chief of injured mother of complainant, which in absence of giving a fair opportunity of conducting cross-examination, being inadmissible in evidence, could not be relied upon for maintaining and upholding the impugned conviction by High Court---Trial Court had proceeded to hold, both the accused-appellants guilty under S.324, P.P.C.---Perusal of provisions of S.324, P.P.C., in view of the alleged incriminating material on record, did not even remotely suggest the existence of any circumstance in the case for attracting provisions of S.324, P.P.C.---Nature of injuries noted down by the Female Medical Officer had been classified as shajjah-e-mudihah falling under S. 337-A(ii), P.P.C. and ghayr-jaifah-badi'ah falling under S. 337-F(ii), P.P.C. which had not been even declared as dangerous to life---Circumstances established that the prosecution had failed in bringing on record any admissible evidence to prove the charges against the accused persons---Appeal was allowed and accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

Ghulam Haider v. The State 2018 MLD 450 and Arbab Tasleem v. The State PLD 2010 SC 642 rel.

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

----Arts.132 & 133---Cross-examination---Object---Object of granting a right of cross-examination could only be achieved after affording a fair opportunity to an opposite party, likely to be adversely affected, being on the receiving end in the shape of examination-in-chief from statement so recorded by the court, in all the matters---To adjudge the veracity, credibility and trustworthiness/ truthfulness of the witness enabled the court, for relying upon, while deciding the matter before it---Grant of a fair opportunity for cross-examining a witness by the adversary had its genesis and roots in the principle of audi alteram partem, duly codified in the shape of Art.10-A of the Constitution---Unless and until the accused was offered/granted right of cross-examination over a witness who had deposed against him, such a statement would have no evidentiary value and as such would be inadmissible for acting upon it or for drawing any inference therefrom against the adversary party.

----Recovery--- Scope--- Recovery was deemed to be a corroborative piece of evidence to the direct evidence---In case direct evidence was disbelieved, it would not be safe to maintain conviction on confirmatory evidence.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---One circumstance which created reasonable doubt in the veracity of the prosecution version would be sufficient 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; Arif Hussain and another v. The State 1983 SCMR 428 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Saeed Ahmad Farrukh for Appellants.

Abdul Wadood, D.P.G. for the State.

Nemo for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 666 #

2020 Y L R 666

[Lahore]

Before Shahid Bilal Hassan, J

UMAR HAYAT---Petitioner

Versus

MUHAMMAD IQBAL ARSHAD GORAYA and others---Respondents

Writ Petition No. 50319 of 2019, decided on 13th September, 2019.

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

----O. VII, R. 11---Suit for declaration---Rejection of plaint---Limitation---Time-barred suit---Petitioner had assailed order of revisional court whereby his plaint was rejected under O. VII, R. 11, C.P.C.---Validity---Father of petitioner and other plaintiffs remained alive for about 43 years after the demise of auction purchaser, but during his lifetime he had never agitated the matter before any forum---Had the father of petitioner paid the amount of his share, he would have assailed the matter of allotment in favour of auction purchaser, but he took no steps---Petitioner, even after the death of his father took no action for 16 years---Suit of the petitioner was barred by limitation---No jurisdictional defect or legal infirmity was available in the impugned order warranting interference by the High Court in the exercise of extraordinary constitutional jurisdiction---Constitutional petition, being devoid of force and substance, was dismissed.

(b) Limitation---

----Question of law---Question of limitation if not taken or raised by the party, could be considered by the court even at appellate and revisional stage.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705 and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others 1992 SCMR 2435 ref.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 and United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380 rel.

YLR 2020 LAHORE HIGH COURT LAHORE 711 #

2020 Y L R 711

[Lahore (Bahawalpur Bench)]

Before Ch.Muhammad Masood Jahangir, J

NEHAL and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revisions Nos.91-D, 98 and 99 of 2008, heard on 24th October, 2019.

(a) Fraud---

----Fraudulent proceedings--- Effect---Fraud vitiates most solemn proceedings---Any order/act obtained through fraud neither can be protected nor perpetuated.

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

----S. 30(2)---Proprietary rights---Prohibited zone---Cancellation of conveyance deed---Concurrent findings of facts by two courts below---Plaintiffs claimed propriety rights to property in question which were declined by Trial Court and Lower Appellate Court for being in prohibited zone---Validity---Nobody could be given proprietary rights of area falling in prohibited zone but Board of Revenue through its various directions was eager to accommodate allottees who fell within restricted limits---Allottees were also bound by conditions of allotment as well as instructions issued time and again by competent forum to regulate policy of allotments---Conveyance deed of plaintiffs were attested in disregard of prevalent instructions and could not display its authenticity or genuineness---Plaintiffs by approaching Trial Court were provided ample opportunities to prove that area in dispute was not part of prohibited zone who completely failed despite availing chance to lead evidence in such behalf---High Court declined to interfere in judgments passed by two courts below as they were fully justified to non-suit plaintiffs and their suits and appeals were rightly dismissed---Revision was dismissed in circumstances.

Nadeem Iqbal Ch. for Petitioners.

Ch. Shahid Mehmood, A.A.G. for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 736 #

2020 Y L R 736

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MAQBOOL and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 6768-B of 2018, decided on 19th March, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 452, 354, 337-F(i), 337-A(i), 337-L(2), 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, damiyah, shajjah-i-khafifah, punishment for other hurt, rioting, armed with deadly weapon---Pre-arrest bail, grant of---Contradiction in medical and ocular evidence---Completion of investigation---Scope---Accused persons sought pre-arrest bail to avoid irreparable loss to their reputation---Allegation against accused persons were that one of them injured a witness by giving "sota" blow on his head; other accused was alleged to have given a "sota" blow on the arm of the deceased and the accused, real brother of main accused, was attributed the role of causing blow on the head of the deceased, which proved to be fatal---Injury attributed to one accused was declared as shajjah-i-khafifah, which was a bailable offence---Medical Officer had observed only one injury on the head of deceased---Eye-witness had not attributed any role to the real brother of main accused in her statement recorded under S. 161, Cr.P.C.---Almost 15 persons were involved in the occurrence and all of them were related inter se---Common object and unlawful assembly had to be finally determined by the Trial Court---Investigation of the case was complete---Application for grant of pre-arrest bail was allowed and ad-interim pre-arrest bail already granted to the said accused persons was confirmed, in circumstances.

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

----Ss. 497 & 96---Bail---Recovery---Search warrant---Scope---Arrest of accused person is not necessary for the purpose of recovery---Investigating officer can obtain a search warrant for that purpose.

Ch. Kabeer Ahmad Gill with Petitioners Nos. 1, 3 and 4.

Hassan Mahmood Khan Tareen, Deputy Prosecutor General with Shahzad, S.I. for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 745 #

2020 Y L R 745

[Lahore]

Before Rasaal Hasan Syed, J

ASGHAR ALI---Petitioner

Versus

MUHAMMAD SALEEM AKHTAR and 5 others---Respondents

Writ Petition No.32655 of 2019, heard on 21st November, 2019.

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

----O. VII, R. 11---Rejection of plaint---Prerequisites---For purpose of rejection of plaint court needs to confine to contents thereof for purposes of determining if it discloses a cause of action, not barred by law and that it was improperly valued or insufficiently stamped and on being called upon to make up deficiency of definite amount of court-fee if deficiency is not made up.

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

----O. VII, R. 11---Rejection of plaint---Extraneous material / facts---Plaintiff was aggrieved of rejection of his plaint by Lower Appellate Court in exercise of revisional jurisdiction---Plea raised by plaintiff was that plaint could not be rejected by referring documents not forming part of plaint---Validity---While considering application under O. VII, R. 11, C.P.C. facts as asserted in plaint need to be accepted as correct---If there was some dispute in regard to their correctness, same could be resolved after issues and evidence---Plaint could not be rejected simply because respondent denied facts---While rejecting plaint, court had to confine to contents thereof and any extraneous material or fact which was alleged by other party or introduced in his written statement, could not be based for rejecting plaint---High Court while restoring order passed by Trial Court, set aside order passed by Lower Appellate Court as it suffered from serious error of law and jurisdiction and was unsustainable---Constitutional petition was allowed in circumstances.

----S. 3---Limitation, question of---Scope---Objection of limitation is a mixed question of law and facts and can be determined after proper framing of issue and recording of evidence.

Irshad Ali v. Sajjad Ali and 4 others PLD 1995 SC 629 and Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493 rel.

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

----S. 149 & O. VII, R. 11(c)---Rejection of plaint---Court-fee, deficiency of---Extension of time---Principle---In terms of O. VII, R. 11, C.P.C. court first has to determine amount as valuation of suit and if there is any issue, to determine if there was any deficiency and if so, to what extent and to give a directive to plaintiff to make it up within time so specified in order---Rejection of plaint can only be made if on determination of correct valuation as also amount of deficiency and of issuance of direction to make it up, petitioner if fails to do the needful, plaint could be rejected though court still has power to extend time under S. 149, C.P.C. if sufficient reasons are put forth.

Mst. Parveen v. Mst. Jamsheda Begum and others PLD 1983 SC 227 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

Muhammad Ahsan Hussain for Petitioner.

Shahid Azeem for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 827 #

2020 Y L R 827

[Lahore]

Before Shehram Sarwar Ch. And Farooq Haider, JJ

WAZIRISTAN KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.2190 of 2016 and Murder Reference No.2 of 2017, heard on 25th November, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Opinion of medical expert---Time of death---Determination---Complainant lodged FIR against accused persons for committing qatl-i-amd of his father due to longstanding enmity---Opinion of expert was to be based upon settled principles on the subject and examined carefully on touchstone of said principles---If the opinion was found contrary to said principles, then it would be taken ipse dixit and court could make its opinion while preferring the settled principles---Doctor who conducted post-mortem examination of both deceased persons opined that probable time between death and post mortem was five to six hours but had found that rigor mortis had developed---Such opinion regarding duration of time between death and post mortem was not tallying with time usually consumed for reaching rigor mortis to 'developed stage'---Prosecution failed to prove its case against accused persons, in circumstances---High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of the charge---Appeal was allowed.

Parikh's Textbook of Medical Jurisprudence and Toxicology and Modi's Medical Jurisprudence and Toxicology ref.

(b) Criminal trial---

----Medical evidence--- Evidentiary value---Medical evidence is merely a supportive/confirmatory type of evidence which can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but not about identity of assailant who caused the injury.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

----Motive---Nature of evidence---Motive is merely corroborative piece of evidence and when ocular account has not been believed, then it loses its significance---Motive is double-edged weapon and same can also be considered as reason for false involvement---Single dent in case of prosecution is sufficient for acquittal.

Tariq Pervez v. The State 1995 SCMR 1345; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

Rafique Javed Butt for Appellants.

Rai Akhtar Hussain, Deputy Prosecutor General for State.

Imran Ahmad Malik for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 854 #

2020 Y L R 854

[Lahore]

Before Shujaat Ali Khan, J

Sh. SAEED UL HASSAN---Petitioner

Versus

Sh. MOHAMMED IMRAN and 6 others---Respondents

Writ Petition No. 920 of 2017, decided on 9th October, 2019.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 2 (l) (iii)---Ejectment petition against sub-tenant---Maintainability---Demised premises was rented out by tenant in favour of sub-tenant---Eviction petition against sub-tenant was accepted concurrently--- Validity--- No written consent on the part of landlord in favour of tenant to induct sub-tenant was on record---When oral assertion had been rebutted by a written document then preference was to be given to the document---Sub-tenant was rented out demised premises by tenant---Constitutional petition of sub-tenant was dismissed, in circumstances.

Mian Muhammad Saeed v. Muhammad Mansoor Ali Khan and others 1991 SCMR 1209; Muhammad Nayab v. Additional District Judge, Rawalpindi and 2 others 2016 MLD 1095; Hakim Khushi Muhammad v. Mst. Talaat Rana and 7 others 2010 CLC 819; Messrs Akbar Brothers through Managing Partner v. M. Khalil Dar through Legal Heirs PLD 2007 Lah. 385; Mashkoor Ahmad alias Mashkoor Hussain through Legal Heirs and others' case 2001 YLR 2915; Minochar N. Kharas represented by Legal Heirs v. Ali Hassan Manghi and 6 others 1986 CLC 1378 and Kafayatullah v. Muhammad Inayat 1983 CLC 3316 ref.

Bara Khan v. Munir Ahmed PLD 1989 Quetta 94 distinguished.

Mehraj Din and another v. Muhammad Yasin and 2 others PLD 1968 Lah. 20 rel.

Malik Amjad Pervaiz and Allah Rakha Chaudhary for Petitioner.

Fazal ur Rehman Abid for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 869 #

2020 Y L R 869

[Lahore (Multan Bench)]

Before Asim Hafeez, J

ZAHID MEHMOOD---Petitioner

Versus

MEMBER (JUDICIAL-VII), BOARD OF REVENUE and others---Respondents

Writ Petition No.3472 of 2016, decided on 3rd December, 2019.

Punjab Land Revenue Rules, 1968---

----R. 17---Lumberdar, appointment of---Respondent was a practicing lawyer---Academic qualification of petitioner was dubious---Revenue Authority had minutely considered the credentials, qualifications and status of contesting candidates and proceeded in accordance with law---Respondent had secured higher marks for appointment as Lumbardar than the petitioner---No illegality had been pointed out in the impugned order passed by the Revenue Authority---Constitutional petition was dismissed, in circumstances.

Muhammad Yousaf v. Member, Board of Revenue, and others 1996 SCMR 1581; Israr-ul-Haq v. Member Board of Revenue, Punjab, Lahore and others 2016 SCMR 2090; "Muhammad Shareef, Sakina Bibi v. Member Board of Revenue, Punjab, Lahore and others 2006 MLD 996 and Muhammad Maalik v. Member Board of Revenue, Punjab, Lahore and 3 others 2006 CLC 755 distinguished.

Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 rel.

Muhammad Tufail Alvi for Petitioner.

Sahibzada Aurangzeb for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 916 #

2020 Y L R 916

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

SAGHEER alias BILLA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 33-J, P.S.A. No.211 and Murder Reference No.135 of 2016, heard on 29th October, 2019.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party made firing upon the father-in-law of complainant, due to which he died at the spot---Motive behind the occurrence was that the son of the deceased had divorced the sister of two accused---Ocular account had been furnished by two eye-witnesses including complainant---Both the witnesses throughout the investigation and trial testified that four accused persons nominated in the FIR had actually fired upon the deceased with their respective weapons and they were the persons who were responsible about the murder of deceased---Trial Court disbelieving their testimonies proceeded to acquit three out of four nominated accused persons and convicted the accused-appellants who had been nominated through supplementary statement made by complainant---Complainant and other witnesses had not given any role of making fire shots on the person of the deceased rather it had categorically been stated by the complainant and eye-witness that appellants were standing to guard the actual culprits at the corner of the street---Trial court had mainly relied upon the confessional statement made by appellant before the Magistrate, in which he had allegedly stated that he along with co-appellant were responsible of committing the murder of the deceased---Record showed that except confessional statement, which had been retracted by the said appellant during the course of trial, there was no incriminating evidence available on record about the guilt and role allegedly played by him during the alleged incident---Not a single witness was produced by the prosecution who could corroborate that aspect of the case about the culpability of the appellant---Entire prosecution evidence right through the investigation and during the trial revolved around the accused persons nominated in the FIR and not even a single word had been uttered regarding the culpability of the appellant as he allegedly claimed in his confessional statement before the Magistrate---Appellants had no concern with the motive---Prosecution had failed to prove its case against the accused-appellants beyond shadow of reasonable doubts---Appeal was allowed and accused were acquitted by setting aside conviction and sentences record by the Trial Court, in circumstances.

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

----Ss. 302(b), 148, 149 & 109---Criminal Procedure Code (V of 1898), Ss. 164 & 364---High Court (Lahore) Rules and Orders, Vol. III, Chap. 13---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Confessional statement, recording of---Record transpired that Magistrate while recording confessional statement of appellant failed to admonish and put necessary questions to appellant with respect that his custody would not be handed over to the police after recording his confessional statement---Handcuffs of the said appellant had not been removed while recording the statement and only fifteen minutes had been given to him to think before recording confession---Circumstances suggested that Magistrate while recording confessional statement had not complied with the provisions of Ss. 164 & 364, Cr.P.C. and also violated the guidelines enumerated in Volume III, Chapt. 13 of the High Court (Lahore) Rules and Orders---Such type of confessional statement could not be read against the maker.

----Ss. 164 & 364---Confessional statement, retraction from---Scope---Retracted confession without being materially corroborated could not be made the basis of conviction.

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

----S. 164---Confession---Voluntariness---Scope---If confession was voluntary, it must also be established that it was true and for the purpose of establishing its truth it was necessary to examine the confession and compared same with the rest of the prosecution evidence and the probabilities of the case.

Nadir Hussain v. The Crown 1969 SCMR 442; Dhani Bakhsh v. The State PLD 1975 SC 187 and Ghulam Muhammad v. The State 1982 PCr.LJ 1217 rel.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Record showed that .30-bore pistols were allegedly recovered from both the accused-appellants and their reports from the office of Forensic Science Laboratory were positive---No allegation of firing on person of the deceased was levelled by both the eye-witnesses against the appellants and their roles as ascribed in the crime report was of abetment---Recoveries allegedly effected from the appellants and its positive reports were of no consequence and hardly advanced the case of prosecution.

Imran Arif Ranjha for Appellant No.1 Sagheer alias Billa.

Aiyan Tariq Bhutta for Appellant No.2 Mohsin Shah.

Syed Karamat Ali Naqvi for the Complainant (in PSLA No.211 of 2016 on behalf of the petitioner).

Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 961 #

2020 Y L R 961

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ABID HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 70-J of 2011 heard on 16th October, 2019.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Recovery of narcotics---Samples, preparation of---Procedure---Search was to be made at spot and samples from recovered narcotics substance seized, must be drawn on spot of recovery in presence of accused persons---Mention to such effect should invariably be made in recovery memo drawn on spot.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Recovery proceedings---Benefit of doubt---Un-explained delay in registration of FIR---Charas weighing 343 kilograms from 343 packets was recovered from secret cavities of truck---Trial Court convicted and sentenced accused persons to imprisonment for life---Validity---Neither weight was taken on spot of contraband substance allegedly recovered from accused persons nor any mention was made in recovery memo that in whose custody said packets of Charas remained from time of recovery till preparation of recovery memo---Investigating officer chalked out FIR with delay of 8 hours and 30 minutes---Prosecution failed to prove safe custody of narcotic substances got recovered from accused persons---Parcels of recovered Charas were not kept in safe custody and claim of prosecution that parcels of recovered Charas were not tampered with was doubtful---Patent infirmity was noticed in reports which was found to be fatal to case of prosecution---High Court declined to uphold and sustain judgment of conviction and sentence against accused persons passed by Trial Court---Accused persons deserved to be given benefit of doubt and findings in such regard were required to be set aside---Prosecution was not able to prove its case beyond all reasonable doubts against accused persons for offence under S.9(c) of Control of Narcotic Substances Act, 1997---High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge---Appeal was allowed in circumstances.

----R. 6---Recovery of narcotics---Chemical examination report---Prescribed form---Effect---Omission to state either result of test or protocols of test applied is a substantial omission which goes to root of existence of report 'with prescribed form'---If protocols of test are not stated in report, report should be held to be not a report 'in prescribed form' within meaning of rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and cannot be treated as evidence of facts stated therein.

Naveed Afzal Basra (Defence Counsel) for Appellant No.1

Javed Sabir for Appellant No.2.

Malik Muhammad Irfan, Special Prosecutor for ANF for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1006 #

2020 Y L R 1006

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.173 and Criminal Miscellaneous No.5119-M of 2017, heard on 10th July, 2019.

Penal Code (XLV of 1860)---

----Ss. 337-X & 337-Y---Payment of Arsh and Daman---Installments---Trial Court convicted and sentenced accused and Lower Appellate Court maintained conviction---Plea raised by accused was that amount of Arsh and Daman be allowed to be deposited in equal installments as mandated under Ss.337-X & 337-Y, P.P.C.---Validity---Accused had almost served out his entire sentence and was going to be released after two months subject to payment of fine, Arsh and Daman---High Court directed release of accused subject to his furnishing security/surety equal to amount of Arsh and Daman to satisfaction of Trial Court---High Court directed Trial Court to grant accused two years' time for payment of Arsh and Daman which would be payable in equal installments---Time and amount of installments would be fixed by Trial Court and in case of single default, accused should be taken into custody and dealt in accordance with law---Revision was dismissed accordingly.

Malik Matee Ullah for Petitioner.

Nemo for the Complainant.

Ms. Tahira Parveen, District Public Prosecutor for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1069 #

2020 Y L R 1069

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

GHULAM NABI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.580 of 2019, heard on 10th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 311, 302, 324, 450 & 34---Compounding of offence---Tazir after waiver or compounding of right of qisas in qatl-i-amd---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with imprisonment for life and common intention---Scope---Convict was alleged to have murdered the deceased and injured an eye-witness---Convict, during pendency of appeal, moved application for seeking permission to effect compromise as legal heirs of the deceased had compounded the offence and had waived their right of qisas and diyat in the name of Almighty Allah and they had no objection if the accused was acquitted of the charge---All major legal heirs of deceased had appeared before Sessions Judge and had recorded their statements on oath that they had forgiven the convict and waived their right of qisas and diyat in the name of Almighty Allah voluntarily and with their free consent and had no objection if the accused was acquitted of the charges---Injured witness also appeared before the Sessions Judge and got recorded her statement on oath that she had forgiven the convict and compounded the offence under S. 324, P.P.C. of her own free will and consent in the name of Almighty Allah---High Court, in the interest of justice, with a view to promote peace and harmony between the families concerned as well as in the society granted permission to compound the offences---Section 311, P.P.C. did not attract in the circumstances of the case as the families had decided to live peacefully after forgetting incident---Application filed by convict was accepted and his appeal was allowed, in circumstances.

Prince Rehan Iftikhar Sheikh for Appellant.

Syed Nadeem Haider Rizvi, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1081 #

2020 Y L R 1081

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ASIF ALI and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.76040/B of 2019, decided on 19th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code ( XLV of 1860), Ss.337-A(iii), 337-F(i), 427, 148 & 149---Interim bail, confirmation of---Further inquiry---Cross version---Delay of four months and two days in lodging of cross version for which no plausible explanation had been rendered---As to which party was aggressor and which was aggressed upon, would be determined after recording of evidence---Such circumstance itself made the case against the accused persons to be one of further inquiry within the ambit of S. 497(2), Cr.P.C---Court could look into and evaluate the mala fides from the facts and circumstances of the case and while deciding the matter of pre arrest bail could touch upon the merits of the case---Ad-interim bail already granted to accused persons was confirmed, in circumstances.

Ch. Abdul Aziz with Petitioners.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General and Ashiq S.I. with record.

YLR 2020 LAHORE HIGH COURT LAHORE 1096 #

2020 Y L R 1096

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

ESSEM HOTELS LIMITED and others---Appellants

Versus

The BANK OF PUNJAB---Respondent

Execution First Appeal No.64797 of 2019, decided on 6th November, 2019.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 66, 67 & 68---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 15---Sale of mortgaged property---Proclamation of sale by public auction---Mode of making proclamation---Time of sale---Determination of reserve price---Scope---Appellants assailed order of executing court whereby it had approved the valuation determined by the valuator, which was appointed with the consent of parties---Contentions of appellants were that the impugned order was passed in violation of O. XXI, R. 68, C.P.C.; that the impugned schedule of auction was approved without affording opportunity of hearing to the appellants; that mandatory requirements of O.XXI, Rr. 66(2) & 67(2), C.P.C. were not fulfilled; that the description of property given by the Court Auctioneers in the schedule of auction was not correct and that the report of valuators was self-contradictory---Validity---Order relating to appointment of valuator was passed by providing proper opportunity to the parties therefore, it could not be said that the appellants were not provided any opportunity of hearing---Schedule of auction revealed that time and place of auction was mentioned under the heading "Schedule of Auction" and the requirement of O. XXI, R. 67(2), C.P.C. was fulfilled by giving publication of proclamation in the newspaper---Record revealed that the court had appointed several valuators for valuation of property from time to time, and the reports submitted by them reflected the same property---Valuation report and the schedule of auction approved by court mentioned the same property falling under the same khasra number---Impugned order was passed strictly in accordance with law---Appeal, being devoid of any merit, was dismissed in limine.

Muhammad Imran Malik for Appellants.

YLR 2020 LAHORE HIGH COURT LAHORE 1120 #

2020 Y L R 1120

[Lahore (Bahawalpur Bench)]

Before Asjad Javaid Ghural and Anwaarul Haq Pannun, JJ

AKHTAR HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 127, Criminal Revision No. 64 and Murder Reference No. 15 of 2015, decided on 21st February, 2019.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence--- Contradictions---Accused were charged for committing murder of son of complainant by firing---Motive behind the occurrence was that the accused had suspicion of illicit relations inter-se deceased and female cousin of accused---Record revealed that the time elapsed between the death and post-mortem was more than 12 hours and less than 24 hours---Such fact showed that dead bodies of the deceased remained unattended after the occurrence---Delay in post-mortem examination over the dead bodies of the deceased also created doubt about the presence of the witnesses at the crime scene at the relevant time---Ocular account of the occurrence had been furnished by two witnesses including complainant---Said witnesses had claimed that at the time of occurrence they were present at the dera---Occurrence took place inside a room of the deserted dera as the prosecution had failed to establish that the dera, located in the fields distantly situated from the nearby village abadi, was being used for residential purposes---Occurrence having taken place during the odd and dark hours of the night, therefore, remained un-witnessed---Complainant had tried to bring on record that both the deceased were married to each other and produced in the court, secretary union council concerned but through the extensive cross-examination, it had come on record that there was an interpolation in Register of Council for showing the registration of marriage of both the deceased---Belated contradictory and nefarious attempt on the part of the complainant in order to show that both the deceased were married was further falsified by inquest report wherein deceased lady's father's name was different---Post-mortem report of deceased lady also had the same defect---Prosecution had failed to prove the motive and its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Site plan---Evidentiary evidence---Site plan was not a substantive piece of evidence.

State of Uttar Pradesh v. Babu and others AIR 2003 SC 3408; Tori Singh and another v. State of Uttar Pradesh AIR 1962 SC 399; Abdul Aziz and another v. The State PLD 1985 Lah. 534 and Sardar Khan and 3 others v. State 1998 SCMR 1823 rel.

----Benefit of doubt---Principle---Single instance giving rise to a reasonable doubt in the mind of the court entitled the accused to the benefit of doubt not as a matter of grace but as a matter of right.

Muhammad Khan and another v. State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Muhammad Amir Niaz Bhadera for Appellants.

Syed Jamil Anwer Shah for the Complainant.

Najeeb Ullah Khan Jattoi, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1139 #

2020 Y L R 1139

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 364-J of 2018 and Murder Reference No. 127 of 2016, heard on 15th October, 2019.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Unnatural conduct of witnesses---Non-availability of justification for presence of witnesses at the place of occurrence---Scope---Accused were charged for committing murder of brother of the complainant---Motive behind the occurrence was that deceased was an eye-witness of a case wherein, present accused were involved and due to that grudge, the accused committed murder---Ocular account of the incident had been furnished by two witnesses including complainant---Record showed that the Trial Court acquitted three co-accused---Acquittal of said co-accused had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal---Eye-witness also levelled the same allegation regarding the individual role of the appellant as well as the acquitted co-accused---Statements of the eye-witnesses showed that there was no difference in the role of the appellant and that of acquitted co-accused---No independent corroboration against the appellant was found and it was not possible to distinguish the case of the appellant from the case of acquitted co-accused---Evidence of complainant and eye-witness, therefore, had no worth and was to be rejected outrightly---No source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was mentioned in the oral statement of complainant reduced into writing by SHO, despite the fact that as per prosecution's own claim, the occurrence had taken place during the night---Investigating Officer of the case, during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the relevant time for the witnesses to make a positive identity of the assailants---Prosecution had failed to establish the fact of availability of light source and in absence of their inability to do so, its existence could not be presumed---Eye-witnesses had claimed that they were present near the assailants at the time of firing---Both of the said witnesses did not even receive a single scratch on their person---If the witnesses had been present then they would not have been spared as the number of injuries on the person of the deceased showed the degree of venom and design the killers had for the deceased---Circumstances suggested that it was illogical that being perceptive of the fact that if the witnesses were left alive they would depose against the accused even then the assailants did not cause any injury to them---Such behaviour, on the part of the accused, runs counter to natural human conduct---Said witnesses were proved to be not present at the time of occurrence at the place of occurrence---Both the witnesses were neither the ones who identified the dead body at the time of post-mortem examination nor they were mentioned as being present near it at the time of preparation of the inquest report---Statements made by the said eye-witnesses had failed to receive any independent corroboration or support---Prosecution had failed to prove its case against the accused, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR 1707; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Azhar Mehmood and others v. The State 2017 SCMR 135 and Arshad Khan v. The State 2017 SCMR 564 rel.

(b) Criminal trial---

----Common set of witnesses---Scope---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---If a witness was not coming out with a whole truth, his evidence was liable to be discarded as a whole and his evidence could not be used either for convicting accused or acquitting some of them facing trial in the same case.

Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527 rel.

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradiction in the statement of witnesses---Scope---Accused were charged for committing murder of brother of the complainant---Eye-witnesses made blatant and dishonest improvements in their earlier statements---Improvements with respect to role of the accused and the presence of source of light at the place of occurrence at the relevant time---First Information Report showed the role attributed to the accused was that he fired on the left hip of the deceased---Similarly, when the oral statement of complainant was reduced into writing by the Investigating Officer, the role attributed to the accused as well as his acquitted co-accused was that their fires hit on the left side---Subsequently a very visible interpolation was made in the oral statement of complainant and the word "left" was changed to "right" with regard to the seats of injuries attributed to the accused and his acquitted co-accused---Eye-witness, during cross-examination was confronted with his statement under S.161, Cr.P.C., wherein the seat of injury attributed to the accused was not recorded as right hip rather it was mentioned as "Kookh"---Said two witnesses had improved upon their previous statements, hence their credit stood impeached and they could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Ashraf v. State 2012 SCMR 419 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive, proof of---Accused were charged for committing murder of brother of the complainant---Motive behind the occurrence was that deceased was an eye-witness of a case and in that case, present accused were involved---Both the witnesses of ocular account, during the cross-examination, admitted the existence of enmity between the parties---Motive of the occurrence as mentioned by both the witnesses was the same---Statements of said witnesses showed that their claim was that they were present near the assailants at the time of firing---Scaled and un-scaled site plans of the place of occurrence revealed that the occurrence took place in a cattle shed---Eye-witnesses, by their own admission were in clear view at a meagre distance from the assailants and were un-armed---Said witnesses stated that all the accused were armed with pistols and neither there was any dearth of ammunition nor that of intent and opportunity---Prosecution witnesses would not have been shown the courtesy of being not fired at---Prosecution had failed to prove the motive part of the occurrence, in circumstances.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Site plan---Scope---Accused were charged for committing murder of brother of the complainant---In the present case, as per the site plans, the deceased had received injuries from a very short distance---Both the witnesses of ocular account had stated that the deceased had received the injuries from a distance of 5-6 feet---Statement of Medical Officer did not find the presence of any blackening on any of the four entry wounds which were to be there if the distance of fire was as short as suggested by the eye-witnesses.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Promptitude in reporting the matter to the police---Scope---Accused were charged for committing murder of brother of the complainant---Matter was reported to the police promptly---Statement of complainant was reduced into writing by official witness/Sub-Inspector of Police, who sent the said statement to the police station where formal FIR was registered---Station House Officer/witness was allegedly present near the place when he got information about the incident and reached the place of occurrence---No one out of the eye-witnesses had told him about the occurrence---None of the witnesses including eye-witnesses ever proceeded to report the matter to the police---Said fact had left no doubt that the witnesses were not present at the place of occurrence at the time of incident and proved that the said oral statement reduced into writing was just a compromised and fake document.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence--- Reliance--- Scope--- Accused were charged for committing murder of brother of the complainant---Record showed that a pistol was recovered from the accused-appellant---Said recovery could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of said pistol from the accused, which was in clear violation of S.103, Cr.P.C.---Said recovery could not be used as incriminating evidence against the accused---Prosecution had failed to prove its case against the accused.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Principle---Tainted piece of evidence could not corroborate another tainted piece of evidence.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(i) Criminal trial---

----Motive and recovery---Evidentiary value---Motive and recovery were only corroborative pieces of evidence---If the ocular account was found to be unreliable then motive and recovery had no evidentiary value and lost their significance.

(j) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in the mind of a prudent person, gives benefit to accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 236 rel.

Tahir Mahmood for Appellant.

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

Ghulam Meeran for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1188 #

2020 Y L R 1188

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

LIAQAT and 4 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 262 and Murder Reference No.32 of 2015, heard on 7th November, 2017.

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

----Ss. 302(b), 364, 148 & 149---Qatl-i-amd, kidnapping, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradiction in the statement of eye-witnesses---Non availability of justification for presence of such witnesses at the place of occurrence---Conduct of the witnesses---Scope---Accused were charged for committing murder of brother of the complainant---Motive behind the occurrence was that in the year 1996, a case was registered with regard to the murder of brother of accused and in that case, except complainant, all the accused were acquitted and complainant was convicted for life imprisonment---Ocular account of the incident had been furnished by two witnesses/brothers of the deceased---Said witnesses were not the residents of the place of occurrence, thus they were all "chance witnesses"---Said witnesses could not establish their acclaimed presence at the spot and stated that they were fired at by the appellants at two different places---Investigating Officer did not collect or find any empties at the said two places from where the appellants had allegedly fired at the witnesses---Both the witnesses had claimed that they were attracted to the place of occurrence on hearing fire shots when they were present at the house of their uncle---Eye-witness had mentioned that after hearing the fire shots, they ran outside from the house of their uncle but the other eye-witness had claimed that they were going to the cotton crop when they heard the fire shots---Eye-witness never claimed that they were present inside the house of their uncle and from there they proceeded towards the place of abduction---No motorcycle under the use of accused was recovered---In the scaled site plan of the place of occurrence, rough site plan of the place of occurrence and rough site plan of the place of recovery of motorcycle, neither any house nor any shop belonging to the eye-witnesses was marked---House of uncle of eye-witnesses, wherein both the prosecution witnesses were allegedly present prior to the occurrence, was also not shown in the said site plans---Uncle of eye-witnesses did not appear before the Investigating Officer nor was produced by the witnesses to support the claim of the prosecution witnesses that the eye-witnesses were indeed present in the house of said witness---All the said omissions were conspicuous by their absence---In absence of physical proof of the reason for the presence of the witnesses at the crime scene, the same could not be relied upon---Witnesses had claimed that they were present near the assailants at the time of firing---Scaled and the un-scaled site plans revealed that the occurrence took place in a graveyard---As per the witnesses the common object of the accused was that accused of the murder of brother of appellant should not be escaped, thus complainant was also a prime target---Witnesses admitted that they were in clear view, at a meager distance, from the assailants and un-armed---Witnesses stated that all the accused were armed with pistols and neither there was any dearth of ammunition nor that of intent and opportunity---Fact that prosecution witnesses would have been shown the courtesy of being not fired at effectively was hard to believe---Both of the said witnesses did not even receive a single scratch on their person---Had the witnesses been present, they would not have been spared as the number of injuries on the person of the deceased showed the degree of venom and design the killers had for him---Both witnesses even deposed that they were fired at during the occurrence but were miraculously saved in the midst of all the firing---Illogical that the witnesses were left alive---Such behavior, on part of the accused, ran counter to natural human conduct---Circumstances established that serious doubts were available regarding the involvement of accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

(b) Criminal trial---

----Witness---Chance witness---Statement of chance witness---Scope---Testimony of chance witnesses was always looked with suspicion---In order to qualify acceptance for awarding conviction, the evidence of chance witness was to be evaluated on the touchstone of corroboration from other source of unimpeachable character---If the tale of occurrence provided by such a witness was supported and corroborated from other attending circumstances, superstructure of conviction could be raised thereupon, otherwise, it was destined to be discarded---Chance witness was described and defined as the one who had no plausible explanation for his presence near the place of occurrence at the time of commission of offence.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

----Ss. 302(b), 364, 148 & 149---Qatl-i-amd, kidnapping, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay in conducting the post-mortem---Effect---Accused were charged for committing murder of brother of the complainant---Record showed that the matter was reported to the police at 12.00 p.m., when the oral statement of complainant was reduced into writing---Postmortem examination on the person of the deceased was conducted after a delay of about five and half hours from the time of recording of the oral statement---Medical Officer, who conducted the postmortem examination of deceased, opined about the probable duration of time between death and post-mortem as 7 to 8 hours---Such delay was reflective of absence of witnesses and the sole purpose of causing such delay was to procure the presence of witnesses and to further advance a false narrative to involve any person---Post-mortem report showed that the mouth of the deceased had been stated to be opened, which clearly showed that the dead body was not attended to by his brothers as claimed---Dead body of the deceased was identified by witnesses and not by brothers of the deceased---Perusal of the inquest report showed that the eye-witnesses/brothers of the deceased were not mentioned as being present at the place of occurrence at the time of preparation of the said inquest report---Occurrence statedly took place at 10.30 a.m. whereas the autopsy was conducted at 5-30 p.m., development of complete rigor mortis on the body of the deceased in the hot weather of month of July contradicted the time of occurrence deposed by the witnesses---Development of rigor mortis within such short span of time was implausible and the occurrence did not appear to have taken place at the point of time mentioned by the witnesses---Time of occurrence as deposed by the eye-witness was not free from uncertainty---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Noor Ahmad v. The State and others 2019 SCMR 1327 and Asad Rehmat v. The State and others 2019 SCMR 1156 rel.

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

----Ss. 302(b), 364, 148 & 149---Qatl-i-amd, kidnapping, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Promptitude in reporting the matter to the police---Effect---In the present case, complainant had laid much stress on the promptitude in reporting the matter to the police---Official Witness/Sub-Inspector of Police had reduced into writing the oral statement of the complainant at specified place---Complainant, while appearing before the Trial Court, did not support the fact that he got recorded his statement to Official Witness/SI at specified place---Said fact, held, proved that the oral statement reduced into writing was just a compromised and a fake document.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b), 364, 148 & 149---Qatl-i-amd, kidnapping, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recoveries of pistols from the possession of accused---Reliance---Scope---Accused were charged for committing murder of brother of the complainant---Record showed that the recoveries of pistols were made from the accused/appellants---Said recoveries made from the appellants could not be relied upon as the Investigating Officer did not join any witness of the locality during the recoveries, which was in clear violation of S. 103, Cr.P.C.---Such recoveries, therefore could not be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and was hit by the exclusionary rule of evidence---Recovered pistols were not sent to the office of Forensic Science Agency for analysis---In absence of any such report, the recoveries were inconsequential.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(f) Criminal trial---

----Motive---Scope---Motive was only a corroborative piece of evidence---If the ocular account was found to be unreliable then motive had no evidentiary value and lost its significance.

(g) Criminal trial---

----Motive---Scope---Motive was a double-edged weapon which could also be the reason for the false involvement of the accused.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person was available then its benefit was to be extended to accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Javed Iqbal Bhatti and Zia ur Rehman Randhawa for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Ch. Faqir Muhammad and Nadeem Muhammad Tarar for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1232 #

2020 Y L R 1232

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SARFRAZ and 2 others---Petitioners

Versus

SENIOR MEMBER, BOARD OF REVENUE and 209 others---Respondents

Writ Petition No. 512 of 2011, heard on 12th June, 2019.

Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Punjab Consolidation of Holdings Rules, 1998, R. 52---Confirmed consolidation scheme--- Review of---Second review petition was moved before Member Board of Revenue who quashed the confirmed consolidation scheme---Validity---Board of Revenue was vested with jurisdiction, whether invoked by an aggrieved person through a petition or suo motu, to go into the consolidation proceedings/scheme for its affirmation or otherwise---Consolidation scheme itself could not be abrogated without taking the action provided under R. 52 of Punjab Consolidation of Holdings Rules, 1998---Petitioners in earlier round of litigation had lost upto the level of Board of Revenue on judicial side---Member, Board of Revenue had ignored the said order, which had merged into the orders passed by the High Court when constitutional petitions were dismissed---Consolidation scheme had been implemented not only in the record but also on the spot---When earlier order passed by the predecessor of Member Board of Revenue had attained finality then de novo proceedings could not be initiated by the landlords---Consolidation scheme had been confirmed which could not be quashed, in circumstances---Second review petition was not competent when earlier one had been judicially culminated---Once a matter had been decided on judicial side then exercise of executive or judicial authority thereafter to nullify the effect of earlier judicial decision was improper---Impugned order passed by the Member Board of Revenue being void ab initio and nullity in the eye of law was set aside---Constitutional petition was allowed, in circumstances.

Chuttan and others v. Sufaid Khan and others 1987 SCMR 503 rel.

Maik Noor Muhammad Awan, Ch. Muhammad Aslam and Saima Hanif for Petitioners.

Umair Khan Niazi, A.A.G. for Respondents Nos. 1 to 4.

Shezada Mazhar for Respondents Nos. 5 to 210.

YLR 2020 LAHORE HIGH COURT LAHORE 1256 #

2020 Y L R 1256

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

Mst. IFFAT YAQOOB---Petitioner

Versus

R.P.O., FAISALABAD and others---Respondents

Writ Petition No. 536 of 2020, decided on 17th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of minor---Scope---Petitioner (divorcee mother), sought recovery of her minor daughter---Validity---Parties though were having different stance with regard to the manner of change of custody of minor yet there was no denial to the fact that one month prior to the date of filing petition under S.491, Cr.P.C., minor had not been residing with her father and she was not being maintained by him for the last four years---Contention of respondent (father) that brother of petitioner (mother) with the consent of their mother had handed over the minor to the respondent (father); even if taken as true, could not entitle the father to retain custody when mother of the minor was not willing to hand her over---Father had the right to approach the court of competent jurisdiction (Guardian Court) for the custody of minor---Constitutional petition was allowed and interim custody of minor was handed over to the petitioner, in circumstances.

Ms. Saba Saeed for Petitioner.

Mubeen-ud-Din Qazi for Respondent No.5.

YLR 2020 LAHORE HIGH COURT LAHORE 1266 #

2020 Y L R 1266

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD YAAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DEPALPUR and others---Respondents

Writ Petition No. 71921 of 2019, decided on 27th November, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5---Maintenance for minors---Concurrent findings for facts by two courts below---Execution of decree---"Sham transaction"---Scope---Petitioner was father of judgment debtor and objected execution of decree passed by Family Court on the plea of owner of land in question---Both the Courts below dismissed the objection considering transfer of land in favour of petitioner as sham---Validity---Mutation in favour of petitioner was got attested by judgment debtor four months after passing of decree against his son---Such transfer of land fell within the definition of "sham transaction" which was rightly cancelled by Executing Court---Readiness of petitioner for partial payment of outstanding maintenance for minors in addition to paying future maintenance, he was at liberty to satisfy the decree through his son / judgment debtor and there was nothing impeding his way but such fact could not be used to set aside execution of decree---Concurrent findings of facts recorded by Courts below could not be upset in Constitutional jurisdiction until and unless those were proved to be perverse or result of arbitrariness---Petition was dismissed in circumstances.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

YLR 2020 LAHORE HIGH COURT LAHORE 1294 #

2020 Y L R 1294

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD RAFI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 71966 of 2019, decided on 25th November, 2019.

Punjab Partition of Immovable Property Act (IV of 2013)---

----S. 8---Civil Procedure Code (V of 1908), O. I, R. 10---Impleading of party---Partition of property---Dispute on title---Grievance of petitioner was that both the Courts below declined to implead him as party to the suit for partition filed by respondents---Plea raised by respondents was that they were legal heirs of deceased owner of suit property and document relied upon by petitioner was fake and forged---Validity---Petitioner claimed declaration to the effect that he be declared owner and in alternative he claimed specific performance---Alleged agreement was not attested by any close relative of deceased owner of property and neither brother nor husband were shown to be witnesses and presence of any male member was not claimed---All such factors raised number of questions which would be attended by court ceased to suit for declaration---Till such time that suit of petitioner was decreed and he was declared to be owner, he could not claim any propriety interest in property so as to plead his entitlement for becoming party to partition suit---Necessary party was one without whom no decree could be passed or who was bound to be affected by decree---Petitioner in peculiar circumstances was neither necessary nor proper party and there were serious doubts as to genuineness of claim---Suit was filed by petitioner which was still for declaration and specific performance meant that petitioner was praying for a decree which was not passed in his favour---Co-owners of property who were necessary and proper parties were already impleaded and for petitioner, he had no title in property and was struggling for declaration in his suit---For shareholders in a joint property, in suit for partition, only subsisting owners of property were necessary and proper party---Impleading of petitioner at such a stage would result in extraneous issues which were not subject matter of suit for partition---Till petitioner had not succeeded in proving that agreement was actually executed by deceased and gift was made, he could not claim to either a co-sharer or a holder of title in property---For suit for partition presence of petitioner was neither necessary nor proper---High Court declined to interfere in order passed by Lower Appellate Court dismissing application of petitioner under O.I, R.10, C.P.C.---Constitutional petition was dismissed in circumstances.

YLR 2020 LAHORE HIGH COURT LAHORE 1327 #

2020 Y L R 1327

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD MOHSIN KULACHI alias GOMI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 109 of 2020, decided on 16th January, 2020.

Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3(1) & 5(5)---Preventive detention---Representation, non-filing of---Petitioner was detained on charges of being an anti-social element and habitual offender---Authorities contended that petitioner had alternate remedy to file representation before government---Validity---Mere availability of alternate remedy by way or representation to government against detention order had not fettered Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Authorities passed order of detention mechanically without caring for legal requirements---Ground that petitioner was engaged in antisocial activities was vague and not supported by any tangible evidence and authorities held that petitioner was a threat to public peace for only reason that he had a criminal history and was a habitual offender---Mere fact that a person was involved in certain criminal cases and associated with other people of bad character did not justify preventive detention---High Court released the petitioner and quashed order of preventive detention---Constitutional petition was allowed in circumstances.

Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur 1999 PCr.LJ 2014; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948; Mehmood v. The State 1990 PCr.LJ 1529; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913; Muhammad Ayaz Khan and 6 others v. The District Magistrate, Batagram and another 1995 PCr.LJ 587; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658; Inayat Ullah v. District Magistrate/Deputy Commissioner, Bannu and another 1998 PCr.LJ 3 and Syed Mubashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20 rel.

Syed Zeeshan Haider for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 1334 #

2020 Y L R 1334

[Lahore (Bahawalpur Bench)]

Before Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

MUNIR AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 268 of 2011, decided on 7th November, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody--- Non-production of sample-bearer---Effect---Accused was found to have been in possession of 100 kilograms of churas poast---Report of Chemical Examiner revealed that samples were sent through Excise and Taxation Officer (ETO), however, the record was silent as to how the samples reached the office of ETO, for how long it remained there and whether it remained in safe custody---Such aspect had impaired and initiated the conclusiveness and reliability of the said report---Another chemical report which was exhibited by prosecution revealed that one sample parcel was sent through an Assistant Sub-Inspector, however, he was not produced by the prosecution---Safe deposit of said sample parcel was also not proved by the prosecution---Prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed.

Muhammad Abbas v. The State 2006 YLR 2378 rel.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Unbroken chain of safe custody of recovered case property and parcel of sample is to be proved, otherwise conviction is not possible because recovery of narcotics is not corroboratory piece of evidence rather it constitutes the offence itself 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.

----Benefit of doubt---Scope---Single dent in the case of prosecution is sufficient for acquittal.

Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 ref.

Farooq Haider Malik for Appellant along with appellant (on bail).

Asghar Ali Gill, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1346 #

2020 Y L R 1346

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Sardar Ahmed Naeem, JJ

IMRAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 101222 and 101223 and Murder Reference No. 600 of 2017, heard on 17th December, 2019.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account and medical evidence---Corroboration---Accused were charged for committing murder of nephew of the complainant---Motive behind the occurrence was previous enmity---Ocular account of the occurrence had been furnished by two witnesses including complainant---Admittedly, said witnesses were closely related to the deceased/inter-se---Said witnesses withstood the test of cross-examination firmly but nothing favourable to the accused could be extracted---Record showed that it was a day light occurrence and the presence of the eye-witnesses at the crime scene could not be doubted as the parties were known to each other---Eye-witnesses had furnished the mode and manner of occurrence that the accused murdered the deceased and managed their escape good---Eye-witnesses had assigned a specific role to accused of causing firearm injuries to the deceased, corroborated by medical evidence---Incident was promptly reported---Eye-witnesses stated that accused was responsible for fire-arm injuries to the deceased which proved fatal---Accused led to the recovery of pistol .30-bore as well as churra---Enmity between the parties was not only established rather admitted by the defence in their statement recorded under S. 342, Cr.P.C.---Record transpired that the case of co-accused was distinguishable from the accused---Investigating Agency had not confirmed participation of co-accused in the occurrence---Name of the co-accused was mentioned in column No. 2 of the report submitted under S.173, Cr.P.C. being innocent---Said co-accused was not arrested in the present case---Declaration of innocence was never challenged by the complainant party before any forum by way of private complaint or otherwise---Co-accused was attributed repeated churra blows---Investigating Agency confirmed that co-accused was disabled and was suffering from polio---Investigating Officer had admitted in the cross-examination that co-accused joined the investigation voluntarily---No recovery was effected from the co-accused---Prosecution had failed to prove beyond reasonable doubt the presence of co-accused with the accused at the time of the occurrence in furtherance of common intention of both of them to murder the deceased---Motive set up by the prosecution was that brother of the accused was murdered and brother of the deceased was nominated as accused in that case---Said fact constituted mitigating circumstance in favour of the accused---In such circumstances, conviction of accused was maintained under S. 302(b), P.P.C., but the sentence of death awarded to him was altered to that of imprisonment for life---Appeal of co-accused was allowed and he was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ajun Shah v. The State PLD 1967 SC 185; Shera and others v. The State 1976 PCr.LJ 1028 and Niamat v. The State 1986 PCr.LJ 2820 ref.

(b) Criminal trial---

----Witness---Related and interested witness---Scope---Interested witness was one who had animosity towards the accused---Mere relationship of such witness with the deceased was not enough to discard his testimony---Worth of testimony of a witness determined his credibility.

Raqib Khan v. The State and another 2000 SCMR 163 rel.

Muhammad Aurangzeb and Muhammad Rizwan Qadir for Appellant (Imran).

Malik Muhammad Matee Ullah for Appellant (Muhammad Khan.)

Usman Iqbal, Deputy Prosecutor Geneal for the State.

Hammad Akbar Wallana for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1356 #

2020 Y L R 1356

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

AMAN ULLAH KHAN---Petitioner

Versus

MUZAFFAR KHAN and others---Respondents

Civil Revision No. 4335 of 2016, heard on 16th January, 2020.

Islamic law---

----Oral gift--- Proof--- Concurrent findings by two courts below---Plaintiffs claimed that property in question was transferred to them by oral gift but Trial Court and Lower Appellate Court dismissed suit of plaintiffs---Validity---Oral gift could be made by a Muslim but such transaction was required to be proved through high standard of evidence---Essential details with regard to venue, time, date and names of witnesses to when, where and before whom declaration of oral gift was made should be specifically detailed in plaint---Plaintiff not only failed to mention date of such event rather failed to recall his memory when specifically asked during cross-examination---Offer so extended was not accepted by plaintiff and he failed to establish one of the basic ingredients of his purported transaction---Other damaging feature was that alleged fact being purely an event involving future obligation could only be proved by examination of at least two witnesses as required by law---Despite nominating such number of persons before whom it affected, one out of them was deliberately withheld and only single witness in corroboration was produced which was not enough to comply with mandatory requirement of law---Sole supporting witness not only gave different time of transaction which was disclosed in contents of plaint, rather he also admitted that possession was not delivered to plaintiff---Plaintiff failed to prove his alleged transaction as such suit was rightly dismissed by courts---High Court declined to interfere in concurrent findings by two courts below as plaintiff could not point out any illegality or irregularity, non-reading or misreading of evidence---Plaintiff also could not point out any jurisdictional defect to call for interference by court in exercise of revisional jurisdiction scope of which was restricted only to correct errors of laws and facts, if were found to be committed by courts below in discharge of their judicial functions---Revision was dismissed in circumstances.

Malik Khadim Hussain for Petitioner.

Malik Mateen Ullah and Muhammad Iqbal for Respondents Nos.1 and 2.

Ch. Saeed Zafar for Respondents Nos.3(a) to 3(f).

YLR 2020 LAHORE HIGH COURT LAHORE 1370 #

2020 Y L R 1370

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

Mian MUHAMMAD SHAHBAZ SHARIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 4051 of 2019 and Writ Petition No.24052 of 2018, decided on 21st February, 2019.

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

----S. 497--- Bail--- Scope--- Deeper appreciation of evidence cannot be undertaken at bail stage, and bail petition cannot be decided in vacuum and tentative assessment of evidence/ documents is permissible.

Muhammad Hanif v. Manzoor and others 1982 SCMR 153 and Adrees Ahmad and others v. Zafar Ali and another 2010 SCMR 64 ref.

Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

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

----S. 9(b)---Constitution of Pakistan, Arts. 199 & 184(3)---Bail grant of---Jurisdiction of High Courts and the Supreme Court---Scope---Bail can be granted to accused in a suitable case by the Supreme Court and the High Courts despite the bar contained under S.9(b), National Accountability Ordinance, 1999.

Khan Asfandyar Wali Khan and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Haji Ghulam Ali v. The Suite through A.G., N.W.F.P, Peshawar and another 2003 SCMR 597 and Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 ref.

----Ss.9(a)(vi) & 9(b)---Constitution of Pakistan, Art.199---Corruption and corrupt practices---Bail, grant of---Misuse of authority---No loss to exchequer---Illegal benefits, no proof of---Further inquiry---Scope---Petitioner accused was Chief Minister of Province and prosecution's case was that Land Development Company, owned by Provincial Government, awarded a contract for development of a Housing Scheme but the same could not be performed on account of mala fide intervention of the accused---Validity---Accused Chief Minister passed direction to transfer the project from Land Development Company to Development Authority and he also decided that the project would be executed through public private partnership mode instead of government mode---Accused Chief Minister, with the approval of Board of Directors, ordered change of execution of project in Public Private Partnership mode instead of government mode---Neither single inch of State land was transferred in the name of any person/contract, nor there was any affectee of the Scheme as claimed by NAB---Prima facie there was not a single affectee in the case because no amount for allotment of any plot from any person was received by then---Only application forms along with non-refundable fee of Rs.1000/- were received from applicants and the amount was deposited in government treasury and not in account of accused---None from prosecution stated a single word against accused that he ordered inquiry regarding acceptance of his bid and contract was cancelled---Complainant settled the matter with Land Development Company with his mutual consent through a written agreement---No allegation against accused Chief Minister that he misappropriated the funds allocated for the scheme in question or had received any illegal gratification, commission or kickbacks from the contractor who was awarded the contract for construction/development of scheme---Bail was granted in circumstances.

The State v. Syed Muzaffar Hussain Shah 1998 MLD 118; Sarwar and others v. The State and others 2014 SCMR 1762; The State through Advocate General, N.W,F,P v. Zubair and 4 others PLD 1986 SC 173; Tallat Ishaq v. National Accountability Bureau through Chairman, and others PLD 2019 SC 112; C.P. No.1542 of 2016 dated 26.08.2016 and C.P. No.1618/2016 dated 03.08.2016 ref.

The State through Advocate General, N.W,F,P v. Zubair and 4 others PLD 1986 SC 173 distinguished.

Sheikh Nadeem Ahmad v. G.C. University and others 2016 MLD 1966 and Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 rel.

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

----Ss.9(a)(vi) & 9(b)---Constitution of Pakistan, Art.199---Misuse of authority---Bail, grant of---Principle---Mere allegation of misuse of authority is by itself not sufficient o refuse bail to accused---Even if there was any procedural irregularity in exercise of jurisdiction of accused, even then the same may not amount to misuse of authority so as to constitute an offence under S. 9(a)(vi) of National Accountability Ordinance, 1999.

The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 and Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564 rel.

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

----Ss. 9(a)(vi) & 9(b)---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan, Arts.13 & 199---Corruption and corrupt practices---Bail, grant of---Misuse of authority---Double jeopardy, principle of---Applicability---Accused was Secretary Implementation with Punjab Government and was arrested by National Accountability Bureau (NAB) on the allegation of cancelling award of a Housing Scheme after receiving illegal gratification from unsuccessful bidder---Validity---Contract of Housing Scheme was never awarded to unsuccessful bidder who was co-accused---Accused was not member of Board of Directors of Land Development Company who was competent to award or cancel the contract before the transfer of the project to Development Authority---Accused did not have any authority to cancel the contract nor he had any authority to award the contract to co-accused---Accused did not have any role in the affairs of Land Development Company and he was Secretary (Implementation) to Chief Minister and was merely playing the role of post office by conveying decisions of Chief Minister to Board of Directors of Land Development Company and decision of Board of Directors of Land Development Company to Chief Minister---Bail of accused in second case regarding assets beyond means had already been dismissed by High Court and only on such ground of assets beyond means bail could not be declined as same would amount to double jeopardy and was violative of Art.13 of the Constitution and provisions of S.403, Cr.P.C.---Bail was allowed in circumstances.

Muhammad Amjad Pervaiz, Azam Nazeer Tarar, Muhammad Aurangzeb and Muhammad Nawaz Chaudhary for Petitioner.

Azam Nazeer Tarar, Qazi Misbah-ul-Hassan and Muhammad Zain Qazi for Fawad Hassan Fawad for Petitioner (in connected Writ Petition No.240528 of 2018).

YLR 2020 LAHORE HIGH COURT LAHORE 1408 #

2020 Y L R 1408

[Lahore (Multan Bench)]

Before Asim Hafeez, J

MUKHTAR AHMAD---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 843-D of 2011, decided on 27th November, 2019.

Civil Procedure Code (V of 1908)--

----O. VII, R. 11 & O. II, R. 2---Specific Relief Act (I of 1877), Ss. 12 & 18---Suit for specific performance of agreement to sell---Vendor having imperfect title---Plaint, rejection of---Scope---Earlier suit for permanent injunction was decreed and thereafter plaintiff filed suit for specific performance---Plaint was rejected under O. II, R. 2, C.P.C.---Validity---Situation which existed at the time of filing of earlier suit was same when subsequent suit was filed---Plaintiff was not entitled to sue afterwards with regard to alleged claim and plaint was rejected in accordance with law---When title of vendor continued to be imperfect then enforcement of agreement could not be claimed under S.18 of Specific Relief Act, 1877---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Plaintiff had no right to file subsequent suit in the wake of continued imperfect title of defendant---Revision was dismissed, in circumstances.

Ismat Ara Begum through Legal heirs and another v. Malik Iftikharuddin and another 2002 YLR 2865; Shamoon and others v. Ahmad and others 1986 SCMR 888; Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Ziauddin Rafi v. Muhammad Khan and others PLD 1962 W.P. 321; Sayyed Ghulam Muhammad Shah v. Sayyed Fateh Muhammad Shah PLD 1955 FC 1; Muhammad Aslam and 4 others v. Ghulam Rasool and 6 others 2002 MLD 1860 and Hafeez Ahmad and others v. Civil Judge, Lahore and others 2012 SC 400 rel.

Syed Muhammad Ali Gilani for Petitioner.

Azhar Saleem Kamlana, A.A.G. for the Respondent.

YLR 2020 LAHORE HIGH COURT LAHORE 1432 #

2020 Y L R 1432

[Lahore]

Before Sardar Ahmed Naeem, J

MUHAMMAD ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 565 of 2011, heard on 23rd November, 2017.

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

----Ss. 376, 496-A, 420, 468 & 471---Rape, enticing or taking away or detaining with criminal intent a woman, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses--- Scope--- Accused were charged for abducting the sister of complainant for the purpose of committing zina with her and also getting her thumb impression on different papers---Motive behind the occurrence was that the complainant forbade the accused persons not to move in front of his house---Record showed that all the accused were allegedly armed with weapons at the time of abduction and raised lalkara that whosoever would come to rescue the victim would be done to death---Allegedly, the accused were given chase by witness, given up, on his motorbike for about two hours---Said witness was educated/literate and it was in the evidence that the accused emerged at the crime scene on a car and two motorbikes but none of the witnesses including the victim mentioned the numbers of those vehicles---Complainant, admittedly, was not the eye-witness and he was told about the occurrence by two witnesses---Record transpired that the conduct of said witnesses at the crime scene was also improbable/unnatural--- Appellant though had taken the plea of contracting marriage with the victim, disbelieved by the trial court but the victim had not denied the filing of the private complaint before the Illaqa Magistrate against her parents for causing criminal intimidation---Statement of victim recorded by the Illaqa Magistrate was also available on the file, however, she stated that her thumb impression on those documents were result of duress/coercion---Apart from the victim there was no eye-witness of the occurrence---Undoubtedly, conviction could be awarded on the basis of sole testimony of the victim if it inspired confidence, rung true and corroborated by other pieces of evidence which was not forthcoming in the present case---Admittedly, the co-accused had been acquitted by the Trial Court on the same set of evidence and accused was, thus, also to be treated alike as no corroboration was forthcoming on record---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 376, 496-A, 420, 468 & 471---Rape, enticing or taking away or detaining with criminal intent a woman, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged for abducting the sister of complainant for the purpose of committing zina with her and also getting her thumb impression on different papers---Victim was allegedly abducted by the accused persons and lifted/shifted from one place to the other but all of them were declared innocent during the investigation except the present accused---Male co-accused were not medically examined for potency test---Victim levelled the allegation of committing gang rape against the male members of the accused's family but no cross matching of the semen was conducted and available on the file to determine the charge or to saddle the accused with their responsibilities of committing the crime---Admittedly, the victim was medically examined after more than two months of the occurrence---Medical Officer observed no mark of violence on any part of the body of victim and also observed old torn and healed hymen which admitted two fingers easily---In her cross-examination, Medical officer admitted that the victim was habitual prior to her examination and she (doctor) also had not ruled out the possibility that the victim was consenting party---No report of the semen grouping was procured by the prosecution or produced during trial which was valid piece of evidence in such like cases---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

The State and others v. Abdul Khaliq PLD 2011 SC 554 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt could be extended on the basis of single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused not as a matter of grace/concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Haider Bakhsh and Muhammad Wasif Bhatti for Appellant.

Saqib Jillani, Defence Counsel at State expense.

Azhar Hussain Malik, Additional Prosecutor for the State.

Complainant in person.

YLR 2020 LAHORE HIGH COURT LAHORE 1437 #

2020 Y L R 1437

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

RUSTAM ALI and others---Petitioners

Versus

GHULAM WARIS and others---Respondents

Civil Revision No. 525 of 2009, decided on 12th July, 2019.

Partition Act (IV of 1893)---

----Ss. 4, 2 & 3---Suit for possession through partition---Preliminary decree---Sale of suit property---Word "request" in S.3, Partition Act, 1893---Scope---Trial Court passed final decree in the terms that subject to payment of share of defendants the plaintiffs would be owner of suit property---Validity---Court had jurisdiction to decide whether suit property was partitionable or not---If suit property was not divisible due to its nature and sale proceed was more beneficial, then Court might pass order for sale of suit property and distribution of sale proceeds amongst the shareholders---"Request" for sale of suit property might be written or verbal---Where preliminary decree had been passed then S.2 of Partition Act, 1893, was not applicable---Mere non-filing of written application for sale of suit property would not defeat the right of any of the parties to purchase the same---Possession of suit property was with the defendants who had 5/6 shares as compared to 1/6 of the plaintiffs in the suit land---Share of defendants was much bigger than that of plaintiffs in addition to the fact they had possession of suit property---Defendants were to be given opportunity to purchase the minor share of plaintiffs in the suit property, in circumstances---No illegality had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Messrs Conforce Ltd. v. Messrs Rafique Industries Ltd. PLD 1989 SC 136 and Sheikh Iftikhar Ahmed and another v. Dr. Muhammad Ilyas 2003 MLD 338 ref.

Fiurdous Begum's case 2008 CLC 248; Badri Narain Prasad Chaoudhary and others v. Nil Ratan Sarkar AIR 1978 SC 845 and Kalyan Kumar Basak v. Salil Kumar Basak and others AIR 1989 Cal. 159 rel.

Ch. Imran Hassan Ali for Petitioners.

Muhammad Ilyas Sheikh for Respondents Nos. 1 to 3.

Barrister Talha Ilyas Sheikh, Ch. Mazhar Hussain Minhas, Taimoor Malik and Mst. Farhat Majeed Chaudhry for L.Rs. of Respondent No. 4.

YLR 2020 LAHORE HIGH COURT LAHORE 1509 #

2020 Y L R 1509

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

NAZEER AHMAD and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 323 of 2016/BWP, heard on 14th January, 2020.

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

----Ss. 452, 337-A(i), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Criminal Procedure Code (V of 1898), S. 161---House-trespass after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah, hashimah, rioting, armed with deadly weapon, common object---Appreciation of evidence---Benefit of doubt--- Dishonest improvements---Delayed statement--- Recovery of commonplace articles---Acquittal of co-accused having similar role---Scope---Prosecution case was that the complainant party was present in their house when the accused party trespassed into their house and attacked them---Complainant had deviated from her cross-version and had introduced new facts in her examination-in-chief---One of the eye-witnesses had stated that she had joined investigation after two/three months of the incident---Statement of another eye-witness under S.161, Cr.P.C. was recorded after four/five days of the incident---Sotas allegedly recovered from the accused were commonplace articles and were not blood-stained--- Complainant had nominated nine persons in the cross-version but the trial court had acquitted five of them on the same evidence on which it had convicted the accused persons---Trial court could not have done so as there was no independent corroboration---Prosecution had failed to prove the charge against the accused beyond doubt---Appeal was allowed.

Irfan Ali v. The State 2015 SCMR 840; Shahbaz v. The State 2016 SCMR 1763 and Muhammad Asif v. The State 2017 SCMR 486 ref.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Munawar Ali v. The State PLD 1993 SC 251 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----S. 161---Examination of witnesses by police---Delayed statement---Scope---Delay in recording statement under S.161, Cr.P.C. impinges on the credibility of the witness.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 ref.

----Witness---Injured witness---Scope---Injuries on a prosecution witness only indicate his presence at the spot but what he deposes cannot be accepted as gospel truth---Testimony of such witness must be evaluated on its own merits in accordance with the principles of criminal jurisprudence.

Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Muhammad Hayat and another v. The State 1996 SCMR 1411; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Amin Ali and another v. The State 2011 SCMR 323; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Atta Ullah and 3 others v. The State 2016 YLR 2148 ref.

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

----S. 302--- Qatl-i-amd--- Medical evidence---Scope--- Medical evidence is confirmatory piece of evidence and cannot be a substitute for the ocular account---Medical evidence can only furnish details about the seats of injuries, their duration and the weapon used in the commission of offence but cannot identify the culprit.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

Muhammad Ashfaq Gujjar for Appellants.

Asghar Ali Gill, Deputy Prosecutor General for the State.

Syed Zeeshan Haider, assisted by Zafar Iqbal Sheikh for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1522 #

2020 Y L R 1522

[Lahore]

Before Shehram Sarwar Ch., J

ALI RAZA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 142-J and Criminal Revision No.404 of 2011, heard on 14th January, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-natural conduct---Withholding best evidence---Scope---Accused was alleged to have murdered the deceased by inflicting dagger blow---Presence of witnesses on the spot was doubtful because had they been present on the spot then they would have tried to rescue the deceased or to catch the accused who, admittedly, was not armed with any firearm---Complainant stated that he, being a school teacher, had obtained short leave on the day of occurrence but he did not produce any application for short leave during the trial---Accused, according to the complainant, was not visible from the place where witnesses were sitting---Prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Motive, not proved---Scope---Accused was alleged to have murdered the deceased by inflicting dagger blow---Motive behind the occurrence as alleged in the FIR was that deceased used to restrain the accused from using drugs---No evidence qua motive part of incident was brought on record---Prosecution had failed to substantiate motive against the accused.

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Belated recovery---Scope---Accused was alleged to have murdered the deceased by inflicting dagger blow---Recovery of dagger at the instance of accused was immaterial because it was effected after about six months of the incident and it was not expected from the accused to keep such weapon because during such period he had ample time to destroy the weapon---Appeal against conviction was allowed, in circumstances.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 ref.

(d) 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, in normal course, would operate about his absence from the crime spot---Testimony of chance witness can be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.

Mst Shazia Parveen v. The State 2014 SCMR 1197 and Muhammad Rafique v. The State 2014 SCMR 1698 ref.

(e) Criminal trial---

----Duty of prosecution--- Scope---Prosecution has 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.

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 ref.

(f) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating doubt regarding the prosecution case is sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Saqib Jillani, Defence Counsel for Appellant.

Tariq Javed, Additional Prosecutor General for the State.

M. Qaisar Saleem Hashmi for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1533 #

2020 Y L R 1533

[Lahore]

Before Aalia Neelum, J

ABID HUSSAIN---Petitioner

Versus

RUKHSANA MUNIR and others---Respondents

Criminal Miscellaneous No. 998-H of 2015, decided on 22nd July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Custody of minors---Minors, foreign nationals---Foreign judgment---Scope---Petitioner filed petition under S.491, Cr.P.C. for issuance of an appropriate order with direction in the nature of habeas corpus---Contention of petitioner was that according to the parenting plan submitted by him and respondent in foreign court both parents would exercise joint parental authority over minors and the parents would consult each other when they planned any relocation of residence of the minors in custody of respondent---Matter of custody had already been decided by foreign courts and the minors were foreign nationals---Respondent had secretly, without consent and knowledge of the petitioner brought the minors to Pakistan---Petition was accepted and the custody of minors was handed over to the petitioner.

Muhammad Saqib Jillani for Petitioner.

Muhammad Akhlaq, DPG for the State.

Muhammad Sohail Bhatti for Respondent No.l.

YLR 2020 LAHORE HIGH COURT LAHORE 1544 #

2020 Y L R 1544

[Lahore]

Before Farooq Haider, J

MUHAMMAD JAHANZAIB and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 74873-B of 2019, decided on 22nd January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324, 337-F (v). 337-D, 336, 148 & 149---Attempt to commit qatl-i-amd, hurt, punishment for itlaf-i-salahiyyat-i-udv, rioting, unlawful assembly---Pre-arrest bail, confirmation of---Further inquiry---First Information Report was lodged with the delay of five days but neither fire arm injuries received by one of the accused persons had been got mentioned in it by the complainant nor police had mentioned the same in "Karwai Police" in the FIR---Co-accused, with the same allegation of "Lalkara"and ineffective firing, had already been allowed pre-arrest bail by High Court which had not been challenged before the Supreme Court---Case of the present accused persons needed further probe within meaning of S.497(2), Cr.P.C. and on the other hand mala fide on the part of prosecution could not outrightly be ruled out---Ad-interim pre-arrest bail already granted to accused persons was confirmed, in circumstances.

Zubair Afzal Rana along with Petitioners.

Syed Mumtaz Ali Shah Hamdani for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1553 #

2020 Y L R 1553

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

ABDUL GHAFFAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 68 of 2019, heard on 2nd December, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt--- Inimical witness--- Scope--- Accused was alleged to have been found in possession of 1540 grams of charas---Case of accused was that his sister-in-law had filed application under S.22-A, Cr.P.C. against the complainant---Complainant (police official) during its pendency had tried to compound the matter with his family but when they refused he raided his house and arrested him in the present case---Sister-in-law of accused had appeared before the Trial Court and had advanced the case of accused through production of documentary evidence---High Court held that the accused through oral and documentary evidence had proved that the complainant (police official) was inimical towards him and had a motive to falsely implicate him---Police officials were as good witnesses as any other witness from the general public but this did not mean that the court should accept their testimony as gospel truth without taking the defence plea into consideration---Prosecution had failed to prove the charge against the accused beyond doubt---Appeal was allowed, in circumstances.

Wazir Muhammad v. State 1992 SCMR 1134 and Ghaus Bakhsh v. State 2000 MLD 618 rel.

James Joseph for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1571 #

2020 Y L R 1571

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

Mian MUHAMMAD SHAHBAZ SHARIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 4052 of 2019, decided on 21st February, 2019.

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

----S. 497---Bail---Tentative assessment of evidence--- Scope--- Deeper appreciation of evidence cannot be undertaken at bail stage, but bail petition cannot be decided in vacuum and tentative assessment of evidence/ documents is permissible.

Muhammad Hanif v. Manzoor and others 1982 SCMR 153 and Adrees Ahmad and others v. Zafar Ali and another 2010 SCMR 64 ref.

Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

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

----S. 9(b)---Constitution of Pakistan, Arts. 199 & 184(3)---Bail, grant of---Jurisdiction of High Courts and the Supreme Court---Scope---Bail can be granted to an accused in a suitable case by the Supreme Court and the High Courts despite the bar contained under S. 9(b), National Accountability Ordinance, 1999.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Haji Ghulam Ali v. The State through A.G., N.W.F.P. Peshawar and another 2003 SCMR 597 and Himesh Khan v. The National Accountability Bureau (NAB) Lahore and others 2015 SCMR 1092 ref.

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Bail, grant of---Discriminatory treatment---Mala fide---Further inquiry---Scope---Allegation against accused was that he, being Chief Minister, on a self-managed request of a Member of the Provincial Assembly (MPA) approved for construction of a sullage carrier under the garb of a public utility scheme, whereas, the actual motive behind its approval was to provide an effluent disposal mechanism to the mill owned by his son---Circle patwari had categorically mentioned that a pond measuring 86 kanals and 2 marlas was located in the revenue estate where the mill was situated---Validity---No complaint against the industrial effluent of the mill was ever filed against its management---Accused had no special need to construct a sullage carrier for the disposal of industrial effluent---Provincial Cabinet had also approved the said scheme and had released funds accordingly---Site plan of the scheme showed that the sullage was constructed for the benefit of public at large and not only for the benefit of the mill---Sullage carrier scheme was owned by the provincial government and the son of accused had been paying rent for its usage---Prosecution had not alleged that funds were not utilized on the scheme---Procedural irregularity, if any, in the exercise of jurisdiction did not amount to misuse of authority---Case of accused was one of further inquiry---Petition for grant of post-arrest bail was allowed, in circumstances.

The State v. Syed Muzafar Hussain Shah 1998 MLD 118 and Sarwar and others v. The State and others 2014 SCMR 1762 ref.

Tallat Ishaq v. National Account-ability Bureau through Chairman, and others PLD 2019 SC 112; C.P. No.1542 of 2016 dated 26.08.2016 and C.P. No.1618 of 2016 dated 03.08.2016 distinguished.

Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 and Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564 rel.

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

---S. 9(b)---Constitution of Pakistan, Art.199---Bail, grant of---Scope---Tentative assessment---Scope---Where a court, from tentative assessment of evidence, comes to the conclusion that sufficient material is not available on record to establish the charges of the prosecution or that the case is one of further inquiry, it can grant bail to the accused.

Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 and Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564 rel.

Muhammad Amjad Pervaiz, Azam Nazeer Tarar, Muhammad Aurangzeb and Muhammad Nawaz Ch. for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 1620 #

2020 Y L R 1620

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

IJAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 395 of 2014 and Murder Reference No. 141 of 2017, heard on 22nd October, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Interested and related witnesses---Chance witnesses---Scope---Non-presence of sufficient light to identify the assailants by witnesses---Effect---Prosecution case was that the accused and co-accused persons committed murder of nephew of complainant along with his wife by firing---Ocular account of the case had been furnished by two eye-witnesses including complainant-Said witnesses were related to each other---Relationship of said witnesses with the deceased was also on record---Admittedly, none of the said witnesses had their residence or their house at the place of occurrence, thus they were chance witnesses---No place had been pointed out in the site plan where, prior to the occurrence, eye-witnesses were present---Allegedly, eye-witnesses were present in the house of another person, but the house of said person had not been shown in the site plan and the said person did not appear before the Investigating Officer nor was produced by the witnesses to support the claim of prosecution that eye-witnesses were indeed present in the house of said person---In absence of physical proof of the reason for the presence of the witnesses at the crime scene, the same could not be relied upon---Prosecution had claimed that the occurrence had taken place during the night---Investigating Officer did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants---Prosecution had failed to establish the fact of such availability of light source and in absence of their ability to do so, the existence of such a light source could not presumed---Record showed that five co-accused had been acquitted on the same set of evidence---Statement of eye-witnesses showed that there was no difference in the role of the appellant and that of acquitted co-accused---No independent corroboration against the appellant was found and the case of appellant could not be distinguished from the case of acquitted co-accused---Dishonesty on part of the witnesses had vitiated the veracity of the case, thus the evidence of eye-witnesses had no worth and was to be rejected outrightly---No one out of the eye-witnesses had told the Investigating Officer about the occurrence---None of the witnesses ever proceeded to report the matter to the police---Such facts created doubt to the effect that the witnesses were not present at the place and time of occurrence and proved that the oral statement of complainant reduced into writing was just a compromised and fake document---Prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622; Nasrullah alias Nasro v. The State 2017 SCMR 724; Azhar Mehmood and others v. The State 2017 SCMR 135; Arshad Khan v. The State 2017 SCMR 564 and Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions and improvements in the statement of eye-witnesses---Effect---Prosecution case was that accused and co-accused persons committed murder of nephew of complainant and his wife by firing---Record showed that both the eye-witnesses made blatant and dishonest improvements to their earlier statements---Improvements were made with respect to role of the accused-appellant---Oral statement of the complainant revealed that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota---Eye-witness attributed the same role to appellant---Complainant while appearing before Trial Court stated that the appellant was armed with a repeater gun and fired at deceased twice hitting him on the right side of chest and on the right ribs---Eye-witness while appearing before Trial Court had stated that the appellant was armed with a repeater gun and fired at deceased twice hitting him on the right side of chest and on the right ribs---Both the said witnesses had improved upon their previous statements, hence their credit stood impeached and they could not be relied upon---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in conducting the post-mortem of deceased---Effect---Prosecution case was that the accused with co-accused persons committed murder of nephew of complainant along with his wife by firing---Record transpired that matter was reported to the police at 2.45 a.m. when the oral statement of complainant was reduced into writing---Post-mortem examination on the persons of deceased was conducted after a delay of about eight hours---Medical Officer, who conducted the post-mortem examination of deceased, opined about the probable duration of time between death and post-mortem as 8 to 12 hours---Lady Medical Officer, who conducted the post-mortem examination of lady deceased, opined about the probable duration of time between death and post-mortem as 9 to 10 hours---Such delay was reflective of absence of witnesses and the sole purpose of causing such delay was to procure the presence of witnesses and to further advance a false narrative to involve any person---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

(d) Administration of justice---

----Witness---Common set of witnesses---Scope---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.

(e) Criminal trial---

----Witness---Statement of witness---Scope---Once a witness was found to have lied about a material aspect of a case, it could not then be safely assumed that the said witness would declare the truth about any other aspect of the case.

PLD 2019 SC 527 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention---Appreciation of evidence---Non-association of private witnesses---Effect---Recovery of repeater gun 12-bore from the accused---Reliance---Scope---Prosecution case was that accused along with his co-accused persons committed murder of nephew of complainant along with his wife by firing---Recovery of the repeater gun 12-bore from the appellant could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said weapon from the appellant which was a clear violation of S.103, Cr.P.C.---Such recovery could not be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and was hence, hit by the exclusionary rule of evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Effect---Prosecution case was that the accused along with his co-accused persons committed murder of nephew of complainant along with his wife by firing---Motive of the occurrence, given in the oral statement of complainant, was that sister of appellant had contracted nikah with deceased without the consent of her family members and due to that grudge the accused persons had committed the murder of two persons---Record was silent as to why the appellant who allegedly was aggrieved of the actions of his sister proceeded to murder the wife of deceased---No further details of said motive were mentioned in the oral statement---Haunting silence was available with regard to the motive alleged---No independent witness was produced by the prosecution to prove the motive alleged---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Principle---One tainted piece of evidence could not corroborate another tainted piece of evidence.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(i) Criminal trial---

----Recovery---Motive---Scope---Motive and recovery were only corroborative pieces of evidence---If the ocular account was found to be unreliable then motive and recovery had no evidentiary value and lost their significance.

(j) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character could not recognize a culprit in case of an unobserved incidence.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---Benefit of single circumstance creating reasonable doubt would be extended to the accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Mudassar Altaf Quershi for the State.

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

Aamir Ali Safeer for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 1662 #

2020 Y L R 1662

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

MUHAMMAD IBRAHEEM and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 979 of 2017 and 874 of 2018, heard on 30th October, 2019.

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

----Ss. 324, 394, 411, 353, 186 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 22---Attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, act of terrorism--- Test identification parade--- Scope---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party assaulted on the complainant party/Police Officials, made firing upon them, due to which complainant sustained injuries on his body and accused persons also snatched an amount of Rs. one lac from the injured---Accused were identified in the test identification parade---Ocular account of the occurrence had been furnished by two witnesses including complainant/injured---Record showed that there was no denial to the fact that complainant/Head Constable received injuries, but fact remained that neither the names of the assailants were mentioned in the written application nor in the statements of the witnesses recorded under S.161, Cr.P.C.---Eye-witnesses joined the test identification parade held to establish the identity of the assailants---Injured witness and other eye-witness had admitted during their cross-examination that they did not mention any descriptive features through which the accused persons could be identified---Test identification parade, in circumstances, lost its authenticity and had no value in the eye of law---Circumstances established that prosecution had failed to prove its case against the accused without any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436 rel.

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

----Ss. 324, 394, 411, 353, 186 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 22---Attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Scope---In the present case, identification parade of two accused was conducted jointly---Both the accused were made to stand in front of each other along with the dummies at different serial numbers---Nothing was mentioned of the colour of skin of the other prisoners used as dummies---Judicial Magistrate, holding the test identification parade, failed to observe the description of complexions of their skins and weight of the dummies being used during the test identification parade, which was necessary to rule out any possibility of misidentification--- Report of identification parade showed that before conducting the identification parade the features of the unknown assailants were not in the knowledge of Judicial Magistrate and no observation had been made by him in that regard---Matching the description in the FIR was the starting point towards identification of the unknown accused---As to how the accused were hurled and lined-up for the identification parade without the Judicial Magistrate first matching the description given by eye-witnesses was not understandable---Selection of the suspects, without any correlation with description of the accused in the FIR, raised doubts and made the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Hakeem and others v. The State 2017 SCMR 1546; Kamal Din alias Kamala v. The State 2018 SCMR 577 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

----Ss. 324, 394, 411, 353, 186 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and cash from the accused persons---Reliance---Scope---Prosecution case was that the accused party assaulted on the complainant party/Police Officials, made firing upon them, due to which complainant sustained injuries on his body and accused persons also snatched an amount of Rs. one lac from the injured---In the present case, pistols were recovered from the possession of accused persons---No report of Forensic Science Laboratory was produced by the prosecution during the trial of the case---In the absence of said report, no reliance could be placed on the recovery of pistols from the accused-appellants---Police did not associate any residents of the locality in the investigation for the purpose of recoveries---Recoveries of amount of Rs.45000/- from accused and Rs. 45000/- from the co-accused did not offer any corroboration to the prosecution case as the said recoveries were again not witnessed by any person of the locality and were made in violation of the provisions of S.103, Cr.P.C., rendering the same inadmissible in evidence---Prosecution witnesses did not mention any specific numbers or markings on the currency notes in their statements before the police as well as the trial court so as to relate the recovered currency notes with the currency notes allegedly robbed by the accused persons at the time of occurrence---Investigating Officer did not prepare any memo of identification with respect to the said recovered currency notes so as to establish that they were indeed the same currency notes which were robbed on the day of occurrence---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

(d) Criminal trial---

----Recovery---Motive---Scope---If ocular account had been disbelieved, the evidence of motive and recovery would have no consequence.

(e) Criminal trial---

----Benefit of doubt---Principle--- If single circumstance creating reasonable doubt in the mind of a prudent person was available then its benefit was to be extended to the accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. the State 2009 SCMR 230 rel.

Muhammad Usman Shareef Khosa and Tahir Mahmood for Appellants.

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

YLR 2020 LAHORE HIGH COURT LAHORE 1711 #

2020 Y L R 1711

[Lahore (Multan Bench)]

Before Muhammad Ameer Bhatti and Atir Mahmood, JJ

QAMAR KHURSHID and others---Appellants

Versus

LAND ACQUISITION COLLECTOR-I and others---Respondents

R.F.A.s Nos. 208866 and 218784 of 2018, heard on 9th March, 2020.

Land Acquisition Act (I of 1894)---

----Ss. 18, 20 & 50(2)---Acquisition of land---Compensation, enhancement of---Non-joinder of necessary party---Landowners were not satisfied with the compensation determined by Land Acquisition Collector---Reference was made to Referee Court without impleading acquiring body as respondent to the proceedings---Referee Court partly accepted the Reference and compensation was enhanced to certain extent---Validity---Acquiring body, as contemplated in Ss. 20 & 50(2) of Land Acquisition Act, 1894, was necessary or proper party in the proceedings of the Reference filed by landowners for the purpose of determination of the compensation by Referee Court---By virtue of Ss. 20 & 50 of Land Acquisition Act, 1894, it was enjoined upon the Court not only to issue notice to acquiring body of land but also ensure its presence besides granting opportunity to lead evidence---Land acquiring body had all rights of a necessary parity to legal proceedings---High Court set aside the judgment and decree passed by Referee Court and the matter is remanded for decision afresh after impleading acquiring body party to the proceedings---Appeal was dismissed in circumstances.

Muhammad Zakria and 3 others v. Bashir Ahmad 2001 CLC 595 rel.

Syed Liaqat Ali Bukhari for Appellants.

Rai Sohail Saleem Khan and M. Habib Ch. for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 1813 #

2020 Y L R 1813

[Lahore]

Before Malik Shahzad Ahmad Khan, J

RAIYET ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1238 and Criminal Revision No. 723 of 2013, heard on 13th February, 2020.

(a) Criminal trial---

----Circumstantial evidence---Scope---Every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused---If any link in the chain is missing then its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife/sister of the complainant---Prosecution in order to prove its case produced two witnesses including complainant of circumstantial evidence---Admittedly both the said witnesses were not the eye-witnesses of the case---Said witnesses were also not the witnesses of the last seen evidence and their evidence was mainly based upon the suspicion against the accused, which was developed in the minds of said witnesses due to alleged false information given by witness to the complainant party regarding the cause of death of his wife/ deceased because of electric-shock and conduct of the appellant subsequent to the occurrence as appellant statedly fled away from the spot after the occurrence and did not report the matter to the police---Neither the cell phone set of accused was taken into possession by the Investigating Officer nor any data was collected by him, in order to establish that any wrong information was given by accused regarding the death of deceased to the complainant party---Said fact with regard to the cause of death of the deceased due to electric-shock through phone was not mentioned in the FIR or in the statement of witness recorded by the police under S.161, Cr.P.C.---Dead body of the deceased was recovered from the house of the accused and as per prosecution case, accused did not inform the police regarding the death of his wife/deceased and he statedly fled away after the occurrence---Said facts were not sufficient to convict and sentence the accused under the capital charge---Appeal against conviction was allowed, in circumstances.

----Proof---Suspicion---Scope---Suspicion howsoever strong could not take place of conclusive proof, which was required for convicting and awarding sentence to an accused for a capital charge.

Muhammad Jamshaid and another v. The State and others 2016 SCMR 1019 and Vijant Kumar and 4 others v. State through Chief Ehtesab Commissioner, Islamabad and others PLD 2003 SC 56 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved--- Effect--- Accused was charged for committing murder of his wife/sister of the complainant---Motive behind occurrence was that only a female child was born from the wedlock of accused and deceased during the subsistence of their marriage for fourteen years, due to which the accused was unhappy with his wife/deceased---Prosecution witnesses did not mention the said motive while appearing in the witness box---Only one witness had stated in his examination-in-chief that the attitude of accused was not cordial towards deceased---Said witness had not given any reason, whatsoever, for the said attitude of the accused with the deceased---Said witness conceded during his cross-examination that accused never gave beating to his aunt/deceased in his presence---Admittedly deceased was living along with her minor daughter in the house of accused till her death---No family or civil suit having been filed by deceased against accused was produced in the evidence to establish that there was any matrimonial dispute between the parties---Both the prosecution witnesses never stated that deceased came to the house of her parents due to any dispute with the accused---Motive as alleged by the prosecution had not been proved in the present case.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of dupatta on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of his wife/sister of the complainant---Allegedly, dupatta was used by the accused for strangulating the neck of the deceased and the same was recovered on the pointation of the accused---In order to prove the recovery of dupatta on the pointation of accused, the prosecution had produced recovery witness in the witness box---Statement of said witness showed that he was even unable to describe the place from where the recovery of dupatta was effected---Said witness was also unable to describe the room wherefrom the said dupatta was recovered, which showed that he never visited the place of recovery, therefore, he was unable to describe the same---Recovery witness had also admitted that dupatta was of common pattern, which was easily available in the market---Witness further conceded that dupatta was neither stained with mud, blood or soap and as such no incriminating material was available on dupatta--- Said recovery was inconsequential for the prosecution, in circumstances.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of dead body from the house of accused---Effect---Accused was charged for committing murder of his wife/sister of the complainant---In absence of other reliable and cogent evidence, mere recovery of dead body of the deceased from the house of accused by itself was not sufficient to convict and sentence him under the capital charge.

Nasrullah alias Nasro v. The State 2017 SCMR 724; Nazir Ahmed v. The Stale 2018 SCMR 787; Asad Khan v. The State PLD 2017 SC 681; Nazeer Ahmed v. The State 2016 SCMR 1628; Muhammad Jamshaid and another v. The State and others 2016 SCMR 1019 and Abdul Majeed v. The State 2011 SCMR 941 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular evidence---Contradiction---Accused was charged for committing murder of his wife/sister of the complainant--- Complainant party received information regarding the death of deceased on 17.09.2010 at 3.30 a.m.---Statement of Lady Medical Officer showed that on 17.09.2010 at 3.30 p.m. the post-mortem examination of the dead body of the deceased was conducted---Lady Medical Officer stated that according to her opinion, the probable time that elapsed between the injury and death was immediate, whereas the probable time that elapsed between the death and post-mortem examination was 7 to 8 hours---As postmortem examination was conducted on 17.09.2010 at 3.30 p.m. therefore, according to the evidence of Lady Medical Officer, deceased, would have died approximately between 7.00 a.m. to 8.00 am on 17.09.2010---Even complainant and witness while appearing in the witness box had categorically stated that they heard the news regarding the death of deceased at about 3.30 a.m. (night)---Time of death of deceased given by the prosecution witnesses did not coincide with the time of death of deceased as given by the Lady Medical Officer and as such there was conflict between the ocular account and the medical evidence---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence was a supporting type of evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it does not identify the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.39---Qatl-i-amd---Appreciation of evidence--- Extra-judicial confession before police---Scope---Such confession was inadmissible in evidence.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---Single circumstance which creats doubt regarding the prosecution case, will be sufficient to give benefit of doubt to the accused. [p. 1826] P

Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Kashif Saeed Bhatti for Appellant.

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

Zafar Masud and Ch. Abdul Hameed Gujjar for the Complainant (as well as Petitioner in Crl. Revision No.723 of 2013).

YLR 2020 LAHORE HIGH COURT LAHORE 1838 #

2020 Y L R 1838

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

MUKHTIAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 44 of 2019, heard on 17th December, 2019.

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

----S. 9(c)---Possession of narcotics---Contradictory statements of witnesses---Safe custody---Scope---Accused was apprehended with 6.100 kilograms of opium---Complainant deposed that when Investigating Officer came to the place of recovery he handed over the case property to him---Investigating Officer deposed that he had returned the case property to the complainant after checking and weighing the same and that complainant handed over the case property to the Moharrar---Moharrar deposed that SHO (Station House Officer) had handed over the case property to him and that afterwards he handed over the same to another Moharrar---Second Moharrar deposed that the ex-Moharrar had handed over the case property to him on the next day---Such contradictions not only had a bearing on the credibility of the witnesses but also showed that the prosecution could not maintain safe custody of the case property from the place of recovery to the Laboratory---Positive report of Forensic Laboratory was of no legal consequence, in circumstances---Appeal against conviction was allowed, in circumstances.

Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

The State through Regional Director ANF v. Imam Baldish and others 2018 SCMR 2039 rel.

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

----S. 9---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Recovery of narcotics---Withholding eye-witness of recovery---Effect---Prosecution had not produced the constable who was an eye-witness of the recovery and had taken the complaint to the police station for registration of FIR; High Court held that adverse inference could be drawn against the prosecution for withholding such a witness.

Minhaj Khan v. The State 2019 SCMR 326 ref.

Humera Naheed Khand for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1854 #

2020 Y L R 1854

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD IMRAN AHMED---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary School Education and others---Respondents

Review Petition No.42 of 2017 in Writ Petition No. 5059 of 2010, decided on 10th February, 2020.

Civil Procedure Code (V of 1908)---

----S. 114---Limitation Act (IX of 1908), S. 5 & Sched.---Review---Limitation---Condonation of delay---Exclusion of time lapsed in proceedings of intra-court appeal---Applicant sought review of order of High Court passed in Constitutional petition, and sought condonation of delay for filing the same, on ground that applicant had filed intra-court appeal against said order and subsequently withdrew the same in order to file present application for review---Contention of petitioner was that time consumed in pendency of said intra-court appeal should be excluded in counting time for filing of review---Validity---Applicant had himself chosen forum of intra-court appeal and his subsequent withdrawal of same without specifically seeking permission for condonation of time consumed in such proceedings and then adopting another forum by filing application for review against same order, was not a practice recognized in law---Fault in approaching wrong forum for redressal of grievance would not be a reasonable cause to condone delay---Review being barred by time, was rejected in circumstances.

Ahmad Jan and others v. Qazi Azizul Haq and others 2009 SCMR 1022; Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 and 2002 PLC (C.S.) 960 rel.

Rana Rashid Akram Khan for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 1859 #

2020 Y L R 1859

[Lahore]

Before Shams Mehmood Mirza, J

ABID ALI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 38958 of 2019, decided on 7th November, 2019.

Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(f)--- Petitioners under constitutional jurisdiction challenged a notification issued by the Administrator Municipal Corporation whereby the orders for holding of weekly sasta bazar in different areas were withdrawn---Plea of Administrator was that majority of licenses obtained by the petitioners were illegally granted by the Chairman/Vice-Chairman of defunct union council in violation of S.27(2)(f) of the Punjab Local Government Act, 2013; that a number of petitioners were not the owners of land on which the weekly sasta bazar was being held and that in some cases the petitioners were operating the bazars outside the area mentioned in the licenses thereby causing traffic hazards and congestion on the road and that inquiries against the petitioners were pending adjudication---Validity---Inquiry proceedings had not been concluded and the allegations had not been proved so far---Administrator, Municipal Corporation had no lawful right under the law to suspend the operation of sasta bazars---Penal action against the petitioners could only follow if the allegations against them were proved---High Court observed that till such time the pending inquiries culminated into a binding conclusion against the petitioners holding them to be in violation of the terms of the license or the relevant by-laws, the Administrator could not have issued the impugned notification---Constitutional petitions were allowed and the notification was set aside being issued without lawful authority and of no legal effect.

Ch. Zulfiqar Ali, Rana Moin Waheed, Ghulam Mujtaba, Rehan Ahmad Mann, Kashif Mehmood Chaudhary, Asghar Ali Gill, Ch. Ahmad Khan Gondal, Syed Mumtaz Ali Shah Hamdani, Muhammad Shoaib Khalid, Rai Khurum Mehmood, Muhammad Safdar Shaheen Pirzada, Malik Muhammad Ashfaq, Muhammad Humaun Chaudhary for Petitioners.

YLR 2020 LAHORE HIGH COURT LAHORE 1875 #

2020 Y L R 1875

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUBARAK MAI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and others---Respondents

Writ Petition No. 14609 of 2019, decided on 30th September, 2019.

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

----O. XXXIX, Rr. 1 & 2---Suit for declaration---Interim injunction, refusal of---Prima facie case---Scope---Petitioners filed suit for declaration claiming therein that their father was in possession of the suit property as tenant who was to be allotted the suit property as per Government Scheme but instead the same was allotted to their grand-father, therefore, prayed for setting aside of allotment order and issuance of new allotment order in favour of their father---Application for interim injunction seeking direction against the respondents not to interfere in the possession of the petitioners was concurrently dismissed---Validity---Property was joint between the parties and was originally allotted to predecessor-in-interest of both the parties i.e. their grand-father---Petitioners could not show any document in their favour to establish beyond doubt their version relating to the claim that property was required to be allotted to their father instead of their grand-father---Claim of petitioners was required to be proved through recording of evidence---Where evidence was required to be recorded to substantiate the claim, prima facie case could not be presumed---Petitioners had failed to prove that balance of convenience was in their favour and as to how they would suffer irreparable loss if stay was not granted in their favour, especially when the suit property was owned jointly by the parties and not exclusively owned by the petitioners---Ingredients for grant of temporary injunction were missing---Constitutional petition was dismissed.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Prima facie case---Scope---Where evidence is required to be recorded to substantiate the claim, prima facie case cannot be presumed.

YLR 2020 LAHORE HIGH COURT LAHORE 1884 #

2020 Y L R 1884

[Lahore]

Before Mujahid Mustaqeem Ahmed, J

SHUMAILA AMJAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/ EX-OFFICIO JUSTICE OF PEACE, LAHORE and 4 others---Respondents

Writ Petition No. 3527 of 2020, decided on 23rd January, 2020.

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

----S. 22-A---Penal Code (XLV of 1860), Ss. 405 & 406---Powers of Ex-officio Justice of Peace---Criminal breach of trust---Scope---Petitioner assailed the order passed by Ex-officio Justice of Peace whereby he had declined to pass the desired direction for registration of criminal case---Ex-officio Justice of Peace had sought report from the police and, after perusal of report so made by senior police officer, came to conclusion that the 'entrustment of property' was not proved as the amount was given to the proposed accused for running business---Amount was handed over by the petitioner to the proposed accused for investment in the business and not as entrustment---Ex-officio Justice of Peace had rightly exercised the jurisdiction while dismissing the application of the petitioner---Constitutional petition was dismissed.

Hashmat Ullah v. The State and others 2019 SCMR 1730 ref.

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

----S. 22-A---Powers of Ex-officio Justice of Peace--- Discretionary--- Scope---Powers under S.22-A(6), Cr.P.C. are discretionary and not mandatory in nature---If in estimation of Ex-officio Justice of Peace, cognizable offence has been committed, he may issue direction for registration of a criminal case but he cannot be made bound to pass such direction---Law expects him to apply judicious conscious while passing such order and not to pass stereo style order in haste.

Muhammad Sohail Dar for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 1921 #

2020 Y L R 1921

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

ABID HUSSAIN---Petitioner

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No. 2622 of 2019, decided on 29th October, 2019.

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

----S.10---Horse Breeding Scheme---Tenancy rights, grant of---Non-speaking order---Effect---District Collector granted tenancy rights in favour of petitioner after inviting applications but Member Board of Revenue remanded the matter for grant of tenancy rights through open auction---Contention of petitioner was that impugned order was without reasons---Validity---Courts below had recorded concurrent findings with detailed reasoning---Member Board of Revenue had not recorded reasons while passing the impugned order---Appellate or Revisional forum was to consider the reasons recorded by the forum below and then deliver a judgment by supporting reasons---Impugned order was non-speaking which could not be deemed as lawful or a result of proper exercise of jurisdiction---Matter was remanded by the High Court to the Member Board of Revenue with the direction to attend reasons prevailed upon the forum below for upholding the claim of petitioner and examine policy or rules for lease of property---Impugned order passed by the Member Board of Revenue was set aside with the direction to decide the matter in accordance with law---Constitutional petition was allowed, in circumstances.

Syed Muhammad Ali Gillani for Petitioner.

Mian Asghar Ali and Muhammad Shahid Riaz, A.A.G. for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 1930 #

2020 Y L R 1930

[Lahore]

Before Ch. Abdul Aziz, J

MUHAMMAD ARIF and another---Petitioners

Versus

The STATE and another ---Respondents

Criminal Miscellaneous No. 67701-B of 2019, decided on 28th January, 2020.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v), 337-L(2), 148 & 149---Hashimah, punishment for other hurt, rioting, armed with deadly weapon, common object---Pre-arrest bail, refusal of---Recovery of incriminating articles---Hindrance in the process of investigation---Scope---Accused persons were charged for inflicting club blows on the person of injured---Injured was medically examined on the very night and the doctor had observed six injuries on his person---FIR, statements of witnesses recorded under S. 161, Cr.P.C., medical evidence and other material collected during investigation, prima facie, indicated the involvement of accused persons in the commission of crime---Petitioners were seeking extra-ordinary concession of pre-arrest bail but recovery of clubs was yet to be effected by the police and in such case, grant of bail was likely to hamper the process of investigation---Relief of pre-arrest bail was meant to be exercised in a case the registration of which was tainted with mala fide but nothing as such was pleaded by the accused persons---Petition for grant of pre-arrest bail was dismissed, in circumstances.

Sarwar Sultan v. The State and another PLD 1994 SC 133 rel.

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

----S.497---Bail---Tentative assessment---Material to be considered---Scope---Court, at bail stage, is not required to dive deep into the merits of the case and instead has to make a tentative assessment---Material on the basis of which such an assessment is to be made comprises upon FIR, statements of witnesses recorded under S.161, Cr.P.C., the medical evidence and other material collected during investigation.

----S. 498---Pre-arrest bail---Registration of case with mala fide intention---Scope---Relief of pre-arrest bail is meant to be exercised in a case the registration of which is tainted with mala fide---Court, in addition, is also required to see that whether the accused is successful in making out a case for bail on merits or not.

M. Imran Moeen for Petitioners.

Ch. M. Mustafa, D.P.G. with M. Ilyas A.S.I. for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 1962 #

2020 Y L R 1962

[Lahore (Multan Bench]

Before Rasaal Hasan Syed, J

MUHAMMAD SIDDIQUE through L.Rs.---Petitioner

Versus

FAWAD NAWAZ and 3 others---Respondents

Civil Revision No. 1393 of 2018, decided on 16th September, 2019.

Civil Procedure Code (V of 1908)--

----S. 47---Limitation Act (IX of 1908), Art. 181---Suit for specific performance of contract---Appeal---Withdrawal of---Execution petition---Objection petition---Limitation---Commencement of---Suit was decreed against which appeal was filed which was withdrawn---Execution petition was moved wherein an objection petition was filed on the ground of limitation---Executing Court dismissed objection petition but Appellate Court accepted the same---Validity---Appeal was filed but operation of judgment of Court below was not suspended---Limitation would commence from the date of decree unless it was suspended or its execution was kept in abeyance---Decree-holder could file first execution petition within three years from the date of decree---Period of three years had expired---Present execution petition had been filed after nine years from the date of passing of the decree which was barred by time---Appeal had been allowed to be withdrawn without any modification or alteration in the judgment passed by the Court below---Judgment of Court below would not merge into the order of Appellate Court, in circumstances---Decree-holder should have filed execution petition within three years from the date of decree of Court below and not from the order of Appellate Court---Appellate Court had rightly set aside the order of Executing Court and dismissed the execution petition being time barred---No error of law or mis-reading of record had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in, circumstances.

Ghulam Mehdi and 4 others v. Mst. Bhaghan and 4 others PLD 1989 Lah. 311; Bakhtiar Ahmad v. Mst. Shamim Ahktar and others 2013 SCMR 5; Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 and Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060 rel.

Ch. Abdul Ghani and Mian Ayyub for Petitioners.

YLR 2020 LAHORE HIGH COURT LAHORE 1970 #

2020 Y L R 1970

[Lahore (Multan Bench)]

Before Malik Shahzad Ahmad Khan and Sadiq Mahmud Khurram, JJ

MUHAMMAD SHAHBAZ alias CHAMMA TINDA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 476-J of 2018 and C.M. No. 1 of 2020, decided on 3rd February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Suspension of sentence pending appeal---Bail, grant of---Violation of policy of awarding sentence to accused---Scope---Petitioner sought suspension of his sentence and release on bail during pendency of appeal---Petitioner was behind the bars since the date of his arrest and as such he had already served a period of two years and ten months out of his sentence of six years---No prospect of decision of the main appeal in the near future existed---Possibility could not be ruled out that the petitioner might serve out his entire sentence before the decision of his main appeal on merits and in such eventuality, purpose of filing of appeal would become infructuous---Sentence awarded by the Trial Court was against the policy of awarding sentence, according to which in case of recovery of charas exceeding 1 kg and upto 2 kg, an accused had to be convicted and sentenced to four years and six months rigorous imprisonment---Quantum of sentence awarded by Trial Court required serious re-consideration---Petition was allowed.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Prince Rehan Iftikhar Sheikh for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 2010 #

2020 Y L R 2010

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

NISHAT AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 134 of 2019, decided on 25th September, 2019.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---250 grams of Charas was recovered from the accused/appellant when police apprehended him on suspicion---Record showed that prosecution witness did not proceed to police station after the arrest of appellant for getting the FIR recorded rather deputed Pakistan Qaumi Razaqar (PQR) to get FIR registered---Said PQR was neither cited as a witness nor his statement under S. 161, Cr.P.C., was recorded by the investigating officer nor he was examined during trial of the case though he was also an eye-witness of the occurrence---Such aspect of the case showed that prosecution case was a figment of imagination of the complainant and the witnesses of the case---Possibility could not safely be ruled out of consideration regarding accused having been falsely implicated in the case, thus he was extended the benefit of doubt---Appeal against conviction was allowed, in circumstances.

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

---Ss. 9(b) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of result of test or analysis---Failure to mention full protocols in test report---Effect---250 grams of Charas was recovered from the accused when police apprehended him on suspicion---Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, made it imperative on an analyst to separately mention the result of each sample analyzed with full protocols applied thereon along with other details in the certificate issued for test/analysis by Laboratory---Chemical analyst is to perform confirmatory test not presumptive test to identify the narcotic substance---Record showed that report of Forensic Science Agency was not in line with the principles enunciated by the Supreme Court in the case reported as 2018 SCMR 2039---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

----Burden of proof---Benefit of doubt---Scope---Prosecution is bound to discharge the initial onus of proof---Even the slightest doubt results in failure of the case of the prosecution---Benefit of doubt is not to be granted as a concession but as of right.

Ch. Umar Hayat and Shafqat Raza Thaheem for Appellant.

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

YLR 2020 LAHORE HIGH COURT LAHORE 2018 #

2020 Y L R 2018

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Sadiq Mahmud Khurram, JJ

MUHAMMAD ZAHID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 267-J and Murder Reference No. 38 of 2016/BWP, heard on 9th March, 2020.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 30 & 43---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Admission---Consideration of proved confession affecting person making it---Statement of accused---Appreciation of evidence---Benefit of doubt---Un-witnessed incident---Failure to prove un-natural death---Effect---Accused was alleged to have strangulated his mother for her failure to pay the amount demanded by accused---Occurrence was un-witnessed as nobody had seen the accused while pressing the neck of the deceased---No marks of violence were noted by the medical officer on any part of the body of the deceased---Large number of symptoms which ordinarily pointed to asphyxia by throttling were missing such as tongue of victim being swollen, bitten by teeth, its protrusion and bleeding from ears due to rupture of blood vessels of tympanum---No ante-mortem injury was seen on hyoid bone of the deceased---Prosecution had failed to prove un-natural death of the deceased---Statement of accused recorded under S.342, Cr.P.C. could be treated as an admission and on the basis of admission, alone, accused person could not be awarded capital punishment because admission was only a relevant fact and not a proof by itself---Voluntary and true confession alone was a proof against the maker---Prosecution had not been able to prove the case against the accused beyond shadow of doubt---Appeal against conviction was accepted, in circumstances.

Muhammad Ismail v. The State 2017 SCMR 713 ref.

(b) Medical jurisprudence---

----Asphyxia---Definition.

Asphyxia or asphyxiation is a condition of severely deficient supply of oxygen to the body that arises from abnormal breathing. Asphyxia is something due to which many people die, and it is something the act of suffocation or smothering a victim until he can no longer breathe. Asphyxiation is defined as hypoxia/anoxia that is caused when respiratory function is hampered by interference with the mechanics of breathing.

----Appearances of deceased due to Asphyxia explained.

The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases they may be closed. The conjunctivae are congested, and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam, escapes from the mouth and nostrils, and sometimes pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, feces and seminal fluid.

(d) Medical jurisprudence---

----"Strangulation"---Definition.

Strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by the pressure of the fingers and palms upon the throat. Strangulation may also be brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substance. Strangulation is defined as form of asphyxia (lack of oxygen) characterized by closure of blood vessels/or air passages of neck as a result of external pressure on the neck. Manual Strangulation (throttling) is usually done with the hands.

(e) Medical jurisprudence---

----Neck anatomy, explained.

A rudimentary knowledge of neck anatomy is critical in order to understand adequately the clinical features of strangled victim.

The hyoid bone, a small horseshoe shaped bone in the neck, helps to support the tongue.

The larynx, made up of cartilage, not bone, consists of two parts: the thyroid cartilage and the tracheal rings.

Carotids are the major vessels that transport oxygenated blood from the heart and lungs to the brain. These are the arteries at the side of the neck that persons administering CPR (cardio-pulmonary resuscitation) check for pulses.

Jugular veins are the major vessels that transport deoxygenated blood from the brain back to the heart.

The general clinical sequence of a victim who is being strangled is one of severe pain followed by unconsciousness, followed by brain death. The victim will lose consciousness by any one or all of the followings:-

(i) Blocking of the carotid arteries (depriving the brain of oxygen);

(ii) Blocking of the jugular veins (preventing deoxygenated blood from exiting the brain;) and

(iii) Closing off the airway, causing the victim to be unable to breathe.

Probably one or more causes may operate during strangulation. A pale face would indicate a rapid death from reflex cardiae arrest, while a cyanosed face with petchiae would suggest a delayed death.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Examination of accused--- Scope--- Where the prosecution fails to prove its case against accused then the accused is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased.

Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139 ref.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Sh. Zafar Iqbal and Hassan Mahmood Chaudhry for Appellant.

Muhammad Ismail Makki for the Complainant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Miss Mehwish Mahmood, Research Officer.

YLR 2020 LAHORE HIGH COURT LAHORE 2028 #

2020 Y L R 2028

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

LIAQAT ALI---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 32045 of 2016, heard on 6th May, 2019.

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

----S. 10---Issuance of statements of conditions of tenancies---Scope---Village site meant for 'Patwar Khana' was under the occupation of respondents who made two fold application before the Collector for change of category as well as its allotment---Reports from the Field Staff proved long-standing possession of respondents on the said land---Collector accorded first request, latterly the land was also allotted to them---Respondents approached the concerned Authority for conferment of proprietary rights, which remanded the matter---Respondents preferred appeal, which was allowed by Additional Commissioner and despite being assailed by the petitioner before the Board of Revenue, same was maintained--- Validity--- Collector was competent to change the category of village site and was not bound to require prior approval of the Board of Revenue---Revenue Field Staff for whom the plot in dispute was reserved at the most could be the aggrieved party, but petitioner lacked locus standi to make any claim over the disputed plot--- Impugned orders were neither coram non judice nor ultra vires to call for interference by High Court in exercise of its constitutional jurisdiction---Constitutional petition was dismissed.

Naseer Ahmad v. Member, Board of Revenue and others 1985 MLD 1277 and Sardar Muhammad and another v. Akram and others 2002 SCMR 807 ref.

Mian Shah Abbas for Petitioner.

Rana Shamshad Khan, Addl. A.G. for Respondents Nos. 10 to 12.

Ch. Muhammad Mustansar Kaleem and Atif Mohtashim Khan for Respondents Nos.2 to 9.

YLR 2020 LAHORE HIGH COURT LAHORE 2062 #

2020 Y L R 2062

[Lahore]

Before Rasaal Hasan Syed, J

Mst. SHAHEEN BIBI---Petitioner

Versus

PERVAIZ ASLAM and others---Respondents

Writ Petition No. 16408 of 2020, decided on 17th June, 2020.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 5---Determination of question as to legal representative---Scope---Petitioner assailed orders passed by courts below whereby her name was excluded from the list of legal heirs on the ground that she had been divorced by the deceased---Validity---Courts below had proceeded on mere assumptions as to the disputed divorce deed and had put the petitioner under an onus to seek a declaration from the court of law; little appreciating a serious factual controversy---Petitioner had specifically denied the genuineness of the document, respondents were banking upon the said document and were under an obligation to prove the same to be genuine and it was only after the proof of the document the petitioner could be excluded from the proceedings---Case was remanded to the trial court with the direction to frame an issue on the controversy as to the status of petitioner as legal heir of the deceased, allow both the parties to produce evidence and decide the matter afresh on the basis of evidence---Constitutional petition was accepted.

Raja Tasawer Iqbal and Ms. Ammara Liaquat Bhatti for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 2064 #

2020 Y L R 2064

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh, J

NOOR AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 3516-B of 2019, decided on 21st January, 2020.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), Ss.75-A & 84 (2)--- Dishonoring of cheque---Pre-arrest bail, grant of---Delay in presenting cheque---Stale/out of date cheque---Accused raised the plea that the cheque relied upon by complainant was presented one year after it was issued and no case could be registered against him---Validity---Cheque that was presented beyond six months from the date of issuance was generally regarded as 'stale' or 'out of date'---Bank was not obliged to honour such cheque unless instructed by account holder otherwise---Glossary issued by State Bank of Pakistan in Banking could be reckoned as an authentic reflection of 'usage of trade and of bankers' contemplated in S.84(2) of Negotiable Instruments Act, 1881---Cheque was out of date and complainant knew that it would not be encashed even then he presented it merely to bring the case against accused under S.489-F, P.P.C.---Case against accused was one of further inquiry---Pre-arrest bail was confirmed, in circumstances.

Muhammad Ashraf v. The State and others 2015 PCr.LJ 1050; Anwaar Masood Khan v. State and others 2018 PCr.LJ 469; Altaf-ur-Rehman v. State and another PLJ 2018 Cr.C. 532; Shafaqat Hussain Hashmi v. The State 2012 MLD 1551; Kamran Akhter v. Jawed Ahmed Khan 2005 CLC 797; Rekha Rani Pyne v. Sambhunath Halder 2000 (4) ICC 228; Stanley Barros Pereira v. Julieta Cota e Clemente and another 2006 (2) GOA L.R 287 and Arunbhai Nilkanthrai Nanavati v. Jayaben Prahladbhai 2000 Cri.LJ 1152 rel.

Sheraz Muhammad Khan for Petitioner.

Shahid Fareed, ADPP for the State with Ismail ASI.

YLR 2020 LAHORE HIGH COURT LAHORE 2086 #

2020 Y L R 2086

[Lahore (Rawalpindi Bench)]

Before Mujahid Mustaqeem Ahmad, J

Mst. MAMOONA BIBI---Petitioner

Versus

Syed MUHAMMAD UMAIR and others---Respondents

Diary No. 1263 of 2020, decided on 7th February, 2020.

Family Courts Act (XXXV of 1964)---

----S. 25-A---Transfer of cases---Scope---Petitioner sought transfer of suit from one Province to another---Validity---Section 25-A of Family Courts Act, 1964, dealt with transfers of cases pending before Family Court---Subsection (2b) of S. 25-A of Family Courts Act, 1964, was of relevance for the purpose of determination of objection raised by the office---Petition before the High Court was not competent in the wake of express provision of law---Office objection was sustained.

YLR 2020 LAHORE HIGH COURT LAHORE 2098 #

2020 Y L R 2098

[Lahore]

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

RAFIQUE SHAH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 1909, 1885 of 2009 and Capital Sentence Reference No.17-T of 2010, heard on 21st January, 2020.

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

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

----Ss. 302(b), 324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Prosecution case was that the accused party made firing upon the complainant party, due to which fourteen persons died including two passerby and fifteen were injured---Altercation between accused and one of the deceased of the complainant party was stated to be motive of the incident---Record showed that the Medical Officer confirmed that the witnesses of ocular account sustained injuries caused by firearm weapons---Presence of witnesses at the venue of occurrence could not be doubted in any manner---Medical evidence lent full support to the ocular account---Admittedly a heinous offence was committed wherein more than fourteen persons had lost their lives and many others sustained serious injuries but mere large number of casualties by itself did not bring the case within the purview of "terrorism"---Occurrence had taken place on account of difference between two individual private groups, which was based on their previous conflict---Circumstances established that the prosecution had been able to prove the charge against the appellants beyond shadow of reasonable doubt for causing the murder of fourteen innocent persons and eleven others, who sustained injuries, through cogent, reliable and confidence inspiring evidence---However, the recovery of weapon of offence from co-accused persons remained inconsequential due to negative report of the Ballistic Expert while nothing was recovered from accused---Furthermore, there was a joint role of the accused persons of making indiscriminate firing and no one could say with any degree of certainty that whose fire hit whom---Case of acquittal of co-accused though had no equation with the case of present accused persons yet it could be taken into account as one of the grounds to award lesser sentence---Appeal against conviction was partly dismissed with the result that conviction of the accused persons under Ss.302(b) & 149, P.P.C. was maintained, however, the death sentence was converted into one of imprisonment for life---Accused were acquitted of the charge in offences under Ss. 7(a) & 7(d) of Anti Terrorism Act, 1997.

Ghulam Hussain and others v. The State and others 2019 SLJ 1872 and Abdul Nabi v. The State 2017 SCMR 335 rel.

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

----Ss. 302(b), 324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Motive was proved---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which fourteen persons died including two passer by and fifteen were injured---Motive as set up by the prosecution was a previous quarrel between deceased and accused, which was patched up on the same day in a panchayat at a dera---Motive was very clear and admitted one by the other side qua participation of the complainant party in panchayat, tendering apology and after dua-e-khair and accompanying of the accused with them upto the road side where the vehicles had been parked---Accused awaited till the complainant party took their seats in the respective vehicles and then they started indiscriminate firing with pre-plan and pre-meditation in order to eliminate them forever and thus, they succeeded to kill fourteen innocent persons at the spot---Accused persons, in their statements recorded under S.342, Cr.P.C, admitted that they visited the dera where the complainant party tendered apology for disgracing accused by one of the deceased---Deceased, after panchayat and before boarding in the vehicles, received a telephone call of a vagabond of village and in response thereto, he abused inhabitants of village in presence of elders of that village, which resulted into an altercation at the spot and in that process deceased fired at the owner of dera and thereafter the firing started all around---If it had been so, the number of death-toll/causalities of the accused side would have been much more---In fact, the deceased persons, who just got their seats, were done to death helplessly in the respective vehicles---Facts and circumstances clearly showed that it was a pre-planned and pre-meditated incident where all the deceased were done to death by the accused persons and their co-accused after panchayat---Story narrated in statements recorded under S.342, Cr.P.C. by the accused persons that one of the deceased received call and abused the villagers was nothing but a bald assertion and an afterthought having no substance---Counter stance had rightly been proved by the witnesses of ocular account beyond shadow of reasonable doubt, which was supported with the medical evidence and other material available on record---Appeal was partly dismissed with the result that conviction of the appellants under Ss.302(b) & 149, P.P.C. was maintained, however, their death sentence was converted into one of imprisonment for life---Accused were acquitted of the charge in offences under Ss.7(a) & 7(d) of Anti Terrorism Act, 1997.

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

----S. 7---"Terrorism"---Scope---Design and purpose mentioned in the Anti-Terrorism Act, 1997 denoted that the act so committed by the accused should be with the intent to destabilize the country, create law and order situation, attack on the armed forces/law enforces agencies, national installations, purely against the State and State organs without any personal vendetta.

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

----S. 302--- Qatl-i-amd--- Conviction, quantum of---If a case qualifies the award of any of sentences of imprisonment for life and that of the death, proper course for the court, as a matter of caution, is to give preference to the lesser sentence.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Khawaja Haris Ahmed, Saleem Akhtar Sheikh, Ghulam Shabbir and Ms. Shazia Ashraf Khan for Appellants.

Ms. Shafqat Parveen Mughal at State Expenses.

Syed Ijaz Qutab for Appellant.

Muhammad Baleegh-uz-Zaman Chaudhary for the Complainant.

Muhammad Nawaz Shahid and Muhammad Moeen Ali, Deputy Prosecutors General for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 2115 #

2020 Y L R 2115

[Lahore]

Before Shujaat Ali Khan, J

AKHTAR MEHMOOD---Petitioner

Versus

SPECIAL JUDGE (RENT), LAHORE and 8 others---Respondents

Writ Petition No. 74606 of 2019, heard on 16th March, 2020.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 19 & 10---Eviction petition---Effect of other agreement---Scope---Petitioner/tenant assailed concurrent dismissal of his application seeking leave to contest---Validity---Petitioner, in his application seeking leave to contest, had admitted payment of rent notwithstanding execution of two agreements to sell---Execution of agreements to sell alone could not be used to accept that tenancy between the parties had come to an end---Section 10 of Punjab Rented Premises Act, 2009, dealt with such a situation where parties opted to enter into another agreement during currency of the tenancy---Cursory glance over the agreements to sell showed that in none of them it had been clarified that tenancy would come to an end---Constitutional petition was dismissed.

United Bank Limited Sahiwal through its Attorney v. Messrs Aziz Tanneries (Pvt.) Ltd. through its Chief Executive/MD and others 2004 CLD 1715; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Kabir Ahmad v. The Additional District Judge, Lahore and another 2018 CLC 161; JDW Sugar Mills Ltd. and others v. Province of Punjab and others PLD 2017 Lah. 68; Messrs Shaikh Naveed Ikhlas and 2 others v. Shaikh Abdul Hafeez and 6 others 2017 CLC 1278; Abdul Ghafoor v. Additional District Judge and others 2015 CLC 229; Muhammad Asif v. Amina Bibi and others 2014 MLD 1084; Haji Muhammad Saeed v. Additional District Judge 2012 MLD 108 and Qamar-ud-Din v. Abdul Latif and others PLJ 2009 Lahore 791 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Ejectment petition---Scope---Even one of the legal heirs of the deceased landlord can file ejectment petition.

Anwar Khan v. Abdul Manaf 2004 SCMR 126 rel.

----S. 12---Agreement to sell---Scope---Mere execution of an agreement to sell does not create any vested right or title in favour of a vendee except to provide him a cause of action to sue the vendor.

Muhammad Ibrahim and 44 others v. Fateh Ali and 30 others 2005 SCMR 1061 and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

Ahsan Bhoon, Hafeez ur Rehman Chaudhary and Noor Dad Chaudhary for Petitioner.

Mehr Abdul Shakoor for Respondents Nos. 3 to 9.

YLR 2020 LAHORE HIGH COURT LAHORE 2131 #

2020 Y L R 2131

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Mst. IQBAL BEGUM (deceased) through L.Rs. and others---Petitioners

Versus

Mst. RASHIDA BEGUM (deceased) through L.Rs. and others---Respondents

Writ Petition No.14454 of 2016, heard on 23rd September, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Agreement of exchange of property---Plaint, rejection of---Scope---Plaintiffs filed suit that defendants had executed exchange agreement with them and subsequent mutation on their behalf was based on fraud---Defendants, during pendency of suit, filed application for rejection of plaint on the ground that plaintiffs did not own the land which had allegedly been exchanged and even they had further transferred a portion of property from the exchanged land---Trial Court dismissed the petition for rejection of plaint but Appellate Court accepted the same---Validity---Questions of facts and law had been raised on behalf of both the parties which required factual investigation for their determination---Factual controversy could only be resolved after framing of issues and recording evidence---Court while deciding application for rejection of plaint had to consider the contents of plaint and documents annexed there-with---Plaint should be examined to determine whether it did disclose a cause of action or not and for the same the facts stated therein were to be deemed to be true---Question whether plaintiff would succeed on merits or not had to be decided after framing of issues and recording evidence---Plaint, in the present case, did disclose a cause of action and there was no reason to reject the plaint at initial stage---Appellate Court had travelled beyond the scope of O.VII, R.11, C.P.C.---No evidence had been produced and stance of defendants could not be admitted, in circumstances---Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored---High Court observed that suit was to be deemed to be pending before the Trial Court and be decided on merits after framing of issues and recording evidence---Constitutional petition was allowed, accordingly.

Ch. Mudassar Saghir for Petitioners.

Ch. Muhammad Akram and Muhammad Islah-u-Din Dogar for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 2143 #

2020 Y L R 2143

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

FAIZ UR REHMAN ALVI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA and others---Respondents

Writ Petition No. 15389 of 2019 ,decided on 11th October, 2019.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of oral agreement to sell---Interim injunction, refusal of---Scope---Petitioner had called in question the order passed by Trial Court whereby in a suit for specific performance of oral agreement filed by him, his application for interim injunction was dismissed---Appeal filed against said order was also dismissed---Validity---Original owners had denied the petitioner's claim while respondent had claimed to be the owner of the suit property on the basis of agreement to sell and consequent mutation---Petitioner had yet to prove the alleged oral agreement in his favour by producing evidence---Ingredient of prima facie case for grant of interim injunction was missing in the present case---Petitioner had also failed to show that balance of convenience was in his favour and as to how he would suffer irreparable loss if temporary injunction was not granted in his favour---High Court observed that merely being in possession of the property did not confer any right for grant of interim relief---Constitutional petition was dismissed, in circumstances.

Muhammad Ali v. Mehnga Khan 2004 SCMR 1111 ref.

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

----O.XXXIX, Rr. 1 & 2---Cases in which temporary injunction may be granted---Injunction to restrain repetition or continuance of breach---Prima facie case---Facts required to be established through evidence---Scope---Where some facts are required to be established through recording of evidence, prima facie case cannot be presumed.

----O.XXXIX, Rr. 1 & 2---Cases in which temporary injunction may be granted---Injunction to restrain repetition or continuance of breach---Possession of suit property---Effect---Mere possession of the suit property does not confer any right for grant of interim relief.

Muhammad Ali v. Mehnga Khan 2004 SCMR 1111 ref.

YLR 2020 LAHORE HIGH COURT LAHORE 2159 #

2020 Y L R 2159

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD ASLAM and others---Appellants

Versus

PROVINCE OF PUNJAB and others---Respondents

R.S.A. No. 8 of 2015, decided on 30th September, 2019.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Limitation Act (IX of 1908), S. 5---Suit for specific performance---Appeal from original decree---Condonation of delay---Scope---Appellants called in question the order passed by trial court under O.XVII, R.3, C.P.C. and the judgment passed by lower appellate court whereby appeal was dismissed as barred by time---Appellants claimed that their predecessor-in-interest was murdered and prior to his murder he was abducted by an organized group for ransom due to which he could not file appeal within time---Validity---Appellants could not explain in detail the dates on which their predecessor-in-interest was prevented from bringing evidence to the Court on the basis of circumstances beyond his control and also the exact dates on which they could not file appeal within time due to uncontrollable state of affairs---Fact of abduction was not substantiated by any document---FIR produced by appellants regarding murder of their father (predecessor-in-interest) was silent about his abduction at the relevant time---Delay on behalf of predecessor-in-interest of appellants was not sufficiently explained to warrant condonation of delay---Second appeal was dismissed, in circumstances.

YLR 2020 LAHORE HIGH COURT LAHORE 2179 #

2020 Y L R 2179

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD SHARIF---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.1131 of 2019, decided on 8th October, 2019.

(a) Punjab Conferment of Proprietary Rights on Occupancy Tenants and Muqarraridars Act (XXVII of 2012)---

----S. 3--- Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration---Conferment of proprietary rights---Interim injunction, refusal of---Scope---Petitioner assailed concurrent dismissal of his application for grant of interim injunction---Petitioner had challenged the allotment of land in favour of respondents on the basis of his possession over the property for the last fifty years---Validity---Claim of petitioner was based on entry of possession in revenue record whereas the property vested with respondents through the mutation---Balance of convenience did not lie in favour of the petitioner as mutation was entered in favour of the respondents in the year 2011, which was challenged by the petitioner in the year 2016---Question of suffering irreparable loss also required recording of evidence for determination---No illegality, jurisdictional defect, erroneous exercise of jurisdiction, mis-reading and non-reading by courts below was pointed out by the petitioner---Revision petition was dismissed.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Prima facie case---Scope---Where evidence is required to prove a claim, such case cannot be presumed to be a prima facie case.

YLR 2020 LAHORE HIGH COURT LAHORE 2181 #

2020 Y L R 2181

[Lahore]

Before Asim Hafeez, J

MUHAMMAD SHARIF SADRA (deceased) through L.Rs. and others---Petitioners

Versus

IRFAN LATIF and others---Respondents

Regular Second Appeal No.173 of 2005 and Civil Revision No.1108 of 2006, decided on 20th March, 2020.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 129, illust. (g)---Suit for specific performance of agreement to sell---Withholding of evidence---Presumption---Payment of balance consideration amount---Proof---Suit filed by plaintiff was decreed by Trial Court on the ground that plaintiff had proved payment of consideration amount---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Production of notice was crucial and failure thereof indicated conscious withholding of relevant and crucial evidence---Notice and contents was a substantive piece of evidence, required to prove factum of alleged request to defer delivery of possession and balance consideration, which notice was withheld by plaintiff without any explanation---Mere production of envelope, alleging delivery of notice to defendant, did not substituted requirement of producing notice---Absence and failure to produce notice raised adverse inference against plaintiff in terms of Art. 129(g) of Qanun-e-Shahadat, 1984---Concurrent findings recorded and legal inference drawn by Courts below regarding admissibility of evidence and proof of execution of agreement in question were contrary to law---Conclusions reached on the basis of such findings were erroneous and illegal---High Court set aside judgments and decrees passed by two Courts below and dismissed the suit filed by plaintiff---Appeal was allowed accordingly.

Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Major (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar 2006 SCMR 735; Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others PLD 2007 SC 287; Khan Muhammad v. Muhammad Din through LRs 2010 SCMR 1351; Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386; Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70; Muhammad Ramzan v. Saif Nadeem Electro (Pvt.) Ltd. through Chairman and 5 others PLD 2006 Lah. 571; Muhammad Ramzan and 4 others v. Mst. Masooda Hasan and 2 others PLD 1993 Quetta 88; Abdul Ghaffar v. Muhammad Sharif 1993 CLC 1779; Muslim Commercial Bank Ltd. through General Attorney and another v. Amir Hussain and another 1996 SCMR 464; Abdul Rashid v. Bashiran and another 1996 SCMR 808; Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR 976; District Council, Sialkot v. Chaudhry Nazir Ahmad Khan and 2 others 2001 SCMR 1641; Mukhtar Ahmad v. Returning Officer and others 2017 MLD 282; Sajjad Hussain and 4 others v. Muhammad Yousaf and another 2019 CLC 309; Haji Abdul Majeed & Co. through Managing Partner v. Additional District Judge Burewala District Vehari and 10 others 2019 CLC 1693; Naveed v. National Database and Registration Authority through Chairman NADRA and 3 others 2020 MLD 157 and Syed Muhammad Sultan v. Kabir-ud-Din and others 1997 CLC 1580 ref.

Arshad Malik Awan for Appellants.

Ahmad Waheed Khan for Petitioners (in C.R. No. 1108 of 2006).

Syed Kaleem Ahmad Khurshid and Mian Javed Iqbal Arain for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 2222 #

2020 Y L R 2222

[Lahore]

Before Raja Shahid Mahmood Abbasi, J

ALLAH WARIS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 22144-B of 2020, decided on 4th June, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 394, 337-A(i), 337-F(iii), 337-F(v) & 411---Voluntarily causing hurt in committing robbery, shajjah-i-khafifah, mutalahimah, hashimah, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Scope---Allegation against accused was that when complainant along with others was present in his agency and counting the cash, three unknown accused committed robbery, snatched cash and on resistance fired upon one of them---Accused was not nominated in the FIR---Accused was apprehended on the disclosure of co-accused---Prosecution witnesses had identified the accused but his exposure to complainant could not be ruled out---Recovery of certain amount of sum and a pistol from the accused hardly connected the petitioner with the crime alleged against him as recovery of currency was of general pattern and evidentiary value of the same would be determined by the Trial Court after recording evidence---Prosecution witnesses despite issuance of bailable warrants had not appeared before the Trial Court---Case of accused was one of further inquiry as contemplated in S.497(2), Cr.P.C.---Investigation to the extent of accused was complete and he was not required for further investigation---Petition for grant of bail was allowed, in circumstances.

Irslan Zohaib v. The State 2016 SCMR 1217 ref.

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

----S. 497---Bail---Principle---Scope---Where the offence does not fall within the prohibitory clause of S.497, Cr.P.C., grant of bail in such like cases is a rule and refusal is an exception.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

---S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible.

Ch. Zulfiqar Ali Hargan for Petitioner.

Ms. Noshe Malik, D.P.G. with Fayaz Hussain, S.I. for Respondents.

YLR 2020 LAHORE HIGH COURT LAHORE 2239 #

2020 Y L R 2239

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD IFTIKHAR JAVED and others---Petitioners

Versus

MUHAMMAD ASHRAF---Respondent

Civil Revision No. 1381 of 2019, heard on 25th June, 2020.

Civil Procedure Court (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877) S. 12---Suit for specific performance of contract to sell immovable property---Oral agreement to sell immovable property---Temporary injunction, grant of---Principles---Temporary injunction by its nature was a preventive remedy---First condition for grant of temporary injunction was "prima facie case" and such condition was foundational and a court was to consider other two conditions thereafter---In a suit for specific performance to sell immoveable property on basis of an oral agreement claimed by plaintiff, if the same is denied by other side, then there would not exist any prima facie case---Courts, in a suit for specific performance on basis of oral agreement, were to always ask for evidence to show that such an agreement existed while adjudicating under O. XXXIX, Rr. 1 & 2, C.P.C.

Chairman Municipal Committee, Taxila v. Mohammad Jan and 4 others 1987 CLC 2416; Ghulam Muhammad v. Ashiq Hussain and 13 others 2018 MLD 1449; Muhammad Aslam v. Muhammad Khan and another 1999 SCMR 2267 and Muhammad Yousaf and another v. Ch. Tajammal Hussain and another 2019 CLC Note 38 rel.

Ch. Khadim Hussain Ghelan for Petitioners.

Ch. Muhammad Ashraf Sindhu for Respondent.

YLR 2020 LAHORE HIGH COURT LAHORE 2294 #

2020 Y L R 2294

[Lahore]

Before Mujahid Mustaqeem Ahmad, J

AHMAR ALTAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 9741-B of 2020, decided on 26th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Delayed FIR---Effect---Accused was alleged to have borrowed certain sum of amount from the complainant as loan and while admitting financial liability had issued a post-dated cheque which, on presentation, was dishonoured---FIR was lodged with a delay of eight months---Contention of accused that the complainant had invested in joint business and in that context, aforesaid cheque was issued as guarantee, would be appreciated by the Trial Court---Person of accused was not needed for any valid purpose, whereas, conclusion of trial could take time---No other criminal case of identical nature was lodged against the accused---Offence for which the accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C., as such, it was a case of bail and not jail---Petitioner was admitted to bail, in circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Sikandar Zaman v. The State and others 2011 SCMR 870; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Mansha Khan v. The State 1977 SCMR 449 ref.

Muhammad Tanveer v. The State and another PLD 2017 SC 733 rel.

Kashif Mahmood Chaudhary for Petitioner.

Shabbir Ahmad, Deputy Prosecutor-General for the State with M. Mansha, ASI.

YLR 2020 LAHORE HIGH COURT LAHORE 2330 #

2020 Y L R 2330

[Lahore]

Before Masud Abid Naqvi, J

MUHAMMAD JAVED---Appellant

Versus

MUHAMMAD RASHID---Respondent

R.F.A. No.708 of 2011, heard on 13th November, 2019.

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

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit on negotiable instrument---Presumptions as to negotiable instruments--- Negotiable instrument drawn without consideration---Burden of proof---Scope---Plaintiff/respondent filed suit for recovery of certain amount on the basis of promissory note against the defendant/appellant, which was decreed---Held, that marginal witnesses of the pro note had fully corroborated the version of the plaintiff and had also testified about the execution of pro note---Expert of the Fingerprint Bureau had affirmed that the pro note bore the thumb impression of defendant---Defendant had failed to substantiate his claim that consideration of pro note was not received by him---Appeal was dismissed.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Presumptions as to negotiable instrument---Scope---Initial presumption is that the negotiable instrument is made, drawn, accepted or endorsed for consideration and in a case to the contrary, onus is on the person who is claiming to have executed a guarantee cheque.

Muhammad Azizur Rehman v. Liaquat Ali 2007 CLD 1542 rel.

Shabbir Ahmad Khan for Appellant.

Ch. Amin Rehmat for Respondent.

YLR 2020 LAHORE HIGH COURT LAHORE 2344 #

2020 Y L R 2344

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ILYAS---Petitioner

Versus

MUMTAZ BEGUM and others---Respondents

Civil Revision No. 25529 of 2020, decided on 11th June, 2020.

Specific Relief Act (I of 1877)---

----S.8---Suit for possession of immovable property--- Admission---Withdrawal of---Effect---Suit land was inherited in favour of plaintiffs being widow and minor son of deceased---Defendant having possession of suit property being nephew of deceased filed earlier suit for declaration on the basis of gift against public-at-large which was ex parte decreed---Plaintiffs moved application for setting aside of said ex parte decree which was accepted with the consent of defendant wherein he admitted relationship of plaintiffs as widow and son of the allottee---Defendant thereafter withdrew the said suit and filed another suit against the plaintiffs on the basis of gift wherein he also admitted the plaintiffs as widow and son of the deceased---Said suit filed on behalf of defendant was dismissed and thereafter plaintiffs moved an ejectment petition against the defendant wherein he admitted the relationship of plaintiffs with the deceased---Plaintiffs could not prove relationship of landlord and tenant and eviction petition was dismissed and thereafter present suit was filed wherein defendant had denied the relationship of plaintiffs with the deceased---Suit filed on behalf of plaintiffs was decreed concurrently---Validity---Defendant had admitted the relationship of plaintiffs as widow and son of the allottee in the earlier litigations---Admission once made could not be withdrawn at any subsequent stage---Defendant was estopped to develop different stance other than the one already confirmed before the Court of law---Defendant had made allegations of illicit relationship of plaintiffs with the deceased allottee malafidely just for a defence to prolong his unauthorized possession---Defendant had lost his case on the basis of gift and he was bound to part with his possession forthwith---Real owners of suit property had been entangled in baseless litigation one after the other which practice was to be condemned---Defendant had defied the modesty of an old age widow and undermined the personality of her son while claiming him illegitimate child---Plaintiffs had right to independently proceed under the law against the defendant in that regard---Courts should be courageous to impose heavy costs against the defendant for his ill designs---Defendant had managed forged gift and asserted baseless allegations and prolonged his illegal possession over the suit property---Revision was dismissed with costs of Rupees 200,000/---Executing Court was directed to satisfy the decree as well as cost imposed herein within sixty days---Revision was dismissed in limine, in circumstances.

YLR 2020 LAHORE HIGH COURT LAHORE 2371 #

2020 Y L R 2371

[Lahore]

Before Aalia Neelum, J

MUHAMMAD HUSSAIN and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 947 and Criminal Revision No.1088 of 2009, heard on 9th January, 2019.

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

----Ss. 302, 337-H(2), 148 & 149---Qatl-i-amd, hurt by rash or negligent act, rioting armed with deadly weapon, common object---Appreciation of evidence---Benefit of doubt---Delayed FIR--- Contradictory statements---Contradiction in ocular and medical evidence---Scope---Accused persons were alleged to have murdered the deceased within the presence of complainant and witnesses---Names of complainant and witnesses were not mentioned in the inquest report as identifiers of the dead body---Copy of FIR, along with other documents, was not sent to the doctor who conducted post-mortem examination of the deceased---Circumstances suggested that till the time of post-mortem examination, FIR was not in existence---Doctor had opined that the duration between injury and death was half an hour whereas the eye-witnesses stated that the deceased succumbed at the spot---Testimony of related witnesses being not in accordance with medical evidence was sufficient to disbelieve their testimony---Several contradictions existed in the testimonies of the eye-witnesses---Prosecution had failed to bring home charge against the accused beyond reasonable doubt---Appeal was accepted.

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

----Ss. 302, 337-H(2), 148 & 149---Qatl-i-amd, hurt by rash or negligent act, rioting armed with deadly weapon, common object---Recovery of crime weapon---Scope---Accused persons were alleged to have murdered the deceased in the presence of complainant and witnesses---Recovery of bloodstained hatchets after 23 days of the occurrence could not be termed as reliable---Even otherwise, it did not appeal to reason that the accused persons had kept "hatchets" with them in their houses intact in order to produce the same before the Investigating Officer on their arrest---Contradictions in the testimonies of police witnesses made the recovery doubtful---Prosecution had failed to bring home charge against the accused beyond reasonable doubt---Appeal was accepted.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308 ref.

----Ss. 302, 337-H(2), 148 & 149---Qatl-i-amd, hurt by rash or negligent act, rioting armed with deadly weapon, common object---Motive not proved---Scope---Accused persons were alleged to have murdered the deceased in the presence of complainant and witnesses---Motive set up by the prosecution which was otherwise vague and hardly inspired confidence had remained un-proved---Prosecution had failed to bring home charge against the accused beyond reasonable doubt---Appeal was accepted.

Arshad Ali Chohan for Appellants with Appellants.

Muhammad Zulsabtain Aamir, Deputy District Public Prosecutor for the State.

Ashraf Ali Qureshi and Muhammad Nasir Dilshad for the Complainant.

YLR 2020 LAHORE HIGH COURT LAHORE 2398 #

2020 Y L R 2398

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Mst. AFZAL BIBI---Petitioner

Versus

HAZOOR SHAH and others---Respondents

Civil Revision No. 1138-D of 2019, decided on 9th October, 2019.

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of agreement to sell---Oral agreement---Interested witness---Non-availability of independent advice to an infirm lady---Effect---Suit for specific performance of oral agreement to sell filed by petitioner was concurrently dismissed by the Trial Court and Appellate Court---Validity---Petitioner was required to specifically state in the plaint the time, date and place where the agreement was executed and the name of witnesses in whose presence the said transaction was agreed between the parties---Plaint did not reveal as to when and where the agreement was entered between the parties---First witness was the husband of petitioner while the other was the friend of her husband, therefore, both were interested witnesses---Petitioner had failed to establish as to how a huge amount of partial payment was paid by her to the deceased-lady (respondent) and where she had kept the said amount---Petitioner had failed to explain as to what was the need and what independent advice was available to the deceased lady for making such a transaction in favour of her sister and that too orally and in the absence of any independent witness--- Petitioner could not substantiate her claim for specific performance of the oral agreement and the judgments passed by courts below dismissing her suit concurrently were well founded and warranted no interference by High Court---Revision petition was dismissed.

Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

YLR 2020 LAHORE HIGH COURT LAHORE 2421 #

2020 Y L R 2421

[Lahore]

Before Atir Mahmood, J

PCBL---Petitioner

Versus

ZEENAT BIBI and others---Respondents

Co-operative Petition No. 31 of 2016 and other connected Petitions, decided on 12th June, 2020.

Punjab Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993), Ss. 7, 16 & 17--- Cooperative petition---Maintainability--- Ejectment petition against Pakistan Development Cooperative Corporation Limited ("Cooperative Corporation")---Execution petition for recovery of arrears of rent from Cooperative Corporation---Auction of property of the Cooperative Corporation---Scope---Ejectment petition against Cooperative Corporation was moved wherein tenant appeared and moved application for rejection of said ejectment petition which was dismissed--- Cooperative Corporation thereafter disappeared from the ejectment proceedings and eviction petition was accepted ex parte and Cooperative Corporation was directed to pay arrears of rent to the ejectment petitioner---Landlady moved execution petition for recovery of arrears of rent against the Cooperative Corporation wherein auction of property of tenant was conducted and registered sale deed was issued---Contention of petitioner-Cooperative Board was that Rent Controller was not competent to execute its ejectment order unless same was confirmed by the Cooperative Judge and proceedings of auction and sale of property of Cooperative Corporation were illegal---Validity---Cooperative Board or its Chairman had no power to challenge any order, judgment or decree of any court even if passed without jurisdiction before Cooperative Judge---Right to approach Cooperative Judge had not been extended to the Cooperative Board rather such right had been bestowed upon the decree-holder or the beneficiary of the order passed by some other Court---Respondent being owner of demised premises filed ejectment petition which had been accepted with arrears of rent to be paid by the Cooperative Corporation and said order had been executed---Cooperative Corporation was tenant under the respondent who had not challenged the ownership of any of assets of the Cooperative Corporation rather prayed for ejectment of her tenant from her property---Ejectment proceedings initiated by the respondent were not with regard to any asset of defunct Cooperative Corporation---Cooperative Board could raise objections during execution proceedings or file an appeal against the order of Executing Court but none of the said remedies had been availed by the petitioner---Cooperative Judge was a persona designata and could only act in accordance with the powers specifically given to him and not otherwise--- Cooperative Judge had no power to set aside the impugned ejectment order of the Rent Controller or cancel a registered sale deed---If any decree, order or document had been executed without jurisdiction then same would be nullity in the eye of law but Cooperative Judge could not nullify the effect of such judgment, decree or sale deed and same could only be assailed before proper forum---Cooperative petition being not maintainable was dismissed, in circumstances.

Muhammad Ashfaq v. The State PLD 1973 SC 368; Begum Syeda Azra Masood v. Begum Nosheba Moeen and others 2007 SCMR 914; Nazir Ahmad v. Imdad Hussain and others 2005 YLR 1096; Syed Mehmood Ali v. Network Television Marketing (Pvt.) Ltd. and another PLD 2005 Kar. 399; Evacuee Trust Property Board through Secretary v. Deputy Commissioner, Sahiwal and another 1994 CLC 939; Mehdi Khan and 2 others v. Board of Revenue, Punjab, Lahore and 25 others 2000 CLC 638; Waheed Shahzad Butt v. Federation of Pakistan through Director Legal-II President (Appellant Authority) and another PLD 2016 Lah. 872 and Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 ref.

Messrs Umar Auto Store and others v. The Judge Banking Court and others 2014 CLD 1452; The Collector of Sales Tax and Central Excise, LTU, Karachi v. Messrs Pak Suzuki Col. Ltd. Karachi 2016 SCMR 646; Dr. Muhammad Afzal Hussain v. Additional District Judge, Lahore and 5 others 2015 CLC 1546; Muhammad Umar Mir, and others v. Dr. Muhammad Afzal Hussain and others PLJ 2016 SC 120; Tanveer Ahmad v. Muhammad Sharif and 2 others 1997 MLD 1913; Mian Umar Ikram ul Ha1ue v. Dr. Shahida Hasnain and another 2016 SCMR 2186; Securities and Exchange Commission of Pakistan through Authorized Officer v. Adnan Faisal and another PLD 2019 Sindh 235; Muhammad Asif Nawaz v. Additional Sessions Judge/Justice of Peace Multan and 2 others 2014 CLD 45; Messrs Askari Leasing Ltd. through Chief Manager v. Presiding Officer and another PLD 2015 Lah. 140; Muhammad Asif Nawaz v. Additional Sessions Judge/ Justice of Peace Multan and 2 others 2014 PCr.LJ 1; Messrs Noorani Traders Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi PLD 2002 Kar. 83; The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567; 2003 PTD (Trib.) 613; Muhammad Ayub and others v. Mst. Nusrat Begum 2003 YLR 793; United Bank Limited through Attonrey v. Messrs Blessed International (Pvt.) Limited and 6 others 2003 CLD 39; Defence Housing Authority, Islamabad v. Shafqat Rasool and others 2017 YLR 538; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Messrs Housing and Works, Islamabad and others 2013 SCMR 338; Muhammad Saleem and 2 others v. Khuda Bux and 4 others 2013 MLD 266; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary Sindh, Karachi and 3 others 2005 PLC (C.S.) 189; Makhdum Raju Shah v. Member Board of Revenue, Punjab and 17 others 2011 YLR 1724; Faizullah v. Muhammad Sarwar and another 2013 CLC 1054; Brothers Sugar Mills Limited and others v. Punjab Cooperative Board for Liquidation and others 2012 CLC 1369 and Zia Ullah Shah v. Muhammad Khaqan and 6 others 2018 MLD 1869 distinguished.

Nadeem ud Din Malik, Khalid Bashir and Mahmood Tahir Ch. for Petitioner.

Sh. Usman Karim ud Din for Respondent No. 1.

Proceeded against ex parte vide order dated 26.10.2018 (Respondent No.2).

YLR 2020 LAHORE HIGH COURT LAHORE 2428 #

2020 Y L R 2428

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

MOHAMMAD AKRAM and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 195-ATA of 2019, heard on 16th December, 2019.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 11-F & 11-G---Pakistan Arms Ordinance (XX of 1965), S.13-2(a)---Keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Delay of about one hour and ten minutes in lodging the FIR---Scope---Prosecution case was that pistols, IED and hand grenades were recovered from the possession of accused persons---Record showed that at about 11.50 a.m. accused were arrested with ammunitions---Police Official drafted the written complaint at 12.45 p.m. and forwarded the same to the police station---Facts remained that police station was situated at a distance of sixteen kilometres from the place of occurrence---Consequently, FIR was lodged against the accused at 1:00 p.m. within a short time of twenty minutes after receiving the draft---First Information Report was got lodged within a short duration and the complainant not only named the accused but also mentioned each and every minor as well as material fact of the incident therein, which, of course, excluded the possibility of the deliberation or consultation regarding false implication of the accused in the case---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 11-F & 11-G---Pakistan Arms Ordinance (XX of 1965), S.13-2(a)---Keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Prosecution case was that pistols, IED and hand grenades were recovered from the possession of accused persons---Ocular account of the occurrence had been furnished by complainant and a witness---Complainant, in his statement before the Trial Court, reiterated the same facts and levelled the same allegations as were incorporated in the written complaint and in the FIR---In order to support the deposition of complainant, the prosecution had relied on the statement of eye-witness---Both the witnesses had consistently corroborated the version adopted by each other---Statements of said witnesses were in line with each other on each and every minor as well as material aspect of the case and smooth flow of facts was apparent from their depositions---Said witnesses were subjected to lengthy cross-examination by the defence but without extracting anything beneficial for the accused---Defence objected that the prosecution had failed to produce even a single private person in support of the case, however, S.19-A of the Anti Terrorism Act, 1997, excluded the applicability of S.103, Cr.P.C., therefore, association of' witnesses from the public was not mandatory--- Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

----Witness ---Testimony of police officials---Scope---Police witnesses are as good witnesses as any other witness until the defence could have successfully shattered their credibility or brought on record any mala fide of police witnesses to depose against the accused---Depositions of police witnesses could not be brushed aside merely on the bald allegation that they happened to be employees of police department.

(d) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 11-F & 11-G---Pakistan Arms Ordinance (XX of 1965), S.13-2(a)---Criminal Procedure Code (V of 1898), S. 342---Keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Examination of accused---Scope---Record showed that the statement of the accused recorded by the Trial Court under S.342, Cr.P.C. did not show any plausible justification for keeping the hand grenades and IED in their custody---Accused made no effort to prove their claim that they were apprehended by Police Officials prior to occurrence and subsequently were shown to be arrested on 24.05.2018 in that case---Said claim of the accused was also not discernible from the perusal of the prosecution evidence---Recovery of said hand grenades as well as the recovered IED and pistol from the accused had, therefore, provided enough corroboration to the ocular evidence of complainant and eye-witness so as to prove their guilt to the hilt---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Bashir Khan Sikhani for Appellant.

Malik Mudassar Ali, Deputy Prosecutor General with Latif Ahmad, Inspector, CTD Multan for the State.

YLR 2020 LAHORE HIGH COURT LAHORE 2501 #

2020 Y L R 2501

[Lahore]

Before Rasaal Hasan Syed, J

Mst. SHAHEEN BIBI---Petitioner

Versus

SAEED AHMED RANA and others---Respondents

Writ Petition No. 16404 of 2020, decided on 17th June, 2020.

Specific Relief Act (I of 1877)---

----S. 39---Suit for cancellation of sale-deed---Plaintiff died during pendency of suit and his legal heirs were impleaded as plaintiffs---Dispute had arisen to the extent of status of petitioner as plaintiff's widow who was denied to be a legal heir on the basis of a divorce deed--- Validity--- Petitioner denied genuineness of divorce deed, the respondents were banking upon---Respondents were under obligation to prove the document to be genuine and it was only after the proof of the document that petitioner could be excluded from the proceedings---Original National Database and Registration Authority record in the perception of petitioner, contradicted the stance of respondents---Parties were involved in factual controversy, therefore, Trial Court could not casually accept one side's viewpoint or nonsuit the petitioner without any inquiry or opportunity of evidence---High Court, under constitutional jurisdiction set aside orders passed by two Courts below and case was remanded to Trial Court for decision afresh after framing of issue and recording of evidence of parties---Constitutional petition was allowed accordingly.

Ms. Ammara Liaquat Bhatti and Raja Tasawer Iqbal for Petitioner.

YLR 2020 LAHORE HIGH COURT LAHORE 2524 #

2020 Y L R 2524

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

KHALID RAZZAQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 450 of 2018, heard on 19th September, 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 narcotics---Report of test or analysis---Appreciation of evidence---Benefit of doubt---Consolidated sample---Safe custody---Scope---Accused was alleged to have been caught red handed with 3120 grams of charas---292 puries of charas were allegedly recovered from the possession of accused but the complaint prepared only one sealed packet and did not draw sample from each pury---Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 provided that it was incumbent upon the investigator/forwarding agency to give specific number to each sample and the substance from which it was prepared in order to relate to its origin---Likewise it was compulsory for the Forensic Laboratory to prepare the report with respect to each packet by specifically numbering them and giving details of full protocols of the tests applied as mandated by the said rule---Report of Forensic Laboratory revealed that one sealed parcel containing resinous material in seal parcel was received by it---Prosecution had failed to prove the safe custody of the narcotics allegedly recovered from the accused---Appeal against conviction was allowed, in circumstances.

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

----R. 6---Report of test or analysis---Separate result of each sample---Scope---Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 makes it imperative on an analyst to separately mention result of each sample or piece analyzed with full protocols applied thereon along with other details in the certificate issued for test/analysis by Laboratory.

----S. 9---Possession of narcotics---Safe custody---Safe transmission---Chain of custody---Scope---Prosecution was to establish that the chain of custody was unbroken, non-suspicious, indubitable, safe and secure---Break in the chain of custody and lapse in the control of possession of the recovered narcotics, cast doubts on the safe custody and safe transmission of the articles and impaired and vitiated the conclusiveness and reliability of the report of Forensic Laboratory, thus, rendering it incapable of sustaining conviction.

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

----S. 29---Presumption from possession of illicit articles---Scope---Manner and standard of proof in cases registered under Control of Narcotic Substances Act, 1997, is slightly different but the prosecution is always bound to discharge the initial onus of proof.

(e) Criminal trial---

----Benefit of doubt---Scope---Burden to prove the guilt of the accused always lies on the prosecution---Even the slightest doubt results in failure of the case of prosecution---Benefit of doubt is not to be granted as a concession but as of right.

Ikramullah and others v. The State 2015 SCMR 1002; Akhtar Iqbal v. The State 2015 SCMR 291 and Muhammad Hussain v. The State 2008 SCMR 345 ref.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Shaukat Javed for Appellant.

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

YLR 2020 LAHORE HIGH COURT LAHORE 2575 #

2020 Y L R 2575

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Mst. RAEES BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 4 others---Respondents

Writ Petition No. 1795 of 2020, decided on 6th February, 2020.

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

----S. 25---Custody of minor---Welfare of minor---Second marriage---Effect---Petitioner being paternal grandmother moved an application for custody of minors against their mother on the ground that she had been divorced and had contracted second marriage---Petition for custody of minors was dismissed concurrently--- Validity---Minors throughout remained in the custody of their mother and she was properly looking after the minors and giving them due education---Paramount consideration in such matter was the welfare of minors---Welfare of minors in the present case was with their real mother---Petitioner had also contracted second marriage after death of her husband and father of minors who was paralyzed was also under her due care---Minors, in the present case, were male children and petitioner was their paternal grandmother---Petitioner could not be given preference over the real mother of the minors who since their birth was looking after them properly---Second marriage of the mother did not denude her of the custody of minors unless said marriage had impinged upon the welfare of minors---Father of minors in the earlier litigation had agreed to the continuation of their custody with their mother till majority---Second husband of mother was supporting her in looking after the minors and taking care of their education---Minors' education or health had not affected due to second marriage of their mother---Father of minors was neither interested nor was capable of taking care of the minors---Any change in the custody of minors at this age would affect their mental and physical condition---Welfare of minors did not lie in disturbing their custody at that stage and they should not be deprived of the supervision of their mother---No error of law or jurisdiction had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed accordingly.

Mst. Noor Afshan v. Muhammad Ghalib and 3 others 2019 CLC 1787; Sardar Hussain v. Mst. Parveen Umer and 6 others 2003 YLR 3054; Mst. Ruqayya Yasmin v. Muhammad Riaz and others 1991 MLD 166; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Mst. Firdous Iqbal v. Shafaat Ali and others 2000 SCMR 838 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 rel.

YLR 2020 LAHORE HIGH COURT LAHORE 2636 #

2020 Y L R 2636

[Lahore]

Before Malik Shahzad Ahmad Khan and Raja Shahid Mahmood Abbasi, JJ

The STATE through Deputy Director (Law)---Petitioner

Versus

SARDAR MUHAMMAD alias SARDARA GUJJAR and others---Respondents

Criminal Appeal No.667 of 2010, decided on 1st June, 2020.

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

----S. 19---Forfeiture of assets---Pre-condition---If accused of offence punishable under Control of Narcotic Substances Act, 1997, is sentenced to imprisonment for a term exceeding three years only then Court can order that his assets derivable from trafficking in narcotics substances be forfeited.

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

----Ss. 9 (c), 14, 15, 19, 37 & 48---Forfeiture of assets, refusal of---Acquittal---Accused was acquitted by Trial Court and the Court declined to forfeit his assets on the ground that his son and brother were involved in drug trafficking---Validity---Accused was tried for charges under Ss.9, 14 & 15 of Control of Narcotic Substances Act, 1997, along with other charges but he was not convicted and sentenced by Trial Court for the charge under S.9(c) of Control of Narcotic Substances Act, 1997, nor for abetment of the offence, as envisaged under S.15 of Control of Narcotic Substances Act, 1997---Accused was acquitted by Trial Court from all charges therefore, provisions of S. 37 of Control of Narcotic Substances Act, 1997, were not attracted against him---Authorities filed appeal malafidely against accused only on the ground that his son and brother were also accused in the case---High Court declined to interfere in the order passed by Trial Court as no illegality or material irregularity was pointed out in the order---Appeal was dismissed in circumstances.

Kashif Javed, Special Prosecutor for A.N.F.

YLR 2020 LAHORE HIGH COURT LAHORE 2660 #

2020 Y L R 2660

[Lahore]

Before Shahid Waheed and Jawad Hassan, JJ

SHER ZAMAN---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

I.C.A. No. 37136 of 2020, decided on 24th August, 2020.

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

----S. 10---Issue of statements of conditions of tenancies---Scope---Appellant assailed order passed by Single Judge of High Court whereby his constitutional petition was dismissed---Appellant had sought a direction restraining the authorities from dispossessing him from the disputed land and from including the land under cultivation for auction---Validity---Land under possession of appellant was leased out to him under the Temporary Cultivation Scheme---Neither the available record suggested that the lease of the land was extended after the year 1998 nor the appellant tendered any document to establish that he had deposited the arrears of rent or made a written request seeking permission to deposit arrears of rent---Appellant was not only a defaulter but was also in unauthorized possession of the land---Doctrine of Istehsan could not be applied in his favour so as to perpetuate his unauthorized possession of State Charagah land---Intra-court appeal was dismissed.

Managing Committee Masjid Muhajrin v. Mst. Zainab Bibi and others 1974 SCMR 230 ref.

YLR 2020 LAHORE HIGH COURT LAHORE 2691 #

2020 Y L R 2691

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

SHEHZAD AKHTAR---Petitioner

Versus

DISTRICT JUDGE, MUZAFFARGARH and others---Respondents

Writ Petition No. 15409 of 2019, decided on 11th October, 2019.

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

----S. 5 & Sched.---Suit for recovery of maintenance allowance, dowry articles and delivery expenses---Scope---Petitioner assailed orders passed by courts below whereby maintenance of Rs. 4000 per month was awarded to his wife for iddat period; minor was held entitled to receive Rs. 5000 per month; Rs. 20,000 were awarded to the wife of petitioner as delivery and medical treatment charges and the wife was further held entitled to recover Rs. 1,50,000 as alternate price of dowry articles---Validity---Maintenance for the iddat period was hardly sufficient to meet the needs of petitioner's wife---Petitioner could not show that Rs. 5000 were beyond his earning capacity---Rupees 5000 were hardly sufficient to meet the day-to-day expenses of the minor---No exception could be taken to the award of Rs. 20,000 as delivery and medical treatment charges---Petitioner although had deposed that dowry articles' receipts were fake but his witness had deposed that the dowry articles were brought on a pick-up---Appellate Court had rightly held the wife entitled to recover Rs. 1,50,000 as an alternate price of dowry articles---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Findings of fact---Scope---High Court, while exercising constitutional jurisdiction, does not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by the said courts record or any illegality if pointed out.

Peshawar High Court

YLR 2020 PESHAWAR HIGH COURT 58 #

2020 Y L R 58

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

ABDUL MAJEED---Petitioner

Versus

MUHAMMAD ILYAS and 3 others---Respondents

Writ Petition No.1097-D of 2018 with C.M. No.1253-D of 2018, decided on 9th May, 2019.

Civil Procedure Code (V of 1908)--

----O. I, Rr. 3 & 10---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Impleading of party---Scope---Application for impleadment as a party claiming to be owner in possession of suit property which was accepted---Validity---Impleadment of applicant as defendant was justified for the reason that unless and until he was impleaded the question of title of plaintiff could not be effectively adjudicated upon---Plaintiff would not be able to get possession of suit property unless he impleaded the present applicant as defendant---Generally, in suits for specific performance, only parties to the contract or those against whom contract, could to any extent, be enforced was to be impleaded as defendants---Any person claiming an interest adverse to the vendor and vendee could also be impleaded in such suit---Petitioner was a necessary party to the suit and without being impleaded no effective decree could be passed in the suit---Object of impleading a person who was to be bound down was only to secure full and effective relief---Plaintiff had a right to claim relief not only against a person against whom a relief was directly prayed for but even against a person whose presence would make a relief complete---No illegality or irregularity or jurisdictional defect had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed in limine accordingly.

Shivashankareppa Mahadevappa Parakanhatti v. Shivappa Parappa Kutpati and others AIR 1943 Bom. 27; A.V.K. Mayappa Chettiar v. N.K.L. Kalandaivelu Chettiar and another AIR 1926 Mad. 597 and Ramkarishna Sardar v. Sree Kanta Mondal and another AIR 1929 Cal. 667 rel.

YLR 2020 PESHAWAR HIGH COURT 95 #

2020 Y L R 95

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

MAROOF and others---Petitioners

Versus

DAUD and others---Respondents

C. R. No. 232-A of 2018, decided on 19th November, 2018.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Time-barred suit---Scope---Plaintiffs filed suit for declaration claiming that their predecessor had purchased half share in the suit property through mutation from the defendant, which mutation was later on cancelled---Plaintiffs maintained that the defendant promised their predecessor to transfer the suit property whenever he would be in a position to do so but failed to honour his promise---Trial Court and appellate court dismissed the suit of plaintiffs---Validity---Claim of plaintiffs was based on mutation which was cancelled and the predecessor of plaintiffs was in knowledge of cancellation of mutation and he was required to have approached the competent court of jurisdiction---Predecessor of plaintiffs had failed to bring the suit in that respect, whereas the plaintiffs for the very first time had approached the court with a delay of 19 years---Plaintiffs could not establish their claim through cogent, reliable and confidence inspiring evidence, thus on merits as well as on limitation, the suit was rightly dismissed by the courts below--Revision petition was dismissed, in circumstances.

YLR 2020 PESHAWAR HIGH COURT 110 #

2020 Y L R 110

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar, J

Mian DIN MUHAMMAD and others---Appellants

Versus

Mst. ZAITOON and others---Respondents

R.F.As. Nos.74-D, 68 and 76 of 2017, decided on 6th December, 2017.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration---Inheritance---Will/gift---Proof---Plaintiff was allegedly deprived of her share by her brothers---Contention of plaintiff was that she was entitled to her share from the legacy of her father and impugned Will deed and Gift were against law and based on fraud---Suit was decreed by the Trial Court---Validity---Right to Will could not be allowed to be exercised to the detriment of rights of other legal heirs---Only one marginal witness of Will had been produced who was unaware with regard to the contents/details of said instrument---Defendants had failed to prove the alleged will, in circumstances---Impugned gift deed was got executed at the time when plaintiff was minor and said document had lost its efficacy---Plaintiff had become owner of suit property to the extent of her share immediately after the death of her father---Defendant being co-owner was not entitled to alienate more than his entitlement from the suit property---Protection extended to the transaction made in favour of alleged bona fide purchaser by the Trial Court was against the law and vested rights of legal heirs who never consented to such transaction---Any transaction made by the brothers of plaintiff beyond their entitlement was void and ineffective upon the rights of other legal heirs and same could not be protected---Appeal was disposed of accordingly.

1995 SCMR 266; 2009 SCMR 589; 1990 CLC 1205; PLD 2003 SC 818; 1997 SCMR 643 and PLD 1973 Note 13 ref.

Abdul Rehman and 2 others v. Zainab Bibi 2010 MLD 978; Rab Nawaz and another v. Akbar Ali and others 1989 SCMR 93; Ali Gohar v. Sher Ayaz 1989 SCMR 130 and Muhammad Hussain v. Wahid Bakhsh 2004 SCMR 1137 rel.

Salimullah Khan Ranazai for Appellants.

Ahmad Ali Khan, Zafar Iqbal Awan, Sheikh Iftikhar-ul-Haq, S. Tehsin Alamdar, Sanaullah Shamim, Akhtar Hussain Qureshi, Ghulam Muhammad Sappal and Muhammad Jehangir Awan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 128 #

2020 Y L R 128

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

ABDUL AHAD alias ADREES---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 73-M of 2018, decided on 12th March, 2019.

Penal Code (XLV of 1860)---

----Ss. 324, 337, 353, 427, 148 & 149---Anti Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Constitution of Pakistan, Arts. 4 & 10-A---Attempt to commit qatl-i-amd, causing shajjah, assault or criminal force to deter public servant from discharge of his public duty, mischief causing damage to amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing illicit weapon---Appreciation of evidence---Benefit of doubt---Fair trial---Scope-Prosecution case was that SHO had made a report that on the day of incident, while they were escorting the then Minister, some unknown culprits started firing at them with the aim of murderous assault, as a result of the said firing, the Minister as well as the other persons sustained injuries--- Record showed that prosecution had produced ten witnesses, however, none of the witnesses was cross-examined for the reason that the present appellant was not represented through an Advocate---On the basis of one sided prosecution evidence and the fact that the present appellant had pleaded guilty, he was convicted and sentenced through the impugned judgment by the Trial Court---Appellant was not provided appropriate opportunity to defend himself before the court---Under Arts. 4 & 10-A of the Constitution, it was inalienable right of every citizen to be treated in accordance with law and he/she had a right to a fair trial and due process of law to face any criminal charge---Trial Court was to ensure that the interest of the accused facing criminal prosecution was fully protected---If the accused was unable to engage a counsel or the court felt that the accused could not represent himself, it was duty of the court to provide the assistance of the competent legal practitioner to the accused to defend himself, because it was his Fundamental Right in view of Art. 10-A of the Constitution to have the opportunity of a fair trial and due process of law---Impugned judgment, in circumstances was not sustainable---Appeal was allowed by setting aside the judgment and the case was remanded to the Trial Court for de novo trial.

Kalyani Bask v. M.S. Sampoornam 2007 Indian Supreme Court 258; Rattiram v. State of M.P. through Inspector of Police AIR 2012 SC 1285 and Muhammad Hussain v. The State (Govt. of NCT) Dehli 2012 SCMR 1610 rel.

Rahimullah Chitrali for Appellant.

Wilayat Ali Khan, A.A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 151 #

2020 Y L R 151

[Peshawar]

Before Ahmad Ali, J

SAIF ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous/B.A. No. 2658-P of 2019, decided on 27th September, 2019.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21---Possession of narcotics---Power of entry, search, seizure and arrest without warrant---Bail, grant of---Delay in sending samples to Laboratory---Non-association of independent witnesses---Completion of investigation---Further inquiry--- Scope--- Accused was apprehended by local police while having 4000 grams charas in his possession---Being a case of prior information, proceedings were conducted by an Assistant Sub-Inspector of Police which was violative of the governing provisions of Control of Narcotic Substances Act, 1997---Samples separated for Forensic Science Laboratory were sent after delay of 6 days, which also made the prosecution case doubtful--- No independent witness was associated with the recovery of contraband---No statement of driver or cleaner of the bus, from which accused was apprehended, was recorded by the Investigating officer---Accused was juvenile as he had placed on record his school leaving certificate---Investigation in the case was complete and he was not required to the prosecution---Case of accused squarely fell under subsection (2) of S. 497, Cr.P.C. calling for further probe into the matter---Bail was allowed, in circumstances.

2012 PCr.LJ 1901 rel.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics---Bail---Scope---Quantity of contraband and the expected quantum of punishment to be awarded at the trial, has to be taken into account while allowing bail to the accused persons.

2013 MLD 1703 ref.

----S. 497---Bail---Scope---Observations by the High Court while disposing of bail applications are not to be considered during trial of the accused.

Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1845 rel.

Abid Ayub for Petitioner.

Ms. Aman Shahzad, Standing Counsel for the State.

YLR 2020 PESHAWAR HIGH COURT 188 #

2020 Y L R 188

[Peshawar]

Before Muhammad Naeem Anwar, J

PERVEZ ALI---Petitioner

Versus

Mst. RAZIA BEGUM and 2 others---Respondents

Writ Petition No. 4744-P of 2019, decided on 30th August, 2019.

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

----S.5, Sched.---Dower and maintenance allowance, recovery of---Wife filed suit for recovery of dower and maintenance allowance---Wife, filed application to the effect that she had received an amount of Rs. five lac through cheque as her maintenance allowance and rest of the claim would be settled privately---Joint statement of both the parties was recorded and suit was disposed of on 27.9.2014---Wife on 15.5.2015, filed suit for recovery of dower as husband never turned up for settlement---Said suit was partially decreed---Validity---Record revealed that the wife had sought recovery of possession of agricultural property along with a constructed house, which, as per her contention, were given to her in lieu of her dower---Husband-defendant in his written statement had admitted that he had given his share from his ancestral property to the wife along with constructed house---Factum of deed dated 16.3.1985, on the basis of which dower had been paid, was denied---Petitioner/husband had also asserted that the house was jointly owned by him with brothers and the amount to the extent of her share in the house was paid to her---Petitioner in his written statement, though, had admitted the fixation of dower, but had taken the stance that the respondent-wife to whom the property was transferred, in lieu of dower, had alienated it to another person---Respondent/wife while appearing as witness had reiterated the factum of fixation of dower and non-payment thereof, which portion of the statement remained un-rebutted, which would be considered to have been admitted---Similarly, the respondent-wife had received the amount of share in the house---Evidently, no property was ever mutated in the name of the respondent-wife, as such, she could never transfer it to other person---Petitioner/husband could not produce any evidence regarding payment of share in the house to the respondent-wife---Petitioner/ husband had failed to prove that any property either constructed or otherwise was given to the respondent-wife---Constitutional petition being without any merit was dismissed in limine.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Claim of dower---Jurisdiction of Family Court---Scope---Where immoveable property is claimed as dower, Family Court has exclusive jurisdiction in such matter.

Liaqat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122 rel.

Qazi Zakauddin and Hidadayat Ullah Khan for Petitioner.

YLR 2020 PESHAWAR HIGH COURT 229 #

2020 Y L R 229

[Peshawar]

Before Ijaz Anwar and Wiqar Ahmad, JJ

SHAH FAISAL and another---Petitioners

Versus

The CHANCELLOR, ABDUL WALI KHAN UNIVERSITY, MARDAN

and 5 others---Respondents

Writ Petition No. 1154-P of 2019, decided on 30th August, 2019.

Abdul Wali Khan University Mardan Semester Rules and Regulations---

----R. 4.4---Admissions of University employees, restriction of--Retrospectivity--Vested right---Locus poenitentiae--- Principle--- Petitioners were employees at the University and were aggrieved of refusal to continue higher education via subsequent notification at the University--University assailed that petitioners had not sought "No Objection Certificate" to admission for higher education---Validity---Petitioners could neither show that they had ever applied through proper channel or had got "No Objection Certificate" or "leave certificate" from competent authority before applying for admission---Getting of admission by petitioners did not clothe them with a vested right when it was obtained in violation of University Rules and Instructions---Asserted right not obtained in accordance with law could not be termed as vested right, preventing authorities from exercising their locus poenitentiae---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 and Nazir Ahmad Panhwar v. Government of Sindh 2005 SCMR 1814 rel.

M.Asif Yousafzai for Petitioners.

Mansoor Tariq for Respondents.

YLR 2020 PESHAWAR HIGH COURT 280 #

2020 Y L R 280

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD RASOOL---Petitioner

Versus

MUHAMMAD REHMAN and 5 others---Respondents

Writ Petition No. 151-B of 2015, decided on 20th June, 2019.

Specific Relief Act (I of 1877) ---

----S. 9---Suit for possession of immovable property---Requirements---Entries of ownership for the purpose of a suit under S. 9 of Specific Relief Act, 1877 were not be considered and only possession was material---Entries of Khasra Girdawari had presumption of correctness to ascertain possession---Question of title in such suit could not be taken into consideration and same could be decided in a suit for declaration---Plaintiff had been dispossessed from the suit land and entries of Khasra Girdawari had been altered to his disadvantage---Impugned judgments and decrees passed by the Courts below were not based on proper appreciation of evidence on record which were set aside and suit was decreed---Constitutional petition was allowed, in circumstances.

2017 SCMR 1645 rel.

Aman Ullah Khan Khattak for Petitioner.

Abdul Nawaz Khan Khattak for Respondents.

YLR 2020 PESHAWAR HIGH COURT 289 #

2020 Y L R 289

[Peshawar]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

SADIQ IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.216-P of 2019 with Criminal Miscellaneous No. 113-P of 2019, decided on 20th August, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that three packets of charas gardha wrapped in yellow scotch tape, which was found to be 1240 grams each, were recovered from the vehicle of the accused---Five grams charas was separated from each packet for chemical analysis and sealed into parcels---Remaining stuff was also sealed into another parcel---First Information Report was registered pursuant to the recovery---Record was silent as to whom the samples were handed over for onward transmission to Forensic Science Laboratory---Recovery was made on 09.03.2018, the samples were received by the Incharge Forensic Science Laboratory on 13.03.2018---Nothing was on the record as to where the said samples were lying in the interregnum period---Record transpired that accused-appellant was a serving Police Official and as stated by him in his statement recorded under S. 342 Cr.P.C., he had remained gunner with the complainant---Prior to the occurrence and also on the day of occurrence, some hot words were exchanged between the complainant and accused where after the accused-appellant was involved in the present case---Statement of accused-appellant found support from the statement of prosecution witness wherein he had admitted in his statement that the accused-appellant had remained gunner with the complainant---Statements of said prosecution witness and accused-appellant showed that the complainant was already carrying a grudge against the accused-appellant with ulterior motives thus, the conviction and sentence recorded by the trial Court could not be sustained---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

Noor Alam Khan for Appellant.

Mujahid Ali Khan, Addl. A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 311 #

2020 Y L R 311

[Peshawar]

Before Lal Jan Khattak and Mohammad Ibrahim Khan, JJ

JAVED and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 742-P of 2019, decided on 1st August, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Non-production of material witness and Register maintained at police malkhana---Effect---Prosecution case against accused persons was that they were sitting in a car, on search of the car 10 packets of charas, concealed in its secret cavities, were taken out---Prosecution case was that murasila was drafted and handed over to a police official for its transmission to police station for lodging formal FIR but the said police officer was not produced as a witness---Cross-examination of prosecution witness revealed that recovery memo. and card of arrest were also handed over to the said police official by the complainant---Production of said police official as prosecution witness was necessary---Prosecution had also failed to produce an extract from the relevant Register, which was kept at police malkhana for entering therein the recovered and sent contraband---Recovery was neither effected from personal possession of the accused persons nor the same was taken out of the vehicle on their pointation---Prosecution had not proved its case against the accused persons beyond reasonable doubt, in circumstances---Appeal was allowed, convictions and sentences of the accused persons were set aside.

Ms. Zohra Durrani for Appellants.

Mujahid Ali Khan, A.A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 317 #

2020 Y L R 317

[Peshawar]

Before Qaiser Rashid Khan, J

YOUSAF ISLAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 22-P of 2019, decided on 6th May, 2019.

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

----S. 231----Re-summoning of witness on alteration of charge---Scope---Re-summoning of prosecution witnesses---Cross-examination in context of altered charge---Court had wide powers to alter the charge at any time before the pronouncement of the judgment however, the same should in no manner cause any prejudice to the accused---In order to advance the object of fair trial, it was incumbent upon the prosecution to have re-summoned the witnesses and provide an opportunity to the accused to cross examine them as they had not been examined in the context of the altered charge---Trial Court had committed illegality while dismissing the application of the accused for re-summoning of the witnesses and providing the defence an opportunity to cross-examine them and thereby causing prejudice to the accused---Revision was dismissed.

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

----S. 4(c)---Charge---Object and purpose---Purpose of charge was to tell and convey to accused person as precisely and concisely as possible the criminal case in which he had to face trial and thus must communicate to him with sufficient clarity and certainty what the prosecution intended to bring home against him regarding which he would have to defend himself.

Muhammad Riaz for Petitioner.

Muhammad Sohail, A.A.G. for the State.

Mehboob Ali Watozai for the Complainant.

YLR 2020 PESHAWAR HIGH COURT 360 #

2020 Y L R 360

[Peshawar]

Before Rooh-ul-Amin Khan and Sahibzada Asadullah, JJ

MUHAMMAD HUSSAIN alias MUSHFIQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.144-P of 2017, decided on 11th September, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradiction---Effect---Accused was charged for committing murder of the son of complainant by firing---Motive for the occurrence was stated to be a money dispute between the complainant and the accused---Record showed that the complainant was present in his house and received information regarding murder of his son, where after he went to the spot and came to know that his son who had left in the morning for selling vegetables was killed by the accused with firearm---Complainant while appearing as witness had stated before the court that on the day of occurrence he was present in his house where he was informed by his son about the murder of his deceased son by the accused---Complainant came out of his house and saw the dead body of his deceased son brought by elders of the locality---Police came to the place of occurrence to whom he reported the matter---Said improvement was unbelievable for the reason that had witness son of complainant been present with the deceased, why the complainant did not mention so while lodging the FIR---Needless to say that complainant did not disclose the source of information in his report, rather he subsequently introduced that he was informed by his son about the occurrence, which appeared to be an exegration of the complainant just to cover an unseen occurrence---During cross-examination, complainant stated that besides his son, one other witness also informed him---If said deposition was believed then why son of complainant did not report the matter to the police or signed/thumb impressed the report as rider of the same---Said witness further stated that he and his deceased brother were about 20 paces away from the accused at the time of following him, while his brother was ahead of him---Post-mortem report negated the said version for the reason that the Medical Officer mentioned the entry wound on the back side of the left chest and exit wound on the right side front of the chest, which was not possible as according to witness, he and his deceased brother were following the accused at the time of occurrence---Medical Officer in his cross-examination, negated the version of witness, by stating that the bullet hit from medium range which meant that the same was fired from 1 to 5 feet---Site plan showed the distance between the appellant and the deceased as ten feet---Said facts created doubt in a prudent mind regarding the mode and manner in which the occurrence had taken place---Place of occurrence was a busy bazaar and no one was examined to confirm that in fact the occurrence took place at the time, place and in the manner so presented---Circumstances established that prosecution failed to prove the charge against the accused 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.

Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152 and Akhtar Ali's case 2008 SCMR 6 rel.

(b) Criminal trial---

----Witness---Improvement in testimony---Scope---Improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Saleem's case 2011 SCMR 474; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

----Witness---Child witness---Statement of a minor---Reliance---Scope---Evidence of a child witness was a delicate matter and normally it was not safe to rely upon it unless corroborated---Great care was to be taken in regard to the evidence of a child---Element of coaching might not involve as children were most untrustworthy class of witnesses being of tender age.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive, proof of---Motive of the occurrence as stated by complainant was that few days back, the accused demanded an outstanding amount of Rs.14000/- from deceased but deceased refused to pay being penniless---Complainant explained in cross-examination that the debt amount was not of the accused rather of another person---In the present case, the accused had nothing to do with the alleged amount that too in a situation when the person whose debt was outstanding had died and that was far from believing that for such meagre amount the accused would murder the deceased---Motive as alleged was of no avail to the prosecution, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt, if found reasonable, would be sufficient to acquit the accused, giving him/them benefit of doubt---Bundle of doubts were not required to extend the legal benefit to accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730 and Sardar Ali v. Hameedullah and others 2019 PCr.LJ 186 ref.

Shabbir Hussain Gigyani for Appellant.

Syed Sikandar Hayat Shah, A.A.G. and Javed Ali Asghar for the Complainant.

YLR 2020 PESHAWAR HIGH COURT 441 #

2020 Y L R 441

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

QABEL REHMAN and another---Petitioners

Versus

Mst. BIBI HIJRA and 9 others---Respondents

Civil Revision No. 124-B, decided on 16th September, 2019.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Fraud---Effect---Husband of defendant lady embraced Shahadat and "Shuhada Package" was approved---Plaintiff filed suit that he was son of defendant lady---Suit was dismissed concurrently--- Validity---Plaintiff had committed fraud with the design of securing some unfair advantage over another---Fraud did vitiate the most solemn proceedings---Nothing was on record as to why defendant had disowned the plaintiff as her son---Defendant had entered name of plaintiff in the record to have share in the inheritance of deceased---Plaintiff had levelled adverse allegations of immorality on the part of defendant lady---Had plaintiff been son of defendant he could not have implicate his mother with such allegations---Plaintiff had played fraud with Pardanasheen lady, in circumstances---If plaintiff could be treated as adopted son of defendant even then he had no right in any part of legacy of deceased---Defendant lady had been made to suffer for long only for getting lawful emoluments of her deceased husband on the part of plaintiff---Revision was dismissed with costs, in circumstances.

Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Muhammad Younis Khan and 12 others v. Government of NWFP though Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Ghulam Farid and another v. Sher Rehman through LRs 2016 SCMR 862; Mst. Banori v. Jilani through legal heirs and others PLD 2010 SC 1186 and

rel.

(b) Fraud---

----Fraud did vitiate the most solemn proceedings.

Khush Amir and Mehboob Khan for Petitioner.

Bughdad Khan and Abdus Salam Kundi, Law Officer, NADRA for Respondents.

YLR 2020 PESHAWAR HIGH COURT 464 #

2020 Y L R 464

[Peshawar]

Before Waqar Ahmad Seth, C.J.

YASIR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 1669-P of 2019, decided on 1st August, 2019.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21---Possession of narcotics---Power of entry, search, seizure and arrest without warrant---Bail, grant of---Rule of consistency--- Applicability--- Scope---Non-production of case property before court---Seizure by officer below the rank of Sub-Inspector---Effect---Accused was alleged to have been the driver of a vehicle from the secret cavities of which 7000 grams of charas and 9000 grams of opium was recovered---Co-accused, who got the vehicle on rent, had already been released on bail---Case of accused was hit by the rule of consistency as the principal co-accused had already been released by the court---Seizing officer was the Assistant Sub-Inspector, who was below the rank of Sub-Inspector and was not authorized to seize such narcotic drugs in view of subsection (c) of S. 21 of Control of Narcotic Substances Act, 1997---Case property was not produced before the competent court of law during trial, which was a mandatory requirement under the Control of Narcotic Substances Act, 1997---Accused could not be booked for the commission of offence in the absence of case property---Petition for grant of bail was accepted, in circumstances.

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

----S. 497---Bail---Heinous nature of offence---Scope---Mere heinousness of crime will not disentitle accused to the concession of bail.

Shabina Noor and Fawad Afzal Khan for Petitioner.

Arshad Ahmad Khan, A.A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 482 #

2020 Y L R 482

[Peshawar]

Before Ijaz Anwar and Ahmad Ali, JJ

STATE through Prosecutor General Accountability, NAB---Appellant

Versus

MUHAMMAD HAMAYUN--- and 4 others---Respondents

Eh. Cr. A. No. 61-P of 2018, decided on 20th August, 2019.

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

----Ss. 9(vi) & 9(xii)---Misuse of authority---Conspiracy with a holder of public office---Appreciation of evidence---Scope---Accused persons were charged for misusing their authority being government officials--- Prosecution alleged that accused persons paid funds to the contractor for the work, which in fact was not executed by him on the spot and fake entries were made in the measurement books without spot inspection---Star witness produced by the prosecution admitted that the contract was a project for construction of 10 km road and in response to a question put by the defence, he could not point out even a single document from the record of the project to show that either the work had not been executed by the contractor or there was any problem regarding the quality of the work---Said witness admitted that the project was an ongoing project and 9 km road had already been constructed on the spot whereas, 1 km road was yet to be constructed---Bills exhibited during the course of examination of said witness pertained to the payments made for the work already done on the spot---Said witness further admitted that there was nothing on record, which showed that the construction of the road was not carried out according to the specifications as per the contract---Prosecution could not prove through any document that excess payments were made to the contractor or the contract was granted due to some extraneous considerations---Minute analysis of the entire evidence and record placed on file suggested that the project was still ongoing and 9 km road had already been constructed on the spot and delay in construction of the road was occasioned due to law and order situation in the area---Prosecution had failed to establish the charge against the accused persons through cogent, reliable, confidence inspiring evidence and authentic documentary record---Criminal appeal, being without merits, was dismissed in limine.

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

----S. 417---Appeal against acquittal---Scope---Where Trial Court has recorded order of acquittal then presumption of innocence of the accused doubles thus, unless and until it is shown that the acquittal order is perverse, in disregard of law and is against the settled principles with regard to the appraisal of evidence, interference in such an order of acquittal by the High Court would be unjustified.

Muhammad Sohail Khan Jadoon, ADGP for Appellant.

Nemo for Respondents.

YLR 2020 PESHAWAR HIGH COURT 497 #

2020 Y L R 497

[Peshawar]

Before Muhammad Naeem Anwar, J

NOOR-US-SLAM---Petitioner

Versus

IHSAN ULLAH and 22 others---Respondents

C. R. No. 980-P of 2019 with C.M. No.1221-P of 2019, decided on 20th September, 2019.

Civil Procedure Code (V of 1908)--

----S. 12(2), O. XXIII, R.1 & O. VI, R. 4---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S. 13---Contract Act (IX of 1872), S.214---Suit for possession through pre-emption--- Appeal---Compromise on behalf of attorney---Fraud and misrepresentation---Suit was dismissed against which appeal was filed wherein attorney of defendant got recorded his statement that he had no objection on acceptance of appeal and suit was decreed---Applicant filed application for setting aside of judgment and decree on the ground that fraud and misrepresentation had been committed---Application for setting aside of impugned judgment and decree was dismissed---Validity---Petitioner was bound to plead, explain and mention the mode and manner in which fraud was played before the Court and facts were misrepresented---Applicant had not given factum of fraud and misrepresentation in the application---Attorney was required to get permission of principal whenever an act was to be done on the basis of powers so delegated but when said powers had not been disputed then no such permission from principal was required---Statement of attorney had been recorded on behalf of principal within the powers so delegated and he had stated that he had received the sale consideration of suit property---Applicant had failed to prove the fact of misrepresentation before the Court below at the time when statement of his attorney was recorded---Attorney was equipped with all the powers of principal to plead before the Court---Attorney had been authorized with power of attorney executed in his favour to enter into compromise on behalf of principal---Principal could not plead otherwise once the powers had been given and admitted by him in favour of attorney---Revision was dismissed in limine, in circumstances.

Mst. Zaitoon v. Mst. Rehmi through L.Rs. 2005 MLD 978; Nek Amal v. Dr.Suhail Baluch and others 2017 MLD 711; 2000 SCMR 296; Anwar Hayat and others v. Durre Sameen and others 2012 CLC 1536 and Warraich Zarraj Corporation v. F.M.C. United 2006 SCMR 531 rel.

Ajmal K. Mohamand for Petitioner.

YLR 2020 PESHAWAR HIGH COURT 515 #

2020 Y L R 515

[Peshawar]

Before Ishtiaq Ibrahim and Ahmad Ali, JJ

JABIR ULLAH---Appellant

Versus

SAID NAWAB and another---Respondents

Criminal Appeal No. 1036-P of 2018, decided on 20th September, 2019.

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

----S.302(b)---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt--- Unwitnessed occurrence---Prosecution case was that the accused was charged for committing murder of his daughter/wife of accused---Complainant had stated that as the accused disappeared after the occurrence, so he guessed that accused administered poison to his wife---Complainant was not an eye-witness to the occurrence nor he had noticed the accused while administering any poisonous substance to his wife---Witness to the recovery memo of blood-stained garments and samples of the deceased negated the stance of complainant, who earlier stated that there was no injury on the body of the deceased---Post-mortem report of deceased showed the duration between time of death and examination as 06-12 hours---Record was silent as to why the accused did not leave the house at that very time after administering poison to the deceased and why inmates of the house did not notice the same---Silence of the inmates of the house also created doubts and suggested that the occurrence had not taken place in the mode and manner as alleged by the complainant---Neither, any incriminating articles had been recovered from him nor on his pointation---Scrupulous perusal of record revealed that the ocular evidence in the case was based on the statements of complainant and his wife, who were examined in the case, respectively, but their testimonies were not consistent, trustworthy and confidence-inspiring---Glaring contradictions existed in their statements, which proved that occurrence had not taken place in the mode, manner, time and place as alleged by the prosecution---Non-recovery of any incriminating substance from the place of occurrence as well as from the accused proved that the occurrence had not taken place in the mode and manner as alleged by the prosecution---Circumstances established that Trial Court had fully appreciated the evidence both, ocular and circumstantial, in its true perspective---Appeal being bereft of any merit was dismissed in limine.

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

----S. 417---Appeal against acquittal---Presumption---Once an accused was acquitted, he earned double presumption of his innocence, which could not be taken away from him unless it was shown that the judgment of acquittal was based on surmises or presumptions.

YLR 2020 PESHAWAR HIGH COURT 529 #

2020 Y L R 529

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

SAMI ULLAH and 9 others---Petitioners

Versus

AQAL MAND and others---Respondents

C.R. No. 7-M with C.M. 10 of 2015, decided on 14th March, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 67 & 77---Suit for declaration---Limitation---Inheritance---Secondary evidence, production of---Requirements--- Gift--- Proof of---Procedure---Contention of plaintiff was that gift mutation was based on fraud and misrepresentation whereas defendants had contended that plaintiff had gifted suit property in their favour---Suit was decreed concurrently---Validity---Defendants had alleged that they had lost original deeds and had produced photocopy thereof without obtaining permission to produce secondary evidence---Even attested copies of official record were never produced by the official concerned from the official custody---Evidence produced by the defendants could not be given preference over the evidence of plaintiff in circumstances---Defendants were bound to prove transaction of impugned mutation by producing at least the marginal witnesses of the same but they had not produced the said witnesses---Defendants had failed to establish alleged gift through impugned mutation---Right of inheritance could not be defeated on technicalities---Plaintiffs were direct legal heirs of their predecessor and they had claimed their shari share in the suit property during their life time---Suit was within time---Revision was dismissed, in circumstances.

Abdul Rahim and another v. Mrs. Jannatav Bibi and 13 others 2000 SCMR 346; Barkat Ali through LRs and others v. Muhammad Ismail through LRs and others 2002 SCMR 1938; Muhammad Idrees v. Mst. Zeenat Bibi 2005 SCMR 1690; Islam-ud-Din through LRs and others v. Mst. Noor Jehan through LRs and others 2016 SCMR 986; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Zohra Bibi and another v. Haji Sultan Mehmood and others 2018 SCMR 762 rel.

Sajjad Anwar, Qazi Midrarullah, Muhammad Ibrahim and Farooq Khan for Petitioners.

Abdul Halim Khan, Arshad Iqbal and Mian Hussain Ali for Respondents.

Date of hearing: 14th March, 2019.

YLR 2020 PESHAWAR HIGH COURT 589 #

2020 Y L R 589

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

ARIF HUSSAIN---Appellant

Versus

The STATE through A.A.G. and 2 others---Respondents

Criminal Appeal No.101-M and Criminal Revision No. 32-M of 2018, decided on 18th February, 2019.

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

----Ss. 302(b), 324, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that the accused and co-accused committed murder of the nephew of the complainant and also injured the brother of deceased through dagger blows---Motive for the occurrence was disclosed to be that both the accused used to tease the deceased---Record showed that the complainant was not the eye-witness to the occurrence and at the relevant time he was not available at the place of occurrence---Complainant had lodged the FIR at 19:35 hours, where he did not mention that on whose information he had narrated the mode and manner of the occurrence---Complainant did not mention the name of eye-witness in his first information report---Mode and manner of the occurrence had been narrated by eye-witness and injured/eye-witness to the effect that at the relevant time the deceased and injured were going towards the house of their grandfather, however, at 'Isha Vela' at about 7:00 p.m. when they reached near a hotel, there the accused emerged and co-accused got hold of deceased and accused inflicted dagger blows at deceased---In order to save his brother, the injured got hold of accused, in the meanwhile, co-accused released the deceased and took the dagger from accused and inflicted a dagger blow at the back of injured---In support of the prosecution case, injured appeared as witness and had narrated the story in his court statement---Although, injured had not mentioned about the presence of the eye-witness in his examination-in-chief, however, in cross-examination he had fully explained the incident by mentioning eye-witness not only to have seen the occurrence but had stated that the said eye-witness and some other persons had taken him to the hospital---Presence of eye-witness at the spot was also established from the medical evidence which clearly mentioned that deceased was brought by eye-witness and was identified by Police Officer---Said eye-witness appeared as witness, who had fully supported the case of prosecution---Said eye-witness was not related to the complainant and worked as Police Constable and had not only justified his presence at the spot but the medical report also established that he was indeed a natural and an independent eye-witness---Defence had not given any suggestion regarding his interest in the prosecution of the accused-appellants---Non-mentioning of his name in the FIR by complainant would not lead to an inference that he was not available at the spot---Evidence of eye-witness, more particularly in circumstances that despite the lengthy cross-examination by the defence, he remained consistent and firmed in his testimony could not be disbelieved---Said eye-witness had mentioned exact places where at the relevant time, the complainant-party as well as the accused-appellants were present---Injured/eye-witness had also supported the prosecution case his presence at the spot was also established--Appellant, in circumstances, could not have been substituted for the real culprit---Medical evidence was also in line with the prosecution case---Presence of the accused-appellant on the spot was further established from his medical report which was exhibited through---Medical Officer, who had examined him Accused-appellant had also sustained injuries during the scuffle which further supported the prosecution case---In the present case, accused-appellant had been assigned specific role of causing dagger blows upon the vital parts of body of the deceased--- Prosecution had established its case beyond any shadow of doubt against the accused persons---Mere fact that at the time of offence the accused-appellant was below the age of 18 years was no ground for further reduction of sentence---Appeal was dismissed, in circumstances.

Muhammad Mushtaq v. The State PLD 2001 SC 107; Muhammad Basharat v. The State 2003 SCMR 554; Iftikhar Ali v. The State 1998 PCr.LJ 2022; Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Overwriting on the Murasila---Effect---In the present case, the offence was committed at 19:00 hours, whereas it was reported at 19:35 and the FIR was registered at 20:20 hours on the same date---Overwriting appeared on the 'Murasila' relating to the time of occurrence and the time of report---Said overwriting prima facie showed that probably time of occurrence was brought in conformity with the time in FIR---Said overwriting, however, did not affect the prosecution case, because the time of report and registration of FIR had been mentioned without any overwriting---Time of examination of the deceased (when injured) also appeared in the medical report as 7:30 p.m.---Said overwriting was inconsequential and did not appear to be the result of manipulation.

----Ss. 302(b), 324, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Recovery---Scope---In the present case, dagger was recovered on the pointation of both the accused in presence of its marginal witnesses---Recovery had been conducted on the joint pointation, which was prima facie illegal---Recovery was only a corroborative piece of evidence.

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

----Ss. 302(b), 324, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Circumstantial evidence---Scope---If the eye-witnesses remained firm and straight-forward in their testimony before the court then further corroboration from circumstantial evidence would not be required.

Shafaat Ali and others v. The State PLD 2005 SC 288 rel.

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

----Ss. 302(b), 324, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Source of light---Scope---Occurrence had allegedly taken place at 7:00 p.m. and the bulb, source of light was not recovered by the Investigation Officer---Record/evidence showed that the offence was committed in Bazar/market in front of a hotel and in the normal course of business in Bazar the presence of light i.e. bulb could not be ruled out.

(f) Juvenile Justice System Act (XXII of 2018)---

----Preamble--- Juvenility--- Scope---Juvenility of an accused/person alone was not sufficient for his/her acquittal---Case had to be decided in view of its peculiar facts and circumstances keeping in view the gravity of the offence having been committed by the accused.

Razaullah and Sahibzada Assadullah for Appellant (in Criminal Appeal No. 101-M of 2018).

Rahim Shah, Asstt. Advocate-General for the State (in Criminal Appeal No. 101-M of 2018).

Rashid Ali Khan for the Complainant/Respondents (in Criminal Appeal No. 101-M of 2018).

Rashid Ali Khan for the Petitioner (in Criminal Revision No. 32-M of 2018).

Rahim Shah, Asstt. Advocate-General for the State (in Criminal Revision No. 32-M of 2018).

Razaullah and Sahibzada Assadullah for Respondent/convict (in Criminal Revision No. 32-M of 2018).

Date of hearing: 18th December, 2019.

YLR 2020 PESHAWAR HIGH COURT 654 #

2020 Y L R 654

[Peshawar]

Before Rooh-ul-Amin Khan and Ahmed Ali, JJ

DILAWAR---Appellant

Versus

QASIM ALI and 2 others---Respondents

Criminal Appeal No. 536-P and Murder Reference No. 15 of 2018, decided on 8th October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction of---Mitigating circumstance---Accused was charged for committing murder of maternal uncle of the complainant by firing---Motive behind the occurrence was that the accused had suspected the deceased for having received his head money---Record showed that matter was reported within one and half hour of the occurrence, wherein accused was directly and singularly charged for murder of the deceased---Accused was co-villager and neighbour of the complainant and was well known to him prior to the occurrence---Being a broad-daylight occurrence, question of mistaken identity did not arise---Complainant reiterated the same story as set forth by him in his initial report and once again charged the accused singularly for murder of the deceased---Complainant stood firm by stating that site plan was prepared at his pointation by the Investigating Officer---Complainant had been subjected to lengthy and taxing cross-examination but nothing beneficial to defence could be extracted from his mouth---Witness remained stuck to his stance on each and every material aspect of the incident---Many un-explained material facts having been explained through the witness by the defence itself had strengthened the prosecution case---Presence of witness with the deceased at the time of occurrence was quite natural as the deceased was his maternal uncle and had visited with his family to the house of complainant and stayed there for two days prior to the occurrence---No evidence, whatsoever, had been brought by the defence to prove any enmity or grudge of complainant with the accused---Mere relationship of complainant with the deceased would not detract his veracity, as he had absolutely no motive of his own to involve the accused falsely by letting off the real culprit---Prosecution had successfully proved that accused had committed murder of the deceased on the day, time and place with a 30-bore pistol as alleged by the prosecution and substantiated through cogent and confidence inspiring ocular evidence, supported by medical evidence and corroborated by strong circumstantial piece of evidence---However, the motive advanced by the prosecution did not seem true, thus, the same could be taken as mitigating circumstance--- While maintaining conviction of accused, his sentence was reduced from death to imprisonment for life---Appeal was disposed of with said modification.

Khizar Hayat v. The State 2011 SCMR 429; Saeed Akhtar and others v. The State 2000 SCMR 383; Amal Sherin and another v. The State through A.G. PLD 2004 SC 371; Ghulam Muhammad and another v. The State 2017 SCMR 2048 and Haq Nawaz v. The State 2018 SCMR 21 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence and crime empties--- Reliance--- Scope--- Accused was charged for committing murder of maternal uncle of the complainant by firing---On the discovery of accused, the Investigating Officer recovered a 30-bore crime pistol from a box lying in residential room of his house---Said crime pistol was sent to the Forensic Science Laboratory for analysis whereas the empty had already been sent to the Forensic Science Laboratory---Report of Forensic Science Laboratory showed that .30-bore crime empty had been fired from the crime pistol recovered on the pointation/discovery of the accused---Said strong piece of circumstantial evidence corroborated the ocular account of complainant---No reason and circumstance had been brought on record by the defence so as to remotely suggest substitution and false implication of the accused in the present case.

----Substitution of real culprit---Scope---Substitution of real culprit charged directly and singularly was a rare phenomenon.

Allah Ditta v. The State PLD 2002 SC 52 and Muhammad Iqbal v. The State PLD 2001 SC 222 rel.

(d) Criminal trial---

----Witness---Interested/related witness---Statement of interested and related witness---Effect---Testimony of a witness, which was trust worthy and inspiring confidence could not be discarded on mere ground of his close relation with the deceased---Close relative, if proved to be the natural and truthful witness of the occurrence, could not be termed as interested witness---Statement of a witness on account of being interested could only be discarded, if it was proved that he/she had ulterior motive on account of enmity or any other consideration.

(e) Criminal trial---

----Evidence---Solitary statement of eye-witness---Scope---Conviction could be recorded in a capital charge on the basis of solitary statement, if same was true, trustworthy, confidence inspiring and was corroborated by strong circumstantial evidence.

Zar Bahadar's case 1978 SCMR 136; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Muhammad Mansha v. The State 2001 SCMR 199; Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 and Farooq Khan v. The State 2008 SCMR 917 rel.

Shabbir Hussain Gigyani for Appellant.

Mujahid Ali Khan, AAG. for the State.

Saifullah Mohmand for Respondents.

YLR 2020 PESHAWAR HIGH COURT 669 #

2020 Y L R 669

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

MUHAMMAD NAWAZ---Appellant

Versus

JAMROZ KHAN and another---Respondents

Criminal Appeal No. 785-P of 2017, decided on 16th October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about two hours in lodging the FIR---Effect---Accused was charged for committing murder of her sister and brother of complainant---Elopement of sister of accused with the deceased brother of complainant had been alleged as motive for the occurrence---Record depicted that matter had been reported after a delay of about two hours for which no explanation had been furnished by complainant or mother of the lady deceased---Such unexplained delay would be fatal for the prosecution.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of her sister and brother of complainant---Elopement of sister of accused with the deceased brother of complainant had been alleged as motive for the occurrence---First Information Report and statement of complainant revealed that complainant was not eye-witness of the occurrence---Mother of the deceased lady had also verified said report but perusal of her statement would reveal that she was also not eye-witness of the occurrence---Mother of the deceased lady deposed in her cross-examination that after 30/45 minutes of the occurrence, she informed the complainant, who reached the spot, wherefrom they shifted the dead bodies of the deceased to the hospital---Contrary, complainant had deposed that after 15/20 minutes of the occurrence he received information during his duty, on which he proceeded to his house and accompanied his mother to the hospital---No other inmate of the house of mother of deceased lady had come forward to furnish ocular account of the occurrence---Complainant had not uttered a single word about the source of information regarding culpability of the accused---Record showed that before arrival of complainant, mother of deceased lady was already present in the hospital but she did not lodge the report---Mother of the deceased lady had admitted that another brother of the accused was also annoyed on elopement of deceased lady and that she had not seen the accused on committing murder of the deceased, created serious doubt in prosecution case---Said star witness of the prosecution had neither supported the FIR nor had posed herself as an eye-witness of the occurrence---Circumstances established that the prosecution had failed to prove the guilt of the accused through cogent and confidence inspiring evidence direct or circumstantial beyond shadow of reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon---Scope---Recovery of pistol from accused and crime empties from the spot---Reliance---Scope---Delay in sending the crime weapon and empties for analysis---Effect---Accused was charged for committing murder of her sister and brother of complainant---Investigating Officer, during his cross-examination, had deposed that he arrested the accused along with pistol and to that effect he scribed daily diary, wherein he had not mentioned the pistol number recovered from the accused---Arrest of the accused had been shown during a raid on his house on the same day of occurrence and that too, keeping the crime weapon in his possession---Culprit after committing murder of two persons would not dare to wait in his house for the arrival of the police to offer his arrest---Alleged crime empties and pistol had been sent to the Forensic Science Laboratory after eleven days of the occurrence/recovery---No plausible explanation had been furnished by the prosecution that as to where the pistol and empties remained during the period of eleven days and whether those were in safe custody of a responsible officer---In absence of such explanation it could be safely held that during the interregnum period there were chances of manipulation of alleged crime pistol and empties by the local police---Besides, no independent witness had been associated with the process of arrest of the accused and alleged recovery of the crime pistol from his possession---Mode and manner of arrest of the accused being not appealable to a prudent mind coupled with the fact of sending the alleged crime empties and the pistol to the Forensic Science Laboratory with a delay of eleven days, made the evidentiary value of that piece of circumstantial evidence highly doubtful, hence would not be sufficient for recording conviction of the accused, in case of capital charge---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----S.302(b)---Qatl-i-amd---Circumstantial evidence---Scope---Circumstances were to be so inter-linked, making out a single chain, an unbroken one, where one end of the same touched the dead body and the other to the neck of the accused---Any missing link in the chain, in case of circumstantial evidence, would destroy the prosecution case and would render the same unreliable for recording a conviction on a capital charge.

Muhammad Aslam v. The State PLD 1992 SC 254 and Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing murder of her sister and brother of complainant---Recovery of blood from the spot, the last worn blood-stained garments of the deceased and unnatural death of the deceased with firearm as per post-mortem reports, could only prove the factum of murders of the deceased with firearm as alleged by the prosecution, but never told the name of culprit/killer---Such pieces of evidence were considered as corroborative evidence and were taken along with direct evidence and not in isolation. [p. 675] M

Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279 and Asadullah's case PLD 1971 SC 541 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If any single and slightest doubt is created, benefit of the same would go to the accused. [p. 676] N

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Shabbir Hussain Gigyani for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Malik Anwar ul Haq for Respondent.

YLR 2020 PESHAWAR HIGH COURT 702 #

2020 Y L R 702

[Peshawar]

Before Yahya Afridi, H.C.J. and Qaiser Rashid Khan, J

SEEMA KHAN---Petitioner

Versus

The VICE-CHANCELLOR, KHYBER MEDICAL UNIVERSITY, PESHAWAR and 4 others---Respondents

Writ Petition No.5009-P of 2017, decided on 1st March, 2018.

MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---

----Regln. 11---Khyber Medical University Examinations Regulations, 2008, Regln. 3(f)---Fifth chance to pass First Professional---Petitioner was studying in MBBS who failed to pass her First Professional Examination in four chances who sought permission from High Court to allow her to appear in fifth chance---Validity---After exhaustion of four chances to clear First Professional Part-I MBBS examination, petitioner was not eligible to appear in fifth chance---Registration of petitioner with Khyber Medical University was rightly cancelled by authorities and was debarred to continue with further medical education in Pakistan---High Court declined to interfere in matter---Constitutional petition was dismissed in circumstances.

Maroof Khan v. Principal Ayub Medical College, Abbottabad 1996 SCMR 1101 fol.

Muhammad Ejaz Sabi for Petitioner.

Mansoor Tariq for Respondents Nos.1 to 3.

YLR 2020 PESHAWAR HIGH COURT 718 #

2020 Y L R 718

[Peshawar]

Before Musarrat Hilali, J

WAHEED SHAH and others---Petitioners

Versus

SHAHZAD and others---Respondents

Criminal Revision No.139-P of 2018, decided on 11th February, 2019.

(a) Electronic Transactions Ordinance (LI of 2002)---

----S. 2---Criminal Procedure Code (V of 1898), S. 353---Qanun-e-Shahadat (10 of 1984), Arts. 2(e) & 164---Recording of evidence--- Video-link--- Accused was aggrieved of order passed by Trial Court directing to record evidence of eye-witness residing abroad through video-link---Validity---Presence of accused in criminal trial was must for obvious reasons that plea of accused in shape of cross-examination of witness had to be recorded as was mandated by S. 353, Cr.P.C.---Ordinarily, under provisions of Criminal Procedure Code, 1898 evidence against accused was to be recorded in his presence, in open court and in presence of a judicial officer, so that a fair opportunity was to be provided to accused to cross-examine witness---High Court set aside order passed by Trial Court as same was contrary to law---Revision was allowed in circumstances.

Mian Nawaz Sharif v. The State through Chairman NAB and another PLD 2018 Isl. 148 and Twentieth Century Fox Film v. Nri Film Production Associates AIR 2003 Kant 148, 2003 (5) KarLJ 98 distinguished.

(b) Electronic Transactions Ordinance (LI of 2002)---

----S. 2---Evidence through video-link---Scope---Recording of such evidence relates to documentary evidence and not oral.

Shabbir Hussain Gigyani for Petitioners.

Iftikhar Ahmad Mayar and Waqar Ahmad Khan, Addl. A.G. for Respondents.

YLR 2020 PESHAWAR HIGH COURT 734 #

2020 Y L R 734

[Peshawar]

Before Qaiser Rashid Khan and Qalandar Ali Khan, JJ

SEEMA KHAN---Petitioner

Versus

VICE-CHANCELLOR, KHYBER MEDICAL UNIVERSITY, PESHAWAR and 4 others---Respondents

Review Petition No. 202-P of 2018 in Writ Petition No. 5009-P of 2017, decided on 20th December, 2019.

MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---

----Regln.11---Khyber Medical University Examinations Regulations, 2008, Regln. 3(f)---Civil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 1---Review of judgment---Fifth chance to pass First Professional---Petitioner was studying in MBBS who failed to pass her First Professional Examination in four chances---High Court in exercise of Constitutional jurisdiction, declined to provide her a fifth chance to pass examination---Petitioner sought review of judgment passed by High Court---Validity---Pakistan Medical and Dental Council Regulations were clear on the subject and fate of an aspirant to appear in fifth attempt after availing of four chances in a Professional Medical Examination had been sealed---Any departure from same, be that by Pakistan Medical and Dental Council or by medical university, was entirely in violation of law and regulations---Scope of review and rearming petition afresh was an exercise which could not be undertaken in review jurisdiction at subsequent stage---While reviewing any judgment, only clerical or arithmetical error or any mistake floating on face of record could be corrected---High Court in exercise of review jurisdiction could not sit as court of appeal against its own judgment and consequently form a different opinion as was sought by petitioner---High Court declined to review its own judgment passed earlier against petitioner---Constitutional petition was dismissed in circumstances.

Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan. Karachi and others PLD 1962 SC 335 fol.

Qazi Jawad Ehsanullah for Petitioner.

Abdul Munim Khan for K.M.U.

YLR 2020 PESHAWAR HIGH COURT 834 #

2020 Y L R 834

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

SOHAIL NASIR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 877-P of 2017 and Crl. Revision No.3-P of 2018, decided on 24th October, 2019.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of son of the complainant by chopping his neck---Complainant had nominated the accused for murder of his son in his statement recorded under S. 164, Cr.P.C.---Complainant had not stated anything about the motive---First Information Report did not show time of occurrence---Scribe of Murasila reached the spot where he drafted the same at 2.00 p.m.---Said Official Witness also prepared injury sheet and inquest report of the deceased, however, he had not shown recovery of blood etc from the spot---Accused-appellant was arrested on the day of occurrence wherein the time and place of arrest had not been shown---Officer, who arrested the accused, in cross-examination, had admitted that he had not mentioned the time and place of arrest in the arrest card---Said witness had deposed that on receipt of spy information at 2.00 p.m. through an informer he along with other Police Officials rushed and arrested the accused at 5.00 p.m.---Name of accused, his father's name and residence were disclosed to the said witness by the informer, however, said witness had not stated that at the time of arrest of the accused, the alleged informer was accompanying police party---Accused was not already known to said witness, therefore, his arrest from overcrowded place, from amongst numerous persons, present and roaming in the said place in routine, was nothing but a cook and bull story---Record was silent about any stains or dots of blood etc on the sleeves or clothes of the accused---If the accused might had changed his clothes in which he allegedly committed the crime, then no such clothes had been shown recovered on the pointation of the accused, through the Investigating Officer who had searched the room of accused in the hostel, when he lived casted serious doubt on prosecution case---Chopped head of the deceased was allegedly recovered on the pointation of accused from congested area but no private witness had been associated with the alleged pointation proceedings---Said fact was negated by the briefing report of police high-ups to the media personnel being flashed in Newspaper wherein the chopped head of the deceased had been shown recovered on the disclosure of three persons including the appellant where one could see only the accused in handcuffs and grass but no such head was seen, hence said piece of evidence was highly doubtful---No relative of the deceased had come forward to furnish evidence to the effect that the deceased had friendship with the accused or that he used to visit the crime spot---No evidence had been collected by the prosecution to prove nexus of the accused with the deceased or his visit to the godown before the occurrence---Circumstances established that the prosecution had failed to prove the guilt of the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Circumstantial evidence--- Scope---Circumstantial evidence could form basis of conviction if it was incompatible with the innocence of accused and incapable to explain any other reasonable hypothesis than that of his guilt.

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Accused was charged for committing murder of son of the complainant by chopping his neck---Record showed that Police Officer/ witness, who arrested the accused deposed that on the pointation of the accused 30-bore pistol along with spare charger and a bandolier containing two live rounds and bloodstained churri were recovered from drawer of table from a room inside godown---Said witness deposed in cross-examination, that after arrest of accused and recovery of chopped head of deceased on his pointation when he reached the crime spot, two Police Officers/witnesses were already present and in their presence on the pointation of accused, he recovered the same---On the other hand, one Police Officer/witness had deposed that after registration of the case, he proceeded to the spot and summoned other witness on whose pointation he prepared the site plan---Statement of the witness/Police Officer showed that the Investigating Officer along with complainant was present inside the premises of godown and was busy in collecting evidence from the spot but could not recover the alleged crime weapon from a small room where only one table had been shown lying in the photographs---If the accused had not been arrested, the Investigating Officer would have not recovered the crime weapons---Statement of the officer, who arrested the accused did not appeal to a prudent mind because if the author of Murasila and the Investigating Officer were already present inside godown, they could have easily recovered the alleged crime pistol, dagger, bandolier and iron rod etc.---Recovery of the alleged crime weapons on the pointation of the accused being highly doubtful, seemed to have been planted against the accused by the police just to show their efficiency, hence, said piece of circumstantial evidence had wrongly been believed by the Trial Court---No doubt, Forensic Science Laboratory Report about the crime weapons was in positive, however, not only its recovery was highly doubtful, but the empty and pistol had been sent together to the Forensic Science Laboratory on 5.10.2015 which were received in the Laboratory on 8.10.2015---Whereabouts of the alleged crime pistol and empty in the interregnum period had not been explained by the prosecution---No independent witness had been examined in support of the said recoveries---Neither owner nor watchman of the godown had been examined in support of the said recoveries or nexus of the accused with the godown---Mobile set of the deceased also had been shown recovered on the pointation of the accused from his room in a hostel, but no identification parade of the said mobile had been conducted---No evidence was available on file to prove the said mobile to be the ownership of the deceased---Said recoveries were inconsequential---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss.302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention--- Appreciation of evidence---Circumstantial evidence---Scope---Every chain was to be linked with each other and it was to be such a continuous chain that its one end touches the dead body and other end should touch the neck of the accused---If chain is missing then its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188 and Asadullah and another v. State 1999 SCMR 1034 rel.

Hussain Ali and Shah Nawaz for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Syed Abdul Fayaz and Jehangzeb Khan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 878 #

2020 Y L R 878

[Peshawar (Mingora Bench)]

Before Wiqar Ahmed, J

DILAWAR SYED ---Petitioner

Versus

The STATE through Inspector/S.H.O. and 2 others---Respondents

Criminal Revision No. 33-M of 2019 with Criminal Miscellaneous No.102 of 2019, decided on 25th September, 2019.

Penal Code (XLV of 1860)---

----S. 471---Criminal Procedure Code (V of 1898), S. 157---Using as genuine a forged document---Suspicion of cognizable offence---Scope---Question before the court was whether the production of fake registration book of a stolen vehicle before an Investigating Officer fell within the mischief of S. 471, P.P.C.---Held; accused, during the course of investigation, was legally bound to produce the relevant documents---Production of registration book before Investigating Officer could not be said to be a use of bogus document as genuine, in circumstances ---Word "use" coined in S. 471, P.P.C. meant a voluntary and intentional act of using a forged document as genuine coupled with the fact that the person knew or had reason to believe that the same was a forged document---Conviction of accused under S. 471, P.P.C. was held to be not justified, in circumstances.

Saadat for Petitioner.

Haq Nawaz, Assistant Advocate General for the State.

YLR 2020 PESHAWAR HIGH COURT 895 #

2020 Y L R 895

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Naeem Anwar, JJ

Malik EFTIKHAR and another---Appellants

Versus

Syed ABID HUSSAIN and another---Respondents

Criminal Appeal No.622-P of 2018, decided on 3rd October, 2019.

(a) Criminal trial---

----Witness--- Natural witness---Relationship with deceased---Principle---Mere relationship does not detract veracity of natural witness, if there is no motive of his/her own to involve accused by falsely letting off real culprits.

Iqbal v. State 2014 SCMR 1227 and Hasil Khan v. The State 2012 SCMR 1936 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Motive, proof of---Sentence, quantum of---Complainant lodged FIR against accused persons for causing qatl-i-amd of his brother and attempt to qatl-i-amd on him---Trial Court had rightly held accused persons guilty of offence as ocular account was in consonance with medical evidence, recoveries of weapon of offence, empties recovered from place of occurrence with positive report from Forensic Science Laboratory and proof of theory of motive as expounded by complainant---Quantum of sentence always required utmost care and caution on part of court as such decisions related to life of accused---Prosecution was obliged to exclude every mitigating circumstance from its case---Once prosecution failed to do so, accused could be awarded lesser punishment provided under law---While deciding question of sentence, accused were entitled for benefit of every mitigating circumstance---High Court declined to interfere in conviction and sentence as Trial Court had properly appreciated facts and circumstances of case while determining quantum of sentence of accused persons---No exception could be taken as appeal had no merit---Appeal was dismissed in circumstances.

Legal Dictionary; Khadija Saddique and another v. Shah Hussain and another PLD 2019 SC 261; Nasir Iqbal alias Nasra v. The State 2016 SCMR 2152; Sharafat Ali Khan v. The State 2010 SCMR 1205 and Haji Muhammad Sadiq v. Liaqat Ali and others 2014 SCMR 1034 rel.

Shabbir Hussain Gigyani for Appellants.

Muhammad Sohail, AAG for the State.

Hussain Ali for the Complainant.

YLR 2020 PESHAWAR HIGH COURT 925 #

2020 Y L R 925

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

REHMAT KHAN---Petitioner

Versus

MUHAMMAD RAMZAN and others---Respondents

Writ Petition No. 768-D of 2019 and C.M. No.866-D of 2018, decided on 21st November, 2019.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31, 32 & 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for pre-emption---Limitation---Notice of intention to sell---Extension in period of limitation---Scope---Petitioner assailed orders of court below whereby his application under O. VII, R. 11, C.P.C. was dismissed---Validity---Suit property was sold through registered sale deed and the suit was filed after more than seven months, which was barred by time and hit by the provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Suit of respondent was not maintainable being barred by time, as there was no provision in the Khyber Pakhtunkhwa Pre-emption Act, 1987 to the effect that the suit could be filed after 120 days from the date of knowledge of the pre-emptor in case of registered sale deed---Sections 31 & 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 were independent and had no nexus with each other---Section 32, Khyber Pakhtunkhwa Pre-emption Act, 1987 being directory in nature, neither had an overriding effect on S.31, nor it could override the same in any manner for being mandatory---Section 12, Khyber Pakhtunkhwa Pre-emption Act, 1987 had nothing to do with the provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 as the same exclusively dealt with the rights of the persons entitled to pre-empt---Registered sale deed by itself was a notice to the other party---Courts below had misconstrued the provisions of law while dealing with the matter---Constitutional petition was allowed and the plaint was rejected under O. VII, R. 11, C.P.C.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 and Khalid Nabi Khan v. Haq Nawaz and 2 others 2012 YLR 126 ref.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 31---Limitation---Scope---Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 does not provide extension in period of limitation for filing the suit---Period of limitation for a suit to enforce a right of pre-emption would be computed from the date of attestation of registered sale-deed or if sale is made through mutation, the period of limitation is to be computed from the date of its attestation---Pre-emptor is required to file the suit for pre-emption within a period of 120 days as provided under the said provisions of law; meaning thereby that if the pre-emptor fails to file the suit within the specified period, his suit will not be maintainable.

----Ss. 31 & 32---Limitation---Notice---Scope---Section 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 is directory in nature and cannot override the provisions of S. 31, Khyber Pakhtunkhwa Pre-emption Act, 1987 in any manner---Section 31, Khyber Pakhtunkhwa Pre-emption Act, 1987 is mandatory in nature and in fact has an overriding effect upon the provisions of S. 32, Khyber Pakhtunkhwa Pre-emption Act, 1987.

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

----O. VII, R. 11---Rejection of plaint---Scope---Courts are under legal obligation to dismiss a time barred suit at its inception in order to save the time of the court and to protect the parties from the rigours of the useless trial.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan v. Ghulam Sadiq 2002 SCMR 677; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621 and Government of NWFP and others. v. Akbar Shah and others 2010 SCMR 1408 ref.

Malik Hidayat Ullah Mallana for Petitioner.

Muhammad Anwar Awan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 975 #

2020 Y L R 975

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

ABDUR RASHID through Legal Heirs---Petitioner

Versus

Syed FIDA-UR-RAHMAN SHAH through Legal Heirs and others---Respondents

R.F.A. No.80-D with C.Ms. Nos. 54 and 55-D of 2017, decided on 17th October, 2019.

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

----S. 12---Civil Procedure Code (V of 1908), Ss. 148 & 151---Suit for specific performance of agreement to sell---Payment of consideration amount---Trial Court directed the plaintiff to deposit remaining consideration amount within thirty days---Plaintiff filed application for extension of time which was dismissed with the main suit---Validity---Plaintiff in his plaint had shown his willingness to pay the remaining sale consideration and he could not avoid the deposit of the same---Defendant had not returned the earnest money to the plaintiff and he was directed to pay the same with profit---Plaintiff was directed to handover possession of suit property to the defendant---Appeal was disposed of, in circumstances.

Malik Bahadur Sher Khan v. Haji Shah Alam and others 2017 SCMR 902 rel.

(b) Limitation---

----Delay of each day had to be explained.

Lt. Col. Nasir Malik v. Additional District Judge, Lahore 2016 SCMR 1821; Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi 2013 SCMR 1419; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 and Qaisar Mushtaq Ahmad v. Controller of Examinations PLD 2011 SC 174 rel.

Salahuddin Khan Gandapur and Muhammad Ghazanfar Ali for Appellants.

Syed Abid Hussain Bukhari for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1019 #

2020 Y L R 1019

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmed, J

Mst. RABIA BASRI---Petitioner

Versus

ABDUL WAHEED---Respondent

Civil Revision No. 395-A of 2009, decided on 16th September, 2019.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Ishhad, performance of---Requirements---Trial Court dismissed the suit but Appellate Court decreed the same---Contention of defendant was that notice of Talb-i-Ishhad had not been served upon the vendee---Validity---Vital discrepancy in the statements of witnesses of pre-emptor was on record---Notice of Talb-i-Ishhad had not been served upon the defendant---Mere sending notice of Talb-i-Ishhad was not sufficient for performing talbs---Requirement of "sending a notice in writing" was followed by a rider i.e. under registered cover acknowledgment due---When notice of Talb-i-Ishhad was not received by the vendee/addressee but by some other person and receipt thereof had been denied by the vendee then requirement of sending a notice of Talb-i-Ishhad had not been fulfilled---Pre-emptor had failed to prove service of notice of Talb-i-Ishhad by leading evidence in the present case---Impugned judgment passed by the Appellate Court was not sustainable, in circumstances, which was set aside and suit was dismissed---Revision was allowed accordingly.

Thammiah v. Election Officer (1980) 1 Kant L.J 19; Khan Afsar v. Afsar Khan and others 2015 SCMR 311; Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 and Qaiser Zamani v. Rasheeda Begum 1985 CLC 496 rel.

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

----O. XLI, R. 22---Appeal against decree of Trial Court dismissing suit---Cross-objections, filing of---Necessity---Respondent had right to support the judgment of Trial Court without filing the cross-objection and he could make oral objection to assail the findings on issues rendered against him.

Mst. Jamila Begum v. Awam-un-Nisa and 15 others PLD 1978 Lah. 1376; Asifa Khanum through L.Rs. v. Sheikh Abdul Ghafoor through L.Rs 2009 CLC 1089 and Amir v. Falak Sher and another 2003 CLC 1756 rel.

Syed Sajjad Hassan Shah for Petitioner.

Muhammad Rafique Yousaf for Respondent.

YLR 2020 PESHAWAR HIGH COURT 1169 #

2020 Y L R 1169

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

FAQIR SAID---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 573-P of 2019 with Murder Reference No.14 of 2019, decided on 24th October, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the deceased by firing---Motive behind the occurrence was reported to be dispute over irrigation water---Record showed that the deceased, then injured, lodged report in hospital, wherein he stated that accused and his co-accused both came duly armed with firearms and started firing at him, as a result of which he got hit and received serious injuries---Report of the deceased, then injured, was endorsed/verified by the Medical Officer, who examined the deceased, then injured, by writing that the patient was fully conscious and thereafter was referred to DHQ Hospital for further treatment, where he succumbed to the injuries---Deceased, then injured, stated that accused armed with "Aslaha Atasheen" came and started firing at him while describing their individual role---Description of firearms had also not been specified in the initial report---Allegedly, both the accused were attributed the role of firing and that too with weapons of different calibre---Said version was belied by medical evidence as well as by the other circumstantial evidence---Circumstances suggested that it was practically impossible in the attending circumstances of the case to hold the convict-appellant and his son/co-accused individually or collectively responsible for the crime---Facts showed that element of throwing net wide, exaggeration and falsehood was apparent on the face of the record---Eye-witness stated that he had come for irrigation purpose about thirty minutes before the occurrence and had brought spade for irrigation purpose, irrigated his fields for one hour or 1-½ hours when the occurrence took place---After the occurrence, eye-witness made a call to a vehicle driver, which was brought and the deceased in injured condition boarded same while travelling a distance of 80 paces---Witness allegedly wrapped chaddar around his injuries and little blood had been oozing while going in the vehicle---Said witness had not produced the spade, which he had taken to the fields for irrigation purpose before the Investigating Officer---Site plan was prepared at the pointation and instance of eye-witness, who admitted in his cross-examination that he had not shown his fields to the Investigating Officer at the spot and had also not shown the irrigated portion of his land as well as the standing crops in his fields---Admittedly, the said witness had not produced the revenue papers of his landed property to the Investigating Officer---Said witness had not produced the chaddar through which he had wrapped the injuries of the deceased then injured---Investigating Officer during spot inspection recovered two empty cartridges of 12-bore shotgun lying in scattered condition, but in the site plan no separate point had been given to the empties---Eye-witness deposed that appellant was armed with 12-bore shotgun while co-accused was stated to be armed with rifle M-16 but not a single empty of M-16 rifle was recovered from the place of occurrence despite the fact that the deceased then injured in his initial report and in his court statement stated that both the accused had fired at the deceased---Mode and manner of conducting investigation, preparation of site plan at the instance of eye-witness, recovery of empties from the spot, not showing the fields as well as crops standing of eye-witness in the site plan and non-production of spade through which the deceased then injured were irrigating their fields, non-placing on record revenue papers/warabandi of landed property owned by the eye-witness and deceased, were the lacunas which hampered the case of prosecution---Prosecution, in circumstances, had not been able to bring home charge against the accused beyond reasonable shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Tawab Khan v. State PLD 1970 SC 13; Khizar Hayat's case PLD 2019 SC 527; Bakhshish Singh alias Bakhshi's case AIR 1925 Lahore 549 and Munir Ahmad's case 2019 SCMR 79 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Accused was charged for committing murder of the deceased by firing---Post-mortem examination report revealed that the deceased received ten firearm entry wounds on different parts of abdomen measuring 1x1 cm each---Dimension of injuries were of one and the same size---Seat of injuries showed that it was the doing of one man---However, eye-witness, who was father-in-law of the deceased, deposed that accused was armed with repeater rifle and his son, co-accused, was armed with rifle M-16 started firing at the deceased due to which deceased was injured---During spot inspection, the Investigating Officer recovered and took into possession two empty shells of .12-bore shot gun---Circumstances established that medical evidence did not support the ocular account---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Farman's case PLD 1980 SC 201 and Muhammad Zaman's case 2014 SCMR 749 rel.

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration, reliance on---Scope---Record showed that dying declaration of the deceased was recorded in the hospital, but that was in the presence of eye-witness/father-in-law of deceased and it was signed by him---Possibility of prompting and putting the names in the mouth of the deceased then injured could not be ruled out---Dying declaration recorded in presence of relatives was looked into with suspicion by the courts while appraising the same notwithstanding the condition of the deceased then injured at the time of report.

Muhammad Latif's case PLD 1970 SC 406 and Zabta Khan's case PLD 1963 (W.P) Pesh. 66 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that at the time of arrest of accused in another case, the crime weapon, 12-bore shotgun with three live cartridges and one 30-bore pistol with rounds were recovered from his possession---Two crime cartridges recovered from the spot were sent to the Malkhana for safe custody---Said crime cartridges after recovery of shotgun were not sent to the Forensic Science Laboratory as to whether the same were fired from the recovered shotgun or otherwise---Recovery of weapon was inconsequential, in circumstances.

(e) Criminal trial---

----Evidence---Scope---Evidence of one case could not be read in another case.

Imtiaz-u-Rehman Khan for Appellant.

Ms. Abida Safdar, A.A.G. for the State.

Astaghfirullah for deceased.

YLR 2020 PESHAWAR HIGH COURT 1211 #

2020 Y L R 1211

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

BISMILLAH JAN and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 57-M and Criminal Revision No.17-M of 2015, decided on 6th November, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Accused were charged for committing murder of brother of the complainant---Motive behind the occurrence was disclosed to be a dispute over the landed property---Ocular account had been furnished by two witnesses including complainant---Both the witnesses remained consistent in their testimony which could not be shattered despite a lengthy cross-examination by the defence---In the present case, the house of eye-witness was situated at a distance of 500/600 feet from the place of occurrence and he had also justified his presence at the spot because evidence showed that the date on which the incident took place was already fixed by the alleged 'Jirga' members for demarcation of the disputed property---Said witness informed the complainant regarding the demarcation of the disputed property---Testimony of said eye-witness, in circumstances, was worth consideration---Said two witnesses had established their presence at the spot and their testimony was confidence inspiring---Non-production of the alleged 'Jirga' members who indeed were the property dealers was not fatal to the prosecution case---Appellant, who was a principal accused, had inflicted knife blows upon the deceased repeatedly and had caused nine injuries on his body, therefore, there was no doubt that he had the intention to kill the deceased---Appellant, held, was righty convicted by the Trial Court through the impugned judgment, however, it was evident from the evidence that co-accused persons had spade and Kassi in their hands and the fight between the parties took place in two episodes---In the first episode, there was a free fight between the convicts/ appellants and the complainant-party, who were then separated by abandoned witness and eye-witness, however, in the second episode as evident from the statement of the eye-witness that deceased was pushing himself towards the appellants/convicts and similarly the appellants/convicts were also pushing themselves towards the deceased/ complainant-party---Once again there was a scuffle, however, despite the fact that the appellants had spade and Kassi with them at their hands, they did not hit the deceased with the said tools and only got hold of the deceased which was quite natural in a free fight between the two parties---Appellant/convict although inflicted repeated knife blows at the deceased but from the conduct of the co-accused it did not appear that they were also sharing common intention with him---If they had any intention to kill the deceased, they had a clear chance even in the first episode of the fight to hit the deceased with the spade and Kassi---Overall impression of the evidence would suggest that initially even all the accused had no intention to kill the deceased, however, at the spur of the moment it happened that the appellant had inflicted repeated knife blows upon the body of the deceased, therefore, his said act was an independent act on all counts, for which the co-accused could not be burdened especially when there was no evidence whatsoever on record which could suggest that the co-accused were sharing common intention with the principal accused---Appeal was partially allowed to the extent of co-accused by setting aside the conviction and sentence recorded by the Trial Court, in circumstances---Resultantly, co-accused were acquitted of the charges, while the appeal to the extent of convict/appellant stood dismissed.

Elahi Bakhsh's case 2005 SCMR 810; Hameeda Bano v. Ashiq Hussain and another PLD 1963 SC 109; Khair Muhammad alias Khairoo v. The State PLD 1975 SC 351; Hassan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49; Muhammad Riaz alias Riasti and another v. The State 1987 SCMR 177; Gheba and others v. The Crown PLD 1949 Lah. 453; Khalil and another v. The State PLD 1960 (West Pakistan) Kar. 38 and Muhammad Akbar and 2 others v. The State PLD 1991 SC 923 rel.

(b) Criminal trial---

----Witness--- Interested witness---Statement of interested witness---Reliance---Scope---Indeed, the statement of a witness on account of being interested could only be discarded if it was proved that he had ulterior motive of falsely implicating accused.

Nazir's case PLD 1962 SC 269; Khalil Ahmed v. The State 1976 SCMR 161; Iqbal alias Bhala's case 1994 SCMR 1 and Muhammad Waris's case 2008 SCMR 784 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of brother of the complainant---In the present case, the ocular testimony also found support from the medical evidence---Post-mortem was conducted at 11:43 a.m., whereas the time of occurrence as per FIR was 10:30 a.m., therefore, the post-mortem report was in line with the ocular testimony of the eye-witnesses---Prosecution, held, had established the mode and manner of the incident.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Accused were charged for committing murder of brother of the complainant---Record showed that the crime weapon was handed over by eye-witness to the Investigation Officer on the following day of the occurrence---Said recovery, held, could not be attributed to the accused/appellant---Non-recovery of crime weapon from the accused/appellant was not fatal to the prosecution case, because the prosecution had established the case against the appellant by producing ocular evidence, which fully supported the prosecution story.

Sahibzada Assadullah for Appellants (in Criminal Appeal No. 57-M of 2015).

Hafiz Bakht Amin, State Counsel (in Criminal Appeal No. 57-M of 2015).

Sher Muhammad Khan for Respondents (in Criminal Appeal No.57-M of 2015).

Sher Muhammad Khan for Petitioner (in Criminal Revision No.17-M of 2015).

Hafiz Bakht Amin, State Counsel (in Criminal Revision No.17-M of 2015).

Sahibzada Assadullah for Respondent/convict (in Criminal Revision No.17-M of 2015).

Date of hearing: 6th November, 2018.

YLR 2020 PESHAWAR HIGH COURT 1237 #

2020 Y L R 1237

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

ABDUL MAJID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 362-D of 2019, decided on 18th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 419 & 420---Cheating and dishonestly inducing delivery of property---Bail, refusal of---Allegation against accused was that he obtained a huge amount from the complainant for sending him for sacred journey of Hajj but failed to send him for and despite lapse of sufficient long time did not return the amount to the complainant---Deceptive behaviour of the accused depriving the innocent and poor people from their life savings was a factor which could not be ignored lightly---Offence was not only heinous but also against humanity---Record revealed that accused was an habitual offender and many cases of dishonestly issuing cheques had been registered against him---Punishment provided for the offence did not come within the prohibitory clause of 497, Cr.P.C. but it was not a rule of universal application---Tentative assessment of the available record showed a prima facie case against accused---Bail petition being without merits was dismissed, in circumstances.

Saif-ur-Rehman Khan for Petitioner.

Ms. Nahid Akhtar for the State.

Muhammad Mohsin Ali for the Complainant.

YLR 2020 PESHAWAR HIGH COURT 1259 #

2020 Y L R 1259

[Peshawar (Abbotabad Bench)]

Before Lal Jan Khattak and Abdul Shakoor, JJ

MUQADDAR SHAH---Appellant

Versus

SAJJAD AHMAD and another---Respondents

Criminal Appeal No. 103-A with Murder Reference No. 5-A of 2012, decided on 5th December, 2019.

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---Mitigating circumstances---Prosecution case was that accused-appellants, while duly armed with Kalashnikovs, started altercation with the father of complainant, on which complainant party entreated them for forgiveness but they did not accept the request and with their weapons opened fire at them---With the fire shots of co-accused, father and brother of the complainant were hit, whereas with fire shot of accused, other brother of the complainant was hit---Fire shots of the accused-appellants, hit one shopkeeper, also---Father of the complainant and his two brothers succumbed to the injuries---Occurrence took place at 9.30 a.m. and was reported in the hospital at 10.15 am, i.e. within a period of 45 minutes---Ocular account furnished by the eye-witnesses had been corroborated by medical examinations of the three deceased and also supported by the site plan, wherefrom the Investigating Officer had recovered five empties of 7.62 bore---Investigating Officer took into possession bloodstained earth from the places of all the three victims---Occurrence had taken place in front of the house of the eye-witnesses, who were residing there with the victims jointly and at the relevant time were unloading the wheat from the trolley, therefore, their presence on the spot was quite natural---No blood-feud of the eye-witnesses with the appellants, therefore, no question for their false implication had arisen---Substitution of an actual culprit for an innocent person was a rare phenomena because no prudent person would ever let the actual wrongdoer scot-free and replaced him for the one, who had no nexus with the crime---Receiving no injury by eye-witnesses did not mean that they were not present on the spot at the time of occurrence---Record showed that when the firing started, the eye-witnesses took refuge behind the trolley, wherefrom the wheat was being unloaded by the complainant side at the time of occurrence---Circumstances established that the prosecution had proved its case against both the accused-appellants through reliable and trustworthy evidence---However, no material was on the record to show that as to what had happened on the spot before the occurrence---Said fact reflected from the record that prior to the occurrence there was altercation between the accused-appellants and the victims but it was not known that what prompted the accused-appellants to unleash the indiscriminate firing---Whether the victims' side was responsible for aggravating the situation or the appellants did so, was an aspect of the case which could be taken and considered as a mitigating circumstance, necessitating reduction in the sentences awarded to the accused-appellants---While maintaining the conviction of the accused-appellants on three counts their sentence was reduced from death to imprisonment for life---Appeal was partially allowed.

Astaghfirullah, Syed Abdul Fayaz and Jalal-ud-Din Akbar Azam Khan Gara, for Appellant.

Muhammad Shabbir for the Complainant.

Ms. Sofia Noreen, A.A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 1278 #

2020 Y L R 1278

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

ABDUL KHALIQ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 124-B of 2018, decided on 12th November, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Interested witnesses---Contradictions in the statement of witnesses---Accused were charged for committing murder of father of the complainant by firing---Motive behind the occurrence as alleged by the complainant was that some eight (8) years back, father of accused/appellant was killed, for which the deceased was charged---Ocular account had been furnished by complainant and real brother of the deceased---Said two witnesses were examined before the trial court, but both of them were in contrast with each other, as one of the witness stated that soon after the occurrence, the women folk including the children from the house of the deceased attracted to the spot, whereas the other stated that no one else attracted to the spot and kept complete silence regarding the attraction of the women and children from the house---Both the witnesses made conscious attempt to make their availability appealable and both of them pointed their houses to be situated in the close proximity but one of the witnesses stated that the houses were at a distance of 500/600 yards, whereas the other stated that it was some 250/200 feet from the place of the occurrence---Witnesses did not remain consistent on material aspects of the case, and even they went poles apart in respect of the mode, manner and the time of occurrence---Prosecution with time went on with constant improvements and both the witnesses never ever remained consistent and stuck to the previous stance---Mala fide was evident from record that the presence of the witnesses at the place of occurrence was not established as the shops they claimed at the place of occurrence were neither pointed out nor shown in the site-plan, when it was prepared on pointation of the prosecution witnesses---Circumstances suggested that neither the said witnesses were present on the spot nor the dead body was collected and brought to the hospital by them---Witnesses were held to be chance and interested witnesses with the sole purpose to implicate the appellants for a blind murder---Record transpired that the distance between the assailant had been shown as 10 paces from the cot where the deceased was initially sitting and 10 to 12 paces when the deceased after running received second round of firing---Two of the injuries were having blackening and said factor further negated the stance of the witnesses in respect of the distances mentioned therein---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Gulfam and another v. The State 2017 SCMR 1189 and Barkat Ali v. The State 2007 SCMR 1812 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about four hours in lodging the FIR---Effect---Accused were charged for committing murder of father of the complainant by firing---Incident occurred at 07.30 a.m. whereas the report was made to the local police in the hospital at 11.30 a.m. i.e. with an abnormal delay of four hours---Prosecution failed to explain the delay---Distance between the spot and the hospital was not more then 8/9 kilometers---Scribe of FIR stated that it was 08.00 a.m. that he received information regarding the incident from Moharrir of the Police Station---Said witness reached to the hospital at 09.00 a.m. where the dead body of the deceased was brought by the co-villagers---Witness had prepared the injury sheet, inquest report and other formalities, but kept waiting for report when at 11.30 a.m. the complainant reached to the hospital and reported the matter to the said witness---Said statement left no room to hold that in fact the incident was unwitnessed---Later on people of the locality brought the dead body to the hospital and thereafter an attempt was made to contact the legal heirs of the deceased and were procured and after consultation and deliberation the accused/appellants were charged keeping in mind the blood feud as earlier father of the appellant was murdered for which the deceased was charged---Said facts were fatal to the prosecution case---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties along with blood-stained pebbles---Reliance---Scope---Accused were charged for committing murder of father of the complainant by firing---Investigation Officer allegedly recovered empties from the spot along with blood-stained pebbles and prepared the site-plan on the pointation of the witnesses---Investigation Officer sent the said articles to the office of the Chemical Examiner---Expert had opined that the empties were fired from different weapons---If the stance of the complainant was read together with the opinion so tendered by the expert then the testimony of complainant lost ground as the witnesses attributed the effective role of firing on the deceased to the co-accused---Prosecution has failed to prove its case to the hilt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(d) Criminal trial---

----Abscondence--- Scope--- Abscondence alone could not be a substitute for the direct evidence.

Muhammad Sadiq v. The State 2017 SCMR 144 rel.

(e) Criminal trial---

----Motive---Scope---Motive is a double edged weapon which cuts both ways.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

Qaidullah Khan and Haji Malik Rehman for Appellants.

Shahid Hameed Qurashi, Addl. A.G. for the State.

Fazal Qadir Khan and Muhammad Alamgir Wazir for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1341 #

2020 Y L R 1341

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

AZGHAR KHAN---Petitioner

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Writ Petition No.972-M of 2018, decided on 11th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Petitioner assailed order of Ex-officio Justice of Peace whereby his application under S. 22-A, Cr.P.C. was dismissed---Allegation of petitioner was that respondents, on the illegal direction of Additional Assistant Commissioner Revenue, had taken over the possession of his house---Validity---Report of S.H.O. disclosed that Additional Assistant Commissioner Revenue along with police contingent and levy officials had got vacated the house on the orders of Commissioner---Said house was earlier allotted to respondents and the petitioner could not explain as to how he had intruded into the house---Additional Assistant Commissioner, Revenue had rightly got the said house vacated---Petitioner had filed application for lodging of FIR against respondents---Commission of cognizable offence did not come out of the record, in circumstances---Order passed by Ex-officio Justice of Peace was fully justified---Constitutional petition was dismissed.

Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

Muhammad Imran Khan for Petitioner.

Wilayat Ali Khan, A.A.G. and Aurangzeb for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1363 #

2020 Y L R 1363

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar, J

The LAND ACQUISITION COLLECTOR (WAPDA)---Appellant

Versus

JEHANZEB KHAN and others---Respondents

R.F.A. No.127-A of 2010, decided on 14th November, 2019.

(a) Land Acquisition Act (I of 1894)---

----Ss. 18 & 28---Civil Procedure Code (V of 1908), S. 144---Reference to court---Enhancement of compensation---Petition for reimbursement of enhanced compensation---Referee Court enhanced compensation which was received by the landlords---Petitioner, the acquiring Authority, filed appeal which was accepted---Petition for refund of enhanced compensation with interest was moved---Referee Court directed for refund of enhanced compensation but declined payment of interest---Validity---Person who had taken the money improperly from the judgment debtor had to restitute to him the amount as a corollary with interest during the time that money had been withheld from him---Section 144 of C.P.C. was equally applicable to money decree and there was no distinction between the private person or the State---Where a sum of money was recovered in execution of a decree which was subsequently reversed or varied then judgment debtor was entitled to get back not only the sum recovered but also the interest or damage or compensation for the period the amount had been retained by him---State was entitled to restitute the entire amount with interest, in circumstances--- Landowners had received enhanced compensation with interest for their acquired land pursuant to decision of Referee Court---Direction to restitute the amount with interest was within the powers conferred on the Court under S. 144, C.P.C.---Impugned order passed by the Court below was modified---Petitioner was held entitled to restitution of money from the date of its payment with simple interest at 3% till the realization/refund of the same---Appeal was disposed of, in circumstances.

Shanmugasundara Mudaliar and others v. S. Ratnavelu Mudaliar (1932) 63 MLJ 383; Dip Singh and others v. Jaswant Singh and others (1885) ILR 7 All. 432; State Government of Andhra Pradesh v. Manickchand Jeevraj & Co., Bombay AIR 1973 AP 27; L. Guran Ditta v. T.R. Ditta 1935 37 Bom. LR 162 and Kartar Singh alias Naranjan Singh and others v. State of Punjab AIR 1995 Lahore 1726 rel.

(b) Maxim---

----"Actus curiae neminem gravabit"---Meaning: Act of the Court should injure none.

Rodger v. Comptoir d' Escompte de Paris 1871 LR 3PC 465 rel.

Tanveer Ahmad Mughal for Appellant.

Khalid Rehman Qureshi and Javed Iqbal Qureshi for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1398 #

2020 Y L R 1398

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

UMAR HAYAT---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 178-M of 2017, decided on 11th March, 2019.

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

----S. 302 (b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Confessional statement of accused---Scope---Accused was charged for committing murder of the son of complainant---Record showed that accused was produced before the Judicial Magistrate on 12:00 p.m. and his confession was recorded at 12:15 p.m., only fifteen minutes were given to the accused for thinking---Investigation Officer in his cross-examination had confirmed/admitted that he was never asked by the Judicial Magistrate for the medical examination of the accused/ appellant and after recording his confessional statement the accused was handed over to him at 01:00 O'clock---Circumstances suggested that the Judicial Magistrate had recorded the confession of the accused/appellant in a very casual manner---Judicial Magistrate was supposed to attended the appellant very seriously---Conducive atmosphere was to be provided thereby removing all kinds of fear from his mind and inquired about the nature of undue influence and temptation---Such serious irregularity had raised a serious question on the voluntariness of the appellant to confess his guilt---Confession of the accused did not appear to be voluntary---Appeal was allowed and accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

Asif Mahmood v. The State 2005 SCMR 515 and Muhammad Pervez and others v. The State and others 2007 SCMR 670 rel.

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

----S. 164--- Confession recorded promptly--- Conviction--- Promptly recorded confession by accused even if it was retracted at later stage of the proceedings was a sufficient ground for conviction of the accused provided the conscience of the court was satisfied that the said confession was voluntary and true and corroborated by other evidence.

----S. 164---Retracted confession---Evidentiary value---Scope---Confession having been retracted, therefore, the same would require further corroboration from the record for qualifying to be a valid ground for conviction.

Nadir Hussain v. The Crown 1969 SCMR 442; The State through A.G. then the N.W.F.P now Khyber Pakhtunkhwa v. Waqar Ahmad 1992 SCMR 950 and Bahadur Khan v. The State PLD 1995 SC 336 rel.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account---Accused was charged for committing murder of the son of complainant---Ocular account of the occurrence had been furnished by two witnesses---Since the statements of those alleged eye-witnesses of the occurrence were recorded on the following day of the occurrence, therefore, the same were to be considered with due caution and care and thoroughly scrutinized and it was to be seen as to whether their testimony in the circumstances of the case was reasonable, probable or plausible and could be relied upon in respect of guilt of the accused---Record showed that one eye-witness was the driver of the vehicle by which the deceased and his father the complainant were taken to the hospital---Said witness was the cousin of the deceased---Said witness had stated that in the headlights of the vehicle, he had seen the appellant running towards the graveyard along with the pistol---He put the deceased with the help of other people in his vehicle and took him to the hospital---Despite the fact that the deceased was his cousin and the complainant his uncle, on way to the hospital that did not disclose the said incident so that the appellant could be charged immediately for the murder of deceased---Such conduct of witness was unusual and as such his delayed statement was not confidence inspiring and it would be highly unsafe to rely on his statement for awarding punishment to the appellant---Other eye-witness had stated that he did not know the accused and he was told about the incident by other person---Said glaring contradiction/ improvement in his statement also made him an untruthful witness---Said statements not only showed their unnatural conduct but their statements appeared to be unreasonable, improbable and not plausible---Testimony of such witnesses could not be relied, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Sadiq v. The State PLD 1960 SC 223; Tariq Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984 SCMR 930; Haroon alias Harooni v. the State and another 1995 SCMR 1627; Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 and Saifullah v. The State 1985 SCMR 410 rel.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Recovery of crime weapon was a 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/ evidence 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.

Said Hakim for Appellant.

Rahim Shah, Assistant Advocate General for the State.

Barrister Asad-ur-Rehman for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1429 #

2020 Y L R 1429

[Peshawar]

Before Muhammad Naeem Anwar, J.

NASIR AZIZ and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous (B.A.) No. 170-P of 2020, decided on 24th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)-- Possession of narcotics---Bail, grant of---Further enquiry----Recovery of 11 kilograms heroin was effected from the 'degi' of the motorcar, which was driven by co-accused at the relevant time---Nothing was available on the record which could show that either accused persons were having conscious knowledge of the narcotic or were previously involved/convicted in such like cases---Mere heinousness of crime would not disentitle accused to the concession of bail when ultimate conviction, if any, could repair the wrong caused by the mistaken relief of bail---Application was allowed, in circumstances.

Noor Alam Khan for Petitioners.

Tariq Kakar, Special Prosecutor ANF for the State.

YLR 2020 PESHAWAR HIGH COURT 1443 #

2020 Y L R 1443

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

BARKAT ALI---Petitioner

Versus

STATE through A.A.G. and another---Respondents

Review Petition No. 16-M of 2018, decided on 3rd October, 2018.

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

----S.369---Court not to alter judgment---Scope---Once an order was passed by one Bench of the High Court the other Bench could not review such an order ordinarily---High Court, in proceeding with the matter in criminal jurisdiction, had no power to review an order----Review petition being not maintainable was dismissed.

Imdad Ali Khwaja's case 2016 SCMR 2057; PLD 2016 Pesh. 195; 2013 PCr.LJ 767; 1971 PCr.LJ 483; PLD 2015 SC 322; PLD 2004 SC 911; 2014 SCMR 1609; 2012 SCMR 334; 2008 SCMR 165; 2008 SCMR 880; PLD 2004 SC 32; 2002 SCMR 1239; 2002 SCMR 1611; PLD 2001 SC 433; 1986 SCMR 965 and Muhammad Khalil-ur-Rahman's case PLD 1995 SC 633 ref.

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

----S. 561-A & Chap. XXVI [Ss.366 - 373]---Order by High Court---Review of such order under inherent powers under S.561-A, Cr.P.C. of the High Court---Scope---Certain orders which do not qualify to be a "judgment" as provided in Chap. XXVI of the Criminal Procedure Code, 1898, could be reviewed by the High Court under its inherent powers.

Sajjad Anwar for Petitioner.

Rahim Shah, Assistant Advocate General for the State.

YLR 2020 PESHAWAR HIGH COURT 1462 #

2020 Y L R 1462

[Peshawar]

Before Rooh ul Amin Khan and Muhammad Naeem Anwar, JJ

JAWAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 821-P of 2019, decided on 3rd October, 2019.

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

----Ss. 302(b) & 114---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Delay of about two hours and ten minutes in lodging the FIR---Effect---Prosecution case was that the accused on the command of his father committed murder of daughter of the complainant by firing---Record showed that occurrence had taken place at 1745 hours, which had been reported by complainant at 1955 hours, after about two hours and ten minutes of the occurrence---No explanation whatsoever, had been furnished by complainant in the initial report with regard to the said delay---Said unexplained delay in lodging the FIR was fatal to the prosecution case.

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

----Ss. 302(b) & 114---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Conduct of eye-witnesses--- Contradictions and discrepancies in the prosecution evidence---Prosecution case was that the accused on the command of his father committed murder of daughter of the complainant by firing---Motive behind the occurrence was that some 45 days prior to the occurrence, daughter of deceased was abducted by the accused---Accused and his father had come to the house of complainant so as to settle dispute in respect of her granddaughter---During conversation/negotiation, there was exchange of hot words between the accused and complainant party, and incident took place---Ocular account of the occurrence had been furnished by three witnesses including complainant---Brother-in-law of the deceased/witness had deposed that after the occurrence, the dead body of the deceased remained on the spot for fifteen minutes, whereafter it was shifted to the hospital---Said statement created serious doubt about presence of alleged eye-witness at the spot at the time of occurrence---Complainant during her cross-examination had negated her version in the FIR and had shattered the prosecution case as well as her credibility and veracity---In the present case, there were three versions about shifting of the dead body to the hospital, one furnished by the complainant in her initial report, second in her court statement and the third advanced by the scribe of the murasila and purported eye-witnesses---Said fact showed that complainant was not a truthful witness, which created doubt in the prosecution case---Circumstances suggested that the occurrence had not taken place in the mode and manner as alleged by the purported eye-witnesses---Complainant had admitted that her granddaughter had recorded her statement to the effect that she had not been abducted rather she left the house with the accused-appellant with her own free will and contracted marriage with him---Complainant further admitted that her granddaughter was legally wedded wife of the accused, however, she was not on visiting terms with her family---Prudent mind would not entertain the statement that appellant against whom there was charge of abduction of daughter of the deceased or he had married her without consent or will of her family, would himself go to the house of complainant along with father for settlement of the said dispute---Site plan showed that the purported eye-witnesses along with deceased and the accused were present in a room---Co-accused, since acquitted, aged about 57 years had been shown empty handed at the spot---Only role given to him was that of commanding---Prosecution version was that after the occurrence both the accused made their escape good from the spot which also did not appeal to a prudent mind, because the purported male witnesses could at least easily apprehend the empty handed accused, if not armed one or they had chased the appellant by picking up arms from their house because usually arms and ammunitions were available/kept for protection---Conduct of the purported eye-witnesses like silent spectators further confirmed that they were not present at the spot---High Court observed that dead body was shifted to the hospital after more than two hours of the occurrence by the local police where a story was cooked---Husband and daughter of the deceased had not appeared before the police or the court---Prosecution had failed to prove its case against the accused, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

----Ss. 302(b) & 114---Qatl-i-amd, abetment---Maxim: "falsus in uno falsus in omnibus"---Scope---Acquitting one accused and convicting the other accused on the same set of evidence would be a complete departure from the principle of falsus in uno falsus in omnibus.

(d) Criminal trial---

----Benefit of doubt---Principle---One substantial doubt would be enough for acquittal of the accused.

(e) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

Mian Arshad Jan for Appellant.

Muhammad Sohail Khan, A.A.G. for the State.

Hafiz Nawab Ali Khan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1516 #

2020 Y L R 1516

[Peshawar]

Before Ahmad Ali, J

Syed YOUSAF ALI SHAH--- Petitioner

Versus

SHOAIB KHAN and 5 others---Respondents

Writ Petition No. 1902-P of 2018, decided on 16th September, 2019.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 14---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---'Pagri' amount, payment of---Effect---Earlier, ejectment petition filed on behalf of mother of landlord having been dismissed---Res judicata, principle of---Applicability--- Tentative rent--- Non-payment of--- Effect--- Landlord filed eviction petition on the ground of personal need which was accepted by the Rent Controller but Appellate Court dismissed the same---Validity---Question of personal need and default in payment of rent could not be static---Rejection of an earlier eviction petition would not be a bar under S.14 of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Constructive res judicata would only apply when there were identical reasons and circumstances after earlier unsuccessful attempt--- Subsequent ejectment petition could be filed subject to availability of changed situation and circumstances---No time limit could be fixed for changed circumstances and personal requirement--Personal need of landlord had to be genuine---Tenant had committed default in payment of rent which had provided a fresh cause of action to the landlord to file eviction petition---Landlord had personal bona fide need of demised premises and he was ready to give surety to hand over the shop in question to the tenant if he failed to establish his own business in the same---Personal need of landlord could not be defeated by adversely interpreting evidence to reach another conclusion as had been done by the Appellate Court---If landlord had failed to start his own business in the demised premises then rights of tenant had been protected under S.13 (4) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Sole statement of landlord was sufficient to prove his bona fide personal need---Landlord had prerogative to choose business of his choice---Mere lack of experience and non-disclosure of nature of business would not disentitle the landlord from claiming ejectment of tenant---Tenant had not deposited tentative rent according to the direction of Rent Controller and his defence should have been struck off---Tenant had committed default in payment of rent and he was liable to be evicted from the demised premises---Tenant had neither claimed for return of pagri amount nor there was any direct evidence with regard to payment of the same---Plea of payment of pagri amount would not make tenancy in perpetuity when it had not been created by a registered instrument---Where amount of pagri had been treated as mutual arrangement between the parties then same had no legal sanctity and it could not be adjusted against rent which had to be paid in accordance with the terms and conditions of tenancy agreement---Impugned order passed by the Appellate Court was set aside and that of Rent Controller was restored---Tenant was directed to vacate demised premises within one month and pay rent for defaulted period---Constitutional petition was allowed in circumstances.

Muhammad Shafi v. Haji Shaista Khan 2002 SCMR 480; Malik Muhammad Shafi v. Karim ud Din and others 1985 CLC 2483; Muhammad Sharif v. Additional District Judge, Lahore and others 1991 SCMR 1917; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Mst. Nayyar Naheed v. Malik Zaheer Ullah and 2 others 2011 YLR 1535; Mirza Book Agency and others v. Additional District Judge Lahore and others 2013 SCMR 1520; Mrs. Shamim Bano through Attorney v. Mrs. Nazir Fatima 2001 SCMR 1552 and Muhammad Saeed v. Muhammad Asghar 2008 MLD 236 rel.

Nasir Khan Afridi for Petitioner.

A. Hashim Khan for Respondent No.1.

Muhammad Javed Yousafzai for Respondents Nos.3 to 5.

YLR 2020 PESHAWAR HIGH COURT 1536 #

2020 Y L R 1536

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SHOUKAT ALI---Appellant

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Appeal No. 857-P and Criminal Revision No.62-M of 2019, decided on 13th November, 2019.

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

----Ss.324, 337-D, 337-F(i) & 337-F(iii)---Attempt to commit qatl-i-amd, jaifah, causing mutalahimah, hurt---Appreciation of evidence---Ocular account supported by medical evidence---Effect---Prosecution case was that accused made firing upon the complainant party, due to which three persons including complainant sustained injuries---Motive for the occurrence was stated to be the dispute over women-folk---Record showed that lodging of report in the hospital have even otherwise been proved in the statement of the complainant as well as the supporting evidence in that respect---Medical Officer who had examined the injured in the case was examined as witness---Medical Officer, in his statement, had reproduced the detail description of the injuries found on the persons of the three injured---Said witness was cross-examined at length but nothing beneficial to the accused could be extracted---Site plan showed blood had also been recovered from the same place where one of the injured had allegedly taken refuge---Exchange of hot words between the accused and son of the complainant was an episode which preceded the crime---First Information Report as well as the examination in chief showed that complainant had expressly stated that he came out and separated the accused and his son with the help of the other two injured persons, therefore, son of the complainant had not been cited as eye-witness in the FIR as well as in the site plan---Complainant had also stated in the FIR that after some time, the accused appeared from behind the wall of his house and started firing at the injured---Said fact was cleared from the evidence of prosecution that there was some time-gap between the incident of exchange of hot words and the commission of the offence---Such circumstances could not, therefore, be construed adversely for the case of the prosecution---Injured eye-witness had fully stood the test of cross-examination and no contradiction in respect of the material particulars of the case could be brought in the cross-examination of the witness--- Investigation officer of the case was examined as prosecution witness---Nothing beneficial to the accused had been brought out from the mouth of the said witness---Investigating Officer had successfully deposed in respect of conducting investigation in the case particularly recovery of the weapon of the offence and sending the same to Forensic Science Laboratory for the purpose of matching the same with the empties recovered---Investigation Officer had stood firm in the course of cross-examination and no material contradiction could be brought out from his mouth---Remaining witnesses were thereafter abandoned as either being unnecessary, or won-over, or having effected compromise---Circumstances established the actual dispute existed between the accused and the complainant---Other injured received injuries just because of they were present at the time of occurrence at the spot; in such circumstances, when deposing against the accused might have been resulted in perpetuation of the enmityt---Site plan as well as statement of a witness showed that they were neighbors of the accused and in such circumstances their non-appearance could not be construed fatal to the case of prosecution---If the prosecution succeeded in proving a case against an accused by producing reliable evidence then it could not be burdened or deemed bound to produce all the evidence at its disposal---Circumstances established that prosecution had proved the causing of injuries to all the three eye witnesses in view of the statements of the Medical Officer, injured witnesses as well as the Investigation Officer---Conviction of the accused on the said score was lawful and suffered from no illegality---Appeal being without force was dismissed accordingly.

Khushi Muhammad v. The State and another 1983 SCMR 697; 2007 SCMR 1519 and 2012 YLR 737 rel.

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

----Ss.324, 337-D, 337-F(i) & 337-F(iii)---Attempt to commit qatl-i-amd, jaifah, causing mutalahimah, hurt---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Investigation Officer had recovered the weapon of offence (Kalashnikov) along with a magazine having 03 live round of 7.62 bore on the pointation of the accused---Nothing prejudicial to the case of the complainant in the cross-examination of that witness could be extracted---Appeal being without force was dismissed accordingly.

----Ss.324, 337-D, 337-F(i) & 337-F(iii)---Attempt to commit qatl-i-amd, jaifah, causing mutalahimah, hurt---Appreciation of evidence---Recovery of weapon of offence from the accused---Delay in dispatch of recovered weapon for examination---Effect---Prosecution case was that the accused made firing upon the complainant party, due to which, three persons including complainant sustained injuries---Weapon of offence was though statedly recovered from the accused but report of Forensic Science Laboratory Report showed that the empties sent by the Investigating Officer had been fired from the same weapon---Said report could not be relied upon for the reason that there had been substantial delay in sending the empties as well as weapon of offence to the Forensic Science Laboratory for analysis and report---Empties could not be swiftly dispatched to the Forensic Science Laboratory and it had been sent after three days of the arrest of accused---Said delay could not be sufficiently explained in the evidence of prosecution---Prosecution had, however, proved their case through direct evidence and said delay in sending the weapon of offence and empties to the Forensic Science Laboratory would not per se, reflect adversely on the case of the prosecution---Appeal being without was accordingly dismissed.

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

----Ss.324, 337-D, 337-F(i) & 337-F(iii)---Attempt to commit qatl-i-amd, jaifah, causing mutalahimah, hurt---Appreciation of evidence---Motive, proof of---Complainant while deposing as witness had stated in his examination in chief about the existence of the motive---Said statement could not be shattered during the course of cross-examination, as such, the existence of motive had also been successfully proved in the case---Appeal being without force was accordingly dismissed.

Mian Kausar Hussain for Appellant (in Criminal Appeal No.857-P of 2019).

Haq Nawaz Assistant Advocate General for the State (in Criminal Appeal No.857-P of 2019).

Abdul Salam Buneri for Respondent (in Criminal Appeal No.857-P of 2019).

Abdul Salam Buneri for Petitioner (in Criminal Revision No.62-M of 2019).

Mian Kausar Hussain for Respondent (in Criminal Revision No.62-M of 2019).

Haq Nawaz Assistant Advocate General for the State (in Criminal Revision No.62-M of 2019).

Date of hearing: 13th November, 2019.

YLR 2020 PESHAWAR HIGH COURT 1563 #

2020 Y L R 1563

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

PROVINCIAL GOVERNMENT OF KHYBER PAKHTUNKHWA through Provincial Secretary Home and 7 others---Appellants

Versus

AFTAB MOHAMMAD USMAN KHAN and another---Respondents

R.F.A. No.17-M of 2016 with C.M. No.277 of 2016, decided on 5th December, 2019.

Land Acquisition Act (I of 1894)--

----Ss. 18, 23, 4---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Referee Judge enhanced compensation amount from Rs. 133/- per sq. feet to Rs. 900/- per sq. feet along with 15% compulsory acquisition charges and 6% simple interest from the date of acquisition---Validity---Acquired land was situated on the main road and had commercial use and utility---Market value of other areas might not be compared to a commercial part of the land in the Mouza---Referee Court had rightly ignored the mutations of said land in assessing the market value of acquired land---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment passed by the Court below---Appeal was dismissed, in circumstances.

PLD 1986 SC 158; PLD 2010 SC 719; 2016 SCMR 1141; 2018 SCMR 779; 1996 CLC 1193; 2018 MLD 331; 2018 CLC Note 117 and 2018 CLC 1445 ref.

Murad Khan v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Government of Pakistan v. Mulvi Ahmad Saeed 1983 CLC 414 and Jogendra Nath Chatteriee v. State of West Bengal AIR 1971 Cal. 458 rel.

Haq Nawaz, Assistant Advocate General for Appellants.

Muhammad Karam Khan and Ashfaq Dawoodzai for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1643 #

2020 Y L R 1643

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. SHERINAI (Widow) and 8 others---Petitioners

Versus

ZAREEN KHAN and 18 others---Respondents

Writ Petition No. 2976 of 2019, decided on 4th November, 2019.

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

----O. XXXIX, Rr. 1 & 2---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 135---Petition for partition of landed property---Suit for declaration--- Stay of partition proceedings---Requirements---Petitioners filed application before Revenue Officer for stay of partition proceedings pending before him till decision of civil suit but same was dismissed---Validity---Lis which was pending before the civil Court did not create any hurdle in finalization of partition proceedings---Petitioners had no prima facie case in their favour---Balance of convenience also did not exist in their favour of and if temporary injunction was not granted, they would not suffer an irreparable loss---Contention with regard to intricate question of law and fact of entries of revenue record should be determined when inquiry in civil suit would come to an end---Proceedings pending before Revenue Officer with regard to partition of landed property could not be stayed---Disputed question of fact could not be considered and only illegality or jurisdictional error had to be examined in constitutional jurisdiction of High Court---No illegality or jurisdictional error had been pointed out in the impugned orders passed by the revenue hierarchy---Constitutional petition was dismissed in limine in circumstances.

Chairman Municipal Committee v. Muhammad Jan and 4 others 1987 PLC 2416; Shamsulhaq v. Aurangzeb and others 2003 CLC 87 and Shahkarim Bakhash and others v. Mst. Jehan Zeba and others 2016 MLD 1896 rel.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Requirements---Three ingredients i.e. prima facie case, balance of convenience and irreparable loss were sine qua non for grant of temporary injunction and if any of said ingredients was not in existence then injunction could not be granted.

Managing Director and 4 others v. Messers Neelab CNG Filling Station through Managing Director PLD 2014 Pesh. 218 rel.

YLR 2020 PESHAWAR HIGH COURT 1685 #

2020 Y L R 1685

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Nasir Mehfooz, JJ

BAKHT NAWAS and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 52-P of 2017, decided on 19th November, 2019.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Related and interested witnesses---Chance witness---Non-availability of justification for presence for chance witness at the place of occurrence---Effect---Accused persons were charged for committing murder of son of the complainant by firing---Alleged motive was a dispute over landed property---Complainant and his brother had been shown in FIR to be the eye-witnesses of the occurrence---Both were closely related to the deceased---Complainant, in cross-examination, deposed that accused had direct enmity with him and eye-witness---Both the alleged eye-witnesses living in different areas, having direct enmity/motive with the appellants were interested, inimical as well as chance witnesses---Complainant while appearing as witness reiterated the same story as set forth by him in the initial report/murasila---In cross-examination, complainant deposed that he was serving in police department for the last 20/25 years and had admitted that during the days of occurrence, he was posted in a police station---No evidence either oral or documentary in the shape of attendance register/record of police station had been brought on relevant by complainant to substantiate that on the relevant day he was on leave from duty---Complainant had not furnished any explanation, much less plausible, as to how he along with deceased and eye-witness got to gather or accompanied each other on the day of occurrence to the spot, particularly, when eye-witness was residing in separate house---Complainant and eye-witness had not sustained any injury despite the fact that accused were having direct enmity with them---Medical Officer had opined about the time between injury and death of the deceased as 45 minutes, had the complainant been present at the spot he would have shifted his deceased son then injured to hospital so as to save his life within 45 minutes and would have informed the police stations falling in the way from spot to hospital---In case complainant was present at the spot, his clothes and hands would have been smeared with blood of the deceased in lifting him/shifting him to the hospital, but no such clothes had been produced before the Investigating Officer---Said circumstances created serious doubts about presence of the complainant at the spot at the time of occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Related witness, statement of---Reliance---Scope---Testimony of a witness of close relationship with the deceased or a chance witness could not be discarded provided the same was trustworthy, confidence inspiring and corroborated by other strong circumstances of the occurrence.

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Eye witness, statement of---Reliance---Scope---Testimony of an eye-witness, who claimed his/her presence at the spot at the time of occurrence must satisfy the mind of the court about his/her purpose of presence through some physical circumstance or through some corroborative evidence.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence--- Benefit of doubt---Contradiction in statement of witnesses---Dishonest improvement--- Scope---Accused were charged for committing murder of son of the complainant by firing---Record showed that in his initial report, complainant had not stated about taking shelter at the time of occurrence but in his court statement, he while making improvement to bring his stance in consonance of prosecution case, deposed that eye-witness had taken shelter from firing behind Bosara---General role of firing upon the deceased had been attributed to the accused persons and absconding co-accused in the FIR by the complainant---Complainant had narrated that on their hue and cry, they were also fired upon by the accused, but neither he nor eye-witness had sustained any injury---Complainant, in order to bring his testimony in line with the prosecution case by taking somersault, deposed that he had not stated in his report that accused also made firing at them, which not only amounted to dishonest improvement but by taking U-turn, he had negated his version originated in the FIR and even in his examination-in-chief---Eye-witness disclosed that he was listening his brother/complainant when his report being recorded, wherein the complainant being the author of report stated that accused were armed with Kalashnikovs---Initial report revealed that only words "Aslaha Atesheen" had been mentioned by the complainant---Two crime empties of 7.62 bore had been shown recovered from the spot, therefore, eye-witness in order to bring his testimony in line with the prosecution case introduced Kalashnikovs in the report of complainant---Said dishonest improvement made by eye-witness negated the report as well as testimony of complainant---Said eye-witness deposed that at the time of occurrence, other co-villagers were busy in the Zamidara work at some distance from them---Complainant deposed that except them no one was there in the fields at the time of occurrence---Testimony of both the alleged eye-witnesses were contradictory with each other on material events and circumstances of the occurrence---Both the eye-witnesses had failed to prove their presence at the spot through physical circumstance or corroborative evidence---Neither any grass allegedly cut by witnesses nor any sickle had been shown recovered from the spot so as to corroborate their testimonies and established their presence---Testimony of eye-witnesses being suffered from major contradictions and discrepancies cutting the very roots of the prosecution case could not be believed and relied upon for conviction in a capital charge---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Reliance---Scope---Accused were charged for committing murder of son of the complainant by firing---Record showed that two crime empties of 7.62 bore were recovered from the spot---General role of firing had been attributed to three accused persons including the accused (appellant)---Effective fire shots on the person of the deceased had not been specifically attributed to the accused persons---No crime weapon had been recovered either from direct or indirect possession of the accused persons---No Forensic Science Laboratory Report was available about the two 7.62 bore empties as to whether those had been fired from one or more than one weapons---However, from recovery of 7.62 bore empties, one thing could be inferred that weapon used in the offence was Kalashnikov, which was an automatic weapon ejecting number of shots in seconds---If the occurrence was considered to be the job of three accused then much damage would have been caused to the deceased and large number of empties might have been recovered from the spot, but such was not the case herein---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material---Reliance---Scope---Accused were charged for committing murder of son of the complainant by firing---Recovery of blood from the spot, the last worn blood-stained garments of the deceased, positive serologist report in respect thereof coupled with post-mortem of the deceased, though, confirmed the unnatural death of the deceased with firearm at the spot as alleged by the prosecution, but never told the names of the culprits---Such supporting and corroborative evidence were always taken into consideration along with direct evidence and not in isolation.

Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541 and Saifullah v. The State 1985 SCMR 410 rel.

(g) Criminal trial---

----Absconsion---Scope---Mere abscon-dence of accused could not be a substitute of real evidence---Abscondence by itself would be of no avail to the prosecution in the absence of any other evidence against the absconding accused---Mere abscondence of accused would not be enough to sustain conviction.

Muhammad v. Pasham Khan 1986 SCMR 823 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---One substantial doubt would be enough for acquittal of accused---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in prosecution case must be resolved in favour of the accused.

Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Ikram v. The State 2009 SCMR 230 and Khizar Hayat's case PLD 2019 SC 527 rel.

Muhammad Saeed Khan and Shabbir Hussain Gigyani for Appellants.

Mujahid Ali Khan, A.A.G. for the State.

Qari Shoaib brother of the Complainant Respondent No.2.

YLR 2020 PESHAWAR HIGH COURT 1776 #

2020 Y L R 1776

[Peshawar ]

Before Muhammad Naeem Anwar, J

HAYAT ULLAH---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PESHAWAR and 4 others---Respondents

Writ Petition No. 2331 of 2018, decided on 17th January, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 53 & 172 (2)(vi)---Entries in revenue record---Correction---Principle---Petitioner sought correction of longstanding entries in revenue record but Board of Revenue dismissed revision petition filed by him---Validity---No clerical or arithmetical error in the record of rights was pointed out but petitioner wanted deletion of a name from longstanding entries---Strong presumption of truth was attached to such entries though rebuttable---In order to rebut such entries there should have been concrete, positive, tangible and convincing evidence and the same was lacking---Petitioner himself was not clear about the situation or true picture of revenue papers---Petitioner was supposed to be aware of with clarity of mind for the specific relief he had asked for---Board of Revenue had left open for petitioner to get the matter resolved from competent forum---High Court declined to interfere in the order passed by Board of Revenue as the petitioner failed to point out any jurisdictional defect, patent illegality or any infirmity in the same---Constitutional petition was dismissed in circumstances.

2009 CLC 542; PLD 1991 Lah. 314; PLD 2009 Pesh. 28; 1992 SCMR 2334; 2017 CLC 264; 1996 SCMR 78 and 2017 YLR 492 ref.

PLD 2008 SC 571; Mst. Khurshid Bibi and others v. Liaqat Ali and others 2010 YLR 2729; Pakistan Flour Mills Peshawar v. Mian Muhammad 1989 CLC 116; PLD 1962 WP Board of Revenue III P-1963 WP Board of Revenue 68, 1992 CLC 605; 2006 CLC 1182; Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Muhammad Yousaf and 3 others v. Khan Bahadur through legal heirs 1992 SCMR 2334; PLD 2019 Pesh. 208 and 2017 YLR 1492 rel.

Petitioner in person.

Umar Farooq, A.A.G. for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1827 #

2020 Y L R 1827

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Sahibzada Asadullah, JJ

PIO REHMAN---Petitioner

Versus

SAFEER BADSHAH and others---Respondents

Criminal Appeal No. 101-B of 2012, decided on 7th October, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Appeal against acquittal---Chance witnesses---Non-availability of justification for presence at the place of occurrence---un-natural conduct of eye-witnesses---Scope---Accused were charged for committing murder of the deceased---Motive behind the occurrence was dispute over property---Ocular account of the incident had been furnished by two witnesses including complainant---Record showed that motive was shown as property dispute between the parties, but it was surprising that when the dispute was common then why only the deceased was targeted when the other two were also at the mercy of accused---Accused was shown armed with AK-47, a sophisticated weapon and the selection of the weapon left no doubt in mind, had the witnesses been present at the time on the spot their fate would be no less than the deceased---Record was silent as to why the two who were leading the deceased did not receive even a single fire arm injury---Said fact showed that the eye-witnesses were not present at the time with the deceased---Witnesses remained inconsistent and made conscious improvements---Eye-witnesses admitted the presence of 2/3 feet ridge between them whereas the Investigating Officer confirmed its height as ¾ feet, then why the assailants would expose their identity and why they did not take shelter behind, on one hand to accomplish their target and on the other to avoid of having been identified---Surprisingly, three persons made indiscriminate firing but only one empty of 7.62 bore was recovered from the spot---Though, the Investigating Officer in his examination-in-chief stated that the site-plan was prepared on pointation of the eye-witnesses but the witnesses denied to accept the same as they excluded the presence of each other---Eye-witness when cross-examined stated that he after post-mortem examination hired a taxi and reached the spot where Investigating Officer and complainant were present and pointed out the spot---Investigating Officer said that after spot pointation by the complainant, they went to the house of the deceased where eye-witness was present, so in his company they again came to the spot for pointation---Once the spot had already been pointed by the complainant and the recoveries were effected then what led the Investigating Officer to come again to the spot with witnesses---Said fact led to conclude that the witnesses were not present with the deceased and the dead body was taken to police station by the nearby villagers and later on the witnesses were procured and accused along with others were charged---Eye-witnesses said that the villagers by hearing the fire shots came to the spot after 30/35 minutes with a cot---Nothing on record as to how did the villagers come to know that someone was killed and a cot was needed to shift the body to hospital as none from the eye-witnesses informed them---Said fact left no ambiguity that the witnesses were informed about the incident in the village which admittedly was situated at a 30 minute's walk---Eye-witnesses said that the cot was taken to the police station on foot whereas complainant stated that the dead body was brought to police station in vehicle---Circumstances established that eye-witnesses were not present at the spot at the time of occurrence, thus prosecution had failed to connect the accused with the offence---Appeal against acquittal was dismissed accordingly.

Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Interested witnesses---Reliance---Scope---Accused were charged for committing murder of the deceased---Record showed that the deceased and the witnesses were involved in criminal cases including abduction of ladies and that position was frankly conceded by the Investigating Officer rather he admitted that the deceased was a criminal and a thief---Admitted joint enmities of deceased and witnesses with others and criminal association of witnesses with the deceased confirmed their status of interested and chance witnesses---Evidence of such witnesses had no worth to rely thereupon.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Motive was not proved---Scope---Accused were charged for committing murder of the deceased---Motive behind the occurrence was dispute over property---In the present case, though the alleged motive was a property dispute, but no revenue record was placed on file to substantiate the claim of the witnesses---Even the Investigating Officer did not collect evidence in that respect---Motive was not proved, in circumstances.

(d) Criminal trial---

----Motive---Scope---Once motive is alleged the prosecution is bound to prove the same, failing which negative inference would be taken against the prosecution.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(e) Criminal trial---

----Absconsion---Scope---Mere absconsion was not a conclusive guilt of an accused person---Absconsion was only a suspicious circumstances against accused that he was guilty of the offence---Suspicion could not take the place of proof---Value of absconcion, therefore, depended on the facts of each case.

Liaqat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

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

----S. 417---Appeal against acquittal---Presumption--- Double presumption of innocence is attached to the order of acquittal---Interference is unwarranted, unless the acquittal order is arbitrary, capricious, fanciful and against the record.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel.

Quaid Ullah Khan Khattak for Appellant.

Shahid Hameed Qureshi, Additional A.G. for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1850 #

2020 Y L R 1850

[Peshawar]

Before Ahmad Ali, J

Mst. SANA GUL and 3 others---Petitioners

Versus

USMAN KHAN and 2 others---Respondents

Writ Petitions Nos. 2892-P and 4083-P of 2019, decided on 11th October, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suits for recovery of dower, maintenance allowance for wife and minors---Desertion of wife---Effect---Defendant-husband had not paid the dower claimed by the plaintiff-wife---Plaintiff-wife was entitled for recovery of entire dower in the shape of seven tolas gold ornaments---Plaintiff-wife could refuse to perform matrimonial obligation if entire dower had not been paid to her---Desertion of wife could not be considered as her disobedience, in circumstances---Defendant-husband was bound to maintain his wife until and unless he had paid the dower---Plaintiff-wife had not been paid maintenance during the period of desertion and she was entitled for maintenance @ Rs. 5,000/- per month from the date of institution of suit till payment of dower and provision of separate accommodation to her---If plaintiff-wife after receiving dower and provision of separate accommodation refused to honour the decree of restitution of conjugal rights then she would not be entitled to maintenance allowance---Maintenance allowance for the minors fixed by the Courts below was insufficient to meet their requirements which was enhanced to Rs. 5,000/- per month for each child with further increase @ Rs. 10% per annum---Constitutional petition was disposed of, accordingly.

Muhammad Mujeeb for Petitioners.

Gul Jalil Khan for Respondent No.1.

YLR 2020 PESHAWAR HIGH COURT 1869 #

2020 Y L R 1869

[Peshawar]

Before Wiqar Ahmad, J

DIRECTOR-GENERAL PROVINCIAL DISASTER MANAGEMENT AUTHORITY (PDMA) and 2 others---Appellants

Versus

Qazi BADAR-UL-WAHAB and 2 others---Respondents

R.F.A. No. 83-P of 2018, decided on 6th September, 2019.

Land Acquisition Act (I of 1894)---

----Ss. 18, 23 & 4---Enhancement of compensation--- Market value---Determination of---Procedure---Report of local commission--- Scope--- Local commission suggested compensation amount as Rs. 1,50,000/- per marla---Referee Judge enhanced the amount to Rs. 75,000/- per marla along with 15% compulsory acquisition charges and 6% simple interest---Validity---Referee Judge adopting a cautious approach had not fixed amount of compensation at Rs. 1,50,000/- per marla as suggested by the local commission---Court below was justified in enhancing the amount of compensation as Rs. 75,000/- per marla---Land acquired was situated on the main road had potential value---While determining the amount of compensation not only market value was to be taken into account but the person being deprived of his land against his will was to be adequately compensated---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment passed by the Court below---Appeal was dismissed, in circumstances.

Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/ Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Muzaffar Khan and 3 others v. Government of N.W..F.P through Secretary Education, Peshawar and 2 others 2016 CLC 1867; Fazalur Rahman and others v. General Manager, S.I.D.B and another PLD 1986 SC 158; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 and Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi PLD 2002 SC 25 rel.

Muhammad Sohail, Asstt. A.G. for Appellants.

Muhammad Tariq Khan Yousafzai for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1917 #

2020 Y L R 1917

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ijaz Anwar, J

STATE through Regional Director ANF, Peshawar and others---Appellants

Versus

JAMSHED and others---Respondents

Criminal Appeals Nos.359-P, 368-P and Writ Petition No. 2414-P of 2015, decided on 11th March, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 233 & 235---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)---Possession of narcotics---Appreciation of evidence--- Appeal against acquittal--- Consolidation of cases---Separate offences---In the present case, there were two separate incidents in which one FIR was registered on 15.04.2014 under S.9(b) of the Control of Narcotic Substances Act, 1997, on the next day, another FIR under S.9(c) of the Act was registered---Said two cases were separately tried, separate evidence was recorded, even statement of accused was recorded separately---Both the accused were acquitted through a consolidated order---Validity---Writing consolidated judgment by the Trial Court in two separate trials was not a material irregularity which could vitiate the whole trial---Said irregularity could be cured by re-writing two separate judgments in the said trials because the trials were independently held---Appeal was allowed by setting aside the order of acquittal and the matter was remanded back to the Trial Court with direction to re-write separate judgments of each trial in accordance with law after hearing the parties.

Nur Elahi v. The State PLD 1966 SC 708; Ahmad Khan v. Commissioner Rawalpindi Division PLD 1965 (W.P.) Pesh. 65; Muhammad Naeem v. Muhammad Ismail and another 1997 PCr.LJ 1446; State v. Qalandar Khan PLD 1971 Pesh. 119 and Muhammad Yasin v. The State PLD 2011 Lah. 583 rel.

Tariq Kakar for Appellant.

Kifayatullah Khan Shahab Khel for Respondents.

YLR 2020 PESHAWAR HIGH COURT 1997 #

2020 Y L R 1997

[Peshawar]

Before Ahmad Ali, J

SYED MUHAMMAD---Petitioner

Versus

Mst. FEROZA and 3 others---Respondents

Writ Petition No.4151-P of 2019, decided on 7th October, 2019.

(a) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Eviction of tenant---Ex-parte decree, setting aside of---Sufficient cause---Waiver---Scope---Rent Controller, on the application of landlady for eviction of tenant, directed the tenant to deposit Rs. 31,25,000/- as tentative rent---Tenant assailed the said order in Constitutional petition, which was dismissed---Notice for pursuance of the eviction petition was personally served on the tenant but thereafter he failed to appear before the Rent Controller---Ex-parte proceedings were initiated which culminated into an ex-parte decree---Tenant was arrested and produced before the executing court, whereupon he filed an application under S.12(2), C.P.C., contending therein that the parties had arrived at a private settlement---Tenant pleaded that he had paid an amount of Rs. 7,50,000/- to the landlady and another person was entered in the demised premises as tenant by the landlady---Application under S.12(2), C.P.C. was dismissed and appeal against said order was also dismissed---Validity---Held, it did not appeal to mind that a party who had a solid claim for recovery of Rs. 4.62 million (on the date of dismissal of Constitutional petition) would settle the matter on payment of Rs. 0.75 million, particularly when the receiving party was at a strong footings---No explanation was advanced to the effect as to why the tenant did not bother to pursue the case---Providing a remedy to tenant was unfair as his conduct was equivalent to a waiver---Constitutional petition was dismissed in limine.

Park View Enclave (Pvt.) Ltd. Through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others 2018 CLC 947 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Discretionary jurisdiction--- Scope---Constitutional remedies being extraordinary, no one is entitled to claim exercise of discretionary power as of right.

Muhammad Hussain's case 2010 SCMR 286 ref.

----Equity aids the vigilant and not those who sleep on their rights.

(d) Equity---

----Courts cannot come to the rescue of persons, who are not vigilant regarding their rights.

Wazir and others v. Haji Dilbar and others 2017 CLC Note 83 ref.

(e) Equity---

----One who seeks equity, must do equity.

(f) Equity---

----Delay defeats the equity.

Mian Abdul Aziz Quraishi for Petitioner.

YLR 2020 PESHAWAR HIGH COURT 2073 #

2020 Y L R 2073

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MEHBOOB SHAH---Petitioner

Versus

Sardar ALI KHAN and 10 others---Respondents

Civil Revision No. 7-B of 2016, decided on 27th February, 2020.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Pre-emptor, in order to succeed, must prove essential conditions for exercise of right of pre-emption---Plaintiff was not only required to prove Talb-i-Muwathibat but bound to establish Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise right of pre-emption---Contradictions with regard to time of performance of Talb-i-Muwathibat were on record---Where a fact was required to be proved through oral evidence, such evidence must be direct and of primary source---If informer had taken different stance of facts from the facts narrated in the plaint then same could not be considered trustworthy and acceptable---Mere sending of notice of Talb-i-Ishhad by the pre-emptor was not sufficient and acknowledgment-due slip should have been signed by the vendee and not any other person---Nothing was on record that notice of Talb-i-Ishhad was dispatched to the defendants or received by them---Sending of notice of Talb-i-Ishhad to the defendants had not been proved in circumstances---Even pre-emptor had not examined scribe of notice of Talb-i-Ishhad---Pre-emptor had failed to establish Talb-i-Muwathibat and Talb-i-Ishhad, in circumstances---No illegality or infirmity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others 2007 CLC 819; Haji Muhammad Usman through his legal heirs v. Muhammad Paryal 1987 CLC 552; Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 and Muhammad Rafique v. Muhammad Shafique and others 2013 YLR 145 rel.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- Concurrent findings of Courts below could not be interfered with unless same were against evidence resulting into miscarriage of justice.

Hafiz Muhammad Hanif for Petitioner.

Haji Habibur Rehman for Respondents.

YLR 2020 PESHAWAR HIGH COURT 2094 #

2020 Y L R 2094

[Peshawar]

Before Muhammad Naeem Anwar, J

IFTIKHAR KHAN---Petitioner

Versus

SIKANDAR KHAN and 7 others---Respondents

Writ Petition No. 1167-P of 2019, decided on 2nd December, 2019.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 79, 113 & 129(g)---Eviction of tenant---Suit for specific performance of agreement to sell---Proof of execution of document required by law to be attested, facts admitted need not be proved, withholding best evidence---Scope---Landlords claimed that the suit property was rented out to the tenant by their predecessor whereas tenant claimed that he had bought the suit property through agreement to sell from the predecessor of landlords---Validity---Tenant produced one marginal witness and notary public but none of them stated that the money changed hands in their presence---Recitals of the agreement to sell showed that entire sale consideration was paid in lump sum whereas the witnesses stated that sale consideration was paid in three installments---Tenant did not produce the second marginal witness without any plausible reason---Landlords were not required to produce marginal witnesses of the rent deed as it was admitted by the tenant---Relationship between the parties as tenant and landlord stood proved---Rent Controller and Appellate Court had rightly appreciated the evidence on record---Constitutional petitions filed by tenant were dismissed, in circumstances.

Iftikhar Ali Qadir for Petitioner.

Qazi Muhammad Aqil Khan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 2206 #

2020 Y L R 2206

[Peshawar]

Before Muhammad Naeem Anwar, J

MAZULLAH KHAN---Petitioner

Versus

Mst. TARAJA BEGUM and others---Respondents

Writ Petition No. 1681-P of 2016, decided on 3rd February, 2020.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.135---Partition of landed property---Requirements---Partition decree, setting aside of---Petitioner moved application for setting aside of partition decree on the ground that he was owner of property at the time of filing of partition application but he had not been impleaded in the same---Application for setting aside of partition decree was dismissed by the revenue hierarchy---Validity---Petitioner was owner of property which was subject matter of partition proceedings---Owners of the landed property should be parties to the partition petition and entire joint property should be partitioned---Partial partition was not permissible under the law---Procedure adopted for partition of landed property without impleading a person/owner in the petition for partition would be against the principles of natural justice---Revenue Officer had dismissed the application of petitioner on the ground of limitation which was not justified---Limitation was to be considered from the date of knowledge of petitioner as he was not party to the partition proceedings---Entire process of partition was nullity as petitioner had not been impleaded in the partition application---Petitioner being owner of property was required to be impleaded as party in the partition petition---No effective decree could be passed in absence of petitioner, in circumstances---Impugned orders were set aside---Partition application should be deemed to be pending before the Revenue Officer who should implead the petitioner in the array of respondents and decide the same in accordance with law---Constitutional petition was allowed accordingly.

Mst. Asia Rizi and others v. Mian Muhammad Khan and others 2019 CLC 1333 and Mst. Waziran Mian through legal heirs and 29 others v. Riaz Ahmed and 3 others (2011 YLR 1327 rel.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 135---'Partition'---Meaning and scope.

Legally, partition of property means to bring proceeding in the Court to force the physical division of property or to get separate the shares of any joint owner from the joint property. Partition is normally commenced by one of the co-owners, filing an application before the Court of competent jurisdiction by impleading all the joint owners. Any person with an existing interest in the property may bring the action for partition and vice-versa against whom the partition is sought.

Gul Sadbar Khan for Petitioner.

Saadat Ullah Khan for Private Respondents.

Muhammad Riaz Khan, A.A.G. for Official Respondents.

YLR 2020 PESHAWAR HIGH COURT 2224 #

2020 Y L R 2224

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah, J

Mst. KALSOOM BIBI---Petitioner

Versus

JAVED IQBAL and others---Respondents

Writ Petition No. 815-D with C.M. No.900-D of 2019, decided on 5th December, 2019.

Family Courts Act (XXXV of 1964)---

----S. 13---Civil Procedure Code (V of 1908), O. XXI, R. 32---Enforcement of decree--- Decree for specific performance for restitution of conjugal rights---Scope---Petitioner/wife filed suit for recovery of dower, dowry articles and maintenance allowance whereas respondent/husband contested the suit by submitting his written statement and also prayed for restitution of conjugal rights---Prayer of the respondent was allowed subject to payment of past maintenance---Respondent sought attachment of the property of petitioner for not performing conjugal rights---Petitioner, in response to the execution petition, approached the executing court with the stance that she could not join her husband because of life threats---Executing court consigned the execution petition and allowed the respondent to withdraw the amount deposited with the Court Nazir in connection with conditional decree of past maintenance---Appellate court set aside the order passed by executing court and restored the execution petition---Validity---Wife could not be forced to join her husband pursuant to a decree for restitution of conjugal rights when she apprehended serious threats to her life---Order XXI, R. 32, C.P.C. empowered the executing court to attach the property for the purpose of enforcement of the decree regarding restitution of conjugal rights, but it was discretionary with the court and not mandatory and being so, it ought to be exercised judiciously and carefully---Refusal of petitioner could not be construed as a wilful refusal of the decree and thus, her property could not be attached---Constitutional petition was accepted and the order passed by appellate court was set aside and that of executing court was restored.

Muhammad Wahid Anjum for Petitioner.

Muhammad Ghazanfar Ali for Respondent No.1.

YLR 2020 PESHAWAR HIGH COURT 2242 #

2020 Y L R 2242

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Sahibzada Asadullah, JJ

QAIZER KHAN---Appellant

Versus

The STATE and a nother---Respondents

Criminal Appeal No. 12-D of 2019, decided on 15th October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---Chance witnesses---Unnatural conduct of eye-witnesses---Scope---Prosecution case was that on 09.09.2015 at 0300 hours, complainant in injured condition made report to the local police that accused made firing upon him with his 30-bore pistol with the intention to commit his qatl-i-amd, as a result of firing, he was hit on his back, later he succumbed to the injuries---Motive behind the incident was that the accused attempted to commit unnatural act with his son, complainant was going to the house of accused for complaint when the incident occurred---Daily diary showed that case was entered at 2.00 p.m. when the accused was taken to hospital in injured condition---In the said report, accused charged the deceased along with two witnesses for the injuries on his body at 9.00 p.m. on 08.09.2015---Said report was not taken to a logical conclusion and was abandoned---Record was silent as to why both the injured were received in the hospital with an abnormal delay---Eye-witness was allegedly standing at a distance of 12 paces, in the dark---How one could recognize the deceased and the accused and how could one say with certainty that the accused was armed with a 30-bore pistol---No attempt was made to catch hold the accused despite of the fact that the accused was of tender age---Real brother of the deceased being witness stated that he was informed by victim that he left after the deceased and while he was proceeding towards the house of the accused, he came across the accused with pistol in his hand and at a little distance, the deceased was injured and lying on the ground---Said witnesses had stated that the injured was shifted to his house but none of the said witnesses accompanied the injured to the hospital---Despite the fact that the injured was fighting battle of life and death, he was not shifted to the hospital to save his life, and was kept without providing first aid---Witness who had taken the injured to the hospital tried his utmost to cover the delay and he tendered abnormal explanation in that respect, which could not convince rather tarnished the character of the said witness---Said witness was not shown present with the deceased then injured in the hospital, neither the police nor the Medical Officer stated a word regarding his presence---Injury sheet, Medico Legal Report and even the report was totally silent regarding his presence---If the said witness was present with the injured at the time of report, surely he could have verified the report---Delay in reporting the incident and non-presence of witness with the injured in the hospital led to hold that the witnesses were chance and interested witnesses---If the stance of the accused which was taken (as per daily diary) into consideration, it led to a total uncertainty as to what happened at the time which led to injuries and later on death of the deceased---Witnesses had not come with the whole truth and they could not establish their presence at the relevant time on the spot---Circumstances established that the prosecution case was highly doubtful---Appeal against conviction was allowed, in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419; Javed Ahmad alias Jaida v. The State 1978 SCMR 114; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Imran Ashraf and others v. The State 2001 SCMR 424; Zafar Hayat v. The State 1995 SCMR 896; Allah Ditta v. The State 1999 YLR 1478 and Muhammad Akram v. The State 2008 PCr.LJ 993 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Accused was charged for committing murder of the complainant---Motive behind the incident was that the accused attempted to commit unnatural act with his son, complainant was going to the house of accused for complaint and the incident occurred---Record showed that there was no previous motive between the parties but what was conveyed by victim to his deceased father, the story forwarded by the deceased while injured that he had gone to the accused to register a complaint with him for what he had done to his son in the afternoon---If deceased had gone after the elders of the accused then it could be acceptable that the purpose was no more but to convey his grievances but, his going after the accused told nothing but to fix him and that was what the daily diary suggested where the scribe also noted down that he also prepared injury sheet of the accused, though onward in that respect the prosecution as well as the accused maintained silence--- Circumstances established that the prosecution case was highly doubtful and had not been proved beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. The State 1988 PCr.LJ 63 rel.

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Dying declaration, reliance on---Scope---Accused was charged for committing murder of the complainant---Prosecution had erected the structure of its case on the dying declaration of deceased as the report was stated to be made by the deceased then injured in the hospital---No certificate was requested from the Medical Officer concerned that the patient was oriented in time and place---Murasila had not been attested from the Medical Officer and even the Medical Officer in his statement did not mention that the injured was capable to talk and neither his pulse was recorded and so the blood pressure---Prosecution failed to establish that the report was made by the deceased then injured and that at the time of report, deceased was free from all influences---Record was silent as to why the injured witness was brought with an abnormal delay to the hospital with no first aid and when left unattended, could he retain his faculties to talk and understand---Circumstances established that statement of deceased could not be treated as "dying declaration"---Appeal against conviction was allowed, in circumstances.

Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449 rel.

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

----Art. 46---Dying declaration---Evidentiary value---Scope---No doubt, dying declaration was an important piece of evidence and that sanctity was attached to the dying declaration, because a dying man was not expected to tell lie, but the same was always considered as weak type of evidence being un-tested by cross-examination.

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

----Art. 46---Dying declaration---Ingredients---Prosecution had to establish that whether the maker of dying declaration had the physical capacity to make the same; whether the maker had opportunity to identify the assailants; whether there was a chance of mis-identification on the part of dying man in identifying and naming the attackers; whether it was free from prompting from any outside quarter; whether the witness, who heard the deceased making his statement, heard him correctly and whether his evidence could be relied upon.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of the complainant, then injured---One 30-bore pistol was recovered on the pointation of accused from a cow dung hill---Record transpired that no independent witness was associated at the time of recovery of the pistol and S.103, Cr.P.C. was not complied with---Nothing had been brought on record that the house from where the recovery was effected was the house of the accused---No empty was recovered from the spot, therefore, the pistol so recovered had lost its evidentiary value, particularly in the murder case---Circumstances established that the prosecution case was highly doubtful and had not been proved beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ghulam Hur Khan Baloch for Appellants.

Ch. Javed Akhtar and Muhammad Bilal Kundi for the State.

YLR 2020 PESHAWAR HIGH COURT 2297 #

2020 Y L R 2297

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Hafiz ABDUL SALAM---Petitioner

Versus

HASSAN DIN---Respondent

Civil Revision No. 291-A of 2007, decided on 12th March, 2020.

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

----S. 65 & O. XXI, Rr. 89, 90 & 91---Transfer of Property Act (IV of 1882), Ss. 60 & 61---Suit for declaration and possession through redemption---Execution petition---Sale of immovable property in execution of a decree---Setting aside of---Requirements---Limitation---Mortgagee filed a suit for declaration for recovery of mortgage amount which was ex-parte decreed and execution petition was moved---Auction of mortgaged property was conducted during execution proceedings and sale certificate was issued and property was sold in favour of auction purchasers---Mortgagor moved application for setting aside of ex-parte decree which was accepted---Mortgagor and mortgagee thereafter filed suits for declaration and redemption against each other---Suit of mortgagor was decreed but that of mortgagee was dismissed---Validity---Judgment-debtor could apply for setting aside of a sale of immovable property in execution of decree before its confirmation upon satisfying the decretal debt and paying compensation to the auction purchaser for the loss of bargain---Sale of immovable property in execution of a decree could be set aside on the ground of irregularity or fraud in conducting the said sale---Applicant for setting aside such sale had to prove substantial injury by such irregularity or fraud---No such application could be entertained unless amount not exceeding twenty percent of the sum realized at the sale or security had been deposited---Auction purchaser had right to move an application for setting aside of such sale on the ground that judgment-debtor had no saleable interest in the property which had been sold---Application for setting aside sale of immovable property in execution of a decree could be moved within a period of thirty days from the date of sale---Where immovable property had been sold in execution of a decree and such sale had become absolute then such property would be deemed to have vested in the purchaser from the time when property was sold and not from the date when sale had become absolute---Such sale of property would not automatically wipe out even if it was found that decree under which sale was ordered had been set aside without resorting to O.XXI, Rr. 89 to 91 of C.P.C.---Sale in the present case had not only been confirmed but a court certificate of sale had also been issued---Non-observance of procedural law would create impediment on the way of fair trial---Courts below had nullified a valid sale in execution merely because decree had been wiped out which had resulted in miscarriage of justice---Impugned judgments and decrees were set aside to the extent of setting aside of auction and sale of suit property---Plaintiff could move an application for setting aside of sale in accordance with law if so desired---Revision was allowed, accordingly.

Muslim Commercial Bank through Manager / General Attorney v. Fashion Pride (Private) Ltd. through Chief Executive and 5 others 2016 CLD 124; Birdichand v. Ganpatsao AIR 1938 Nag 525; Ambujamman v. Thangaullah Chattier AIR 1941 Mad. 399; S. Chokalingam v. N.S. Kirighna AIR 1964 Mad. 404; Mani Lal v. Ganga Prasad AIR 1951 All. 832; Dr. Mrs Zulaikha Mahmood v. Presiding Officer Banking Court No.1 Karachi and 04 others 2003 CLD 550; Mst. Hanijan Bibi v. Lal Din through legal heirs and another 2000 CLC 572; Messrs Habib and Company and others v. Muslim Commercial Bank Limited and others 2019 SCMR 1453; Hudaybia Textile Mills Ltd. and others v. ABL Ltd and others PLD 1987 SC 512; Muhammad Asghar v. Hussain Ahmed PLD 2014 SC 89; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar PLD 1975 SC 678 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 rel.

(b) Administration of justice---

----When law required a thing to be done in a particular manner then it would be nullity in the eye of law if not done in that very prescribed manner.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 and Asghar Ali Khan and 4 others v. Janan and 15 others 2017 YLR 301 rel.

----Litigant was not to be knocked out on technical grounds.

Muhammad Ayub for Petitioner.

Hafiz Iftikhar Ahmad for Respondent.

YLR 2020 PESHAWAR HIGH COURT 2350 #

2020 Y L R 2350

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

JEHANGIR KHAN through Attorney---Petitioner

Versus

Mst. SAEEDA BEGUM and 2 others---Respondents

Writ Petition No. 402-A of 2018, decided on 2nd March, 2020.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Nikahnama, Column Nos. 17 & 20---Suit for recovery of maintenance allowance and residential house---Column No. 17 of Nikahnama was silent whether residential house was given to the plaintiff-wife either in lieu of dower or as a gift---Suit house had been given to the plaintiff as a part of dower or gift in consideration of marriage in circumstances---Family Court had exclusive jurisdiction in the matter---Plaintiff according to Column No. 20 of Nikahnama was entitled for maintenance @ Rs. 5,000/- per month---Plaintiff-wife had left the house of defendant due to non-payment of maintenance allowance---Courts below had rightly held that wife had not self deserted---Trial Court had rightly held that wife was entitled for maintenance @ Rs. 5,000/- per month for last three years and further maintenance allowance at the same rate till subsistence of marriage and had declined to grant maintenance beyond period of three years---Judgment and decree of Appellate Court to the extent of recovery of maintenance beyond three years with 15% increase was illegal and same were set aside and those of Family Court were restored---Constitutional petition was partially allowed.

Ahmad Hussain Tanoli for Petitioner.

YLR 2020 PESHAWAR HIGH COURT 2402 #

2020 Y L R 2402

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

ABDUL WAKEEL---Appellant

Versus

The STATE through Additional Advocate General Khyber Pakhtunkhwa and another---Respondents

Criminal Appeal No. 218-M of 2019, decided on 18th December, 2019.

Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----Ss. 9, 8, 11, 12 & Preamble---Unlicensed possession of arms---Prohibition of going armed without license---Power to make rules as to licenses---Powers of the Government as to the description and licensing---Licence issued by law enforcement agency---Effect---Appellant assailed the order passed by Trial Court whereby he was acquitted but no direction for return of SMG rifle recovered from his residential room was given---Contention of appellant was that members of the law enforcement agency and the local police had authorized him to keep the weapon---Preamble of the Khyber Pakthunkhwa Arms Act, 2013 had explained that "whereas it was expedient to regulate the manufacture, conversion, repair, sale, transportation, bearing or possession of arms or ammunition in the province of the Khyber Pakthunkhwa, in the manner as provided in the Act"---Sections 8, 9, 11 & 12 of the Act provided for the prohibition of going armed without license and laid down that no person would go armed with any arms except under a license and to the extent and in the manner permitted thereby; unlicensed possession of arms; power of government to make rules for determining the officers by whom and the form in which, any licence would be granted or renewed including the period of licenses and fee payable, and reserved the right of the Government to issue the description of the prohibited and non-prohibited bores---Powers to issue license for non-prohibited bores was exclusively given to the Government under subsection (2) of S.12 of the Act---Officers of law enforcement agencies, on whose authorization the appellant had been banking on, were never so notified by the Government in the official gazette under S.11 of the Act to be the competent authority for issuance of arms licenses---Permission to the appellant to possess weapons by such officers was of no help---Rifle in question could not be handed back to the appellant---Appeal was dismissed.

Saeed Ahmad v. The State 1971 SCMR 774; Rai Bashir Ahmad v. The State 1971 PCr.LJ 255; Mukhtar Ahmad v. The State PLD 1963 (W.P.) Lahore 451; The Director Intelligence and Investigation (Custom) FBR, Islambad and another v. Fazal Ghani and others Criminal Petition No. 802 of 2015 and Bhutto Khan and 4 others v. Inspector General of Police KPK, Peshawar and 4 others 2018 PTD 1716 rel.

Akhtar Munir Khan for Appellant.

Sohail Sultan, Asstt. A.G. for Respondents.

YLR 2020 PESHAWAR HIGH COURT 2440 #

2020 Y L R 2440

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

SHAH ALAM KHAN and 2 others---Petitioners

Versus

BOARD OF REVENUE N.W.F.P. and 47 others---Respondents

Writ Petition No. 720-P of 2007 (With Interim Relief), decided on 16th October, 2019.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 44, 45 & 53---Correction of entries in the settlement record---Petitioners moved application for correction of entries in the settlement record---Assistant Collector (Revenue) dismissed the said application with advice to approach the appropriate forum but said order was set aside by the Board of Revenue---Validity---Factual controversy was involved in the present case which required evidence before civil Court---Tehsildar had rightly expressed his inability to alter the entries made in the settlement record which was finalized more than two decades before filing of present application---Application for correction of entries was not maintainable in circumstances---Revenue Officer could correct entries during the course of preparation of land record but old entries could not be altered when rights of other persons had been created on the basis of such entries---Revenue Officer had no jurisdiction to correct entries in the settlement record, as many transactions had taken place and rights of many people had been created through such entries---Grievance of petitioners could only be redressed by the civil Court---Impugned order passed by the Board of Revenue was illegal and suffered from jurisdictional defect which was set aside---Constitutional petition was accepted, in circumstances.

Muhammad Yousaf and 3 others v. Khan Bahadur through legal Heirs 1992 SCMR 2334; Waris Khan and 18 others v. Col. Humayun Shah and 41 others PLD 1994 SC 336 and Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78 rel.

Muhammad Ali Khan for Petitioners.

Mian Kausar Hussain for Respondents Nos. 5 to 12.

Nemo for rest of the respondents.

YLR 2020 PESHAWAR HIGH COURT 2474 #

2020 Y L R 2474

[Peshawar]

Before Ahmad Ali, J

GOHAR ALI---Petitioner

Versus

Mst. GULRAIZA and others---Respondents

Writ Petition No. 6541-P of 2019, decided on 1st January, 2020.

Civil Procedure Code (V of 1908)--

----S. 12(2)---Registration Act (XVI of 1908), S. 17---Judgment, setting aside of---Un-registered document---Effect---Petitioner claimed to be owner in possession of suit property on the basis of an unregistered agreement allegedly executed in the year, 1994---Petitioner sought setting aside of judgment and decree passed in a suit for partition of said house---Trial Court as well as Lower Appellate Court dismissed application under S.12(2), C.P.C. and revision application respectively filed by petitioner---Validity---Superstructure of application under S.12(2), C.P.C. was built upon an unregistered document purportedly executed in year 1994---Petitioner slept over his alleged rights and made no efforts to get transfer the suit house in his name through any registered instrument or any other legal means---Even after the death of executor of the document in year 1996, the petitioner remained idle and he had not taken any step to enforce his alleged rights---Petitioner, in the year 2015, after a long period of 24 years, agitated his purported rights through application under S.12(2), C.P.C.---Petitioner had tried to get himself declared owner on the basis of application under S.12(2), C.P.C. in a shortcut manner---Rights of petitioner on the basis of purported document were pre-mature and the stale document did not provide petitioner a legal right to file application under S.12(2), C.P.C.---Document dated 28.10.1994 was a compulsorily registerable document and its non-registration rendered the document nullity in the eyes of law---High Court declined to interfere in concurrent orders passed by two Courts below---Constitutional petition was dismissed in circumstances.

YLR 2020 PESHAWAR HIGH COURT 2503 #

2020 Y L R 2503

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Sahibzada Asadullah, JJ

FAIZ MUHAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.3-D of 2019, decided on 26th November, 2019.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delayed FIR---Un-natural conduct of eye-witnesses---Effect---Withholding best evidence---Sending of empties along with weapon---Negative report of Forensic Laboratory---Motive, not proved---Scope---Accused was alleged to have murdered the mother of complainant within his presence and two of his brothers ---Conduct of eye-witnesses was against normal human conduct as none of them tried to make any effort to save the life of their mother and overpower the accused---One of the three alleged eye-witnesses was not produced---Report was lodged by the complainant with a delay of four hours---Investigating Officer had recovered three empty shells of 12 bore shotgun on 13.10.1994 but the same were sent to the Forensic Laboratory on 21-09-2016 along with shotgun, which were received in the Forensic Laboratory on 04-10-2016, where it was opined that those were not fired from the shotgun in question---Motive was not proved by the prosecution through conclusive evidence---Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

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

----S. 302---Qatl-i-amd---Recovery of empties---Dispatch to Forensic Laboratory---Scope---Empties recovered from the spot were to be sent to the Forensic Laboratory without any delay, failing which such evidence does not remain free from doubt and cannot be used against the accused.

Ghulam Akbar and another v. The State 2008 SCMR 1064 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

----S. 302--- Qatl-i-amd---Recovery of empties--Corroborative evidence--Scope---Recovery of empties is a corroborative piece of evidence and where direct evidence fails, corroborative piece of evidence is of no avail.

Ghulam Akbar and another v. The State 2008 SCMR 1064 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Quality of evidence must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with the guilty one by the prosecution, otherwise, principle of justice comes into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Akram v. State 2009 SCMR 230; Muhammad Zaman v. State 2014 SCMR 749; Hashim Qasim v. The State 2017 SCMR 986 and Muhammad Mansha v. State 2018 SCMR 772 ref.

(e) Criminal trial---

----Absconsion of accused---Corroborative evidence--- Scope--- Absconsion alone cannot be a substitute for real evidence because people do abscond though falsely charged in order to save themselves from agony of protracted trial and also to avoid duress and torture at the hands of police---Absconsion is a corroborative piece of evidence and in case where direct evidence fails, corroborative piece of evidence is of no avail.

Muhammad Sadiq v. State 2017 SCMR 144; Muhammad Salim v. Muhammad Azam and another 2011 SCMR 474; Rohtas Khan v. State 2010 SCMR 566; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632 and Muhammad Arshad v. Qasim Ali 1992 SCMR 814 ref.

(f) Criminal trial---

----Motive---Scope---Where motive is alleged, the prosecution is bound to prove the same, failing which negative inference shall be taken against the prosecution.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

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

----S. 302---Qatl-i-amd---Motive---Scope---Prosecution is not bound to set up motive in every case but once it is alleged and not proved, then ocular account is required to be scrutinized with great caution.

Muhammad Sadiq v. Muhammad Sarwar 1997 SCMR 214; Noor Muhammad v. The State and another 2010 SCMR 997 and Amin Ali and another v. The State 2011 SCMR 323 ref.

Hakim Ali v. The State 1971 SCMR 432 and Amin Ullah v. The State PLD 1976 SC 629 rel.

Muhammad Khurshid Qureshi for for Appellant.

Ilyas Ahmad Damani for the State and Ghulam Hur Khan Baloch for the Complainant.

YLR 2020 PESHAWAR HIGH COURT 2538 #

2020 Y L R 2538

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

SHAHID KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal 786-P of 2016, decided on 19th September, 2019.

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

----Ss. 9(c), 13 & 29---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Transportation of narcotics, prohibition of acquisition and possession of assets derived from narcotic offences, presumption from possession of illicit articles, dispatch of samples for test or analysis---Appreciation of evidence---Accused was alleged to have been apprehended while transporting 20.100 kgs narcotic---Prosecution witnesses were consistent and coherent in their statements qua stopping the car, search of the vehicle, recovery of contraband there-from, its weighment and separation of samples from the recovered stuff, its transmission to the Forensic Laboratory for chemical analysis and safe custody of the remaining contraband in the malkhana---Prosecution had successfully discharged the burden, which was laid on its shoulder, whereafter it was for the accused to disproof the prosecution's case set up against him, as per section 29 of the Control of Narcotic Substances Act, 1997---Accused could not produce any reliable defence to show that either he was not driving the vehicle at the relevant time when it was stopped and he was arrested or that the contraband was foisted upon him by the complainant---Delay of two days in sending the samples to Forensic Laboratory was not fatal as the rules to that effect were directory and not mandatory---Judgment passed by trial court was based on proper appreciation of the evidence to which no exception could be taken---Appeal against conviction was dismissed, in circumstances.

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

----Rr. 4 & 5---Dispatch of sample for test or analysis, examination of sample---Delay in sending samples---Effect---Control of Narcotic Substances (Government Analysts) Rules, 2001 places no bar on the Investigating Officer to send samples beyond seventy-two hours of the seizure, receive the report of Forensic Laboratory after fifteen days and place the report so received before the Trial Court, as the same are directory and not mandatory and cannot control the substantive provisions of Control of Narcotic Substances Act, 1997.

----Rr. 4 & 5---Dispatch of sample for test or analysis, examination of sample---Delay in sending samples---Effect---Failure to follow Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, does not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity or make the entire case doubtful, except for the consequences provided in the Rules.

2006 YLR 340; 2006 YLR 2925; PLD 2009 SC 39; 2007 YLR 1962; 2007 YLR 1799; 2006 MLD 747; 2005 YLR 529; 2006 YLR 2925; 2006 YLR 2504; 2006 MLD 361; 2006 YLR 340; PLD 2006 Pesh. 176; 2005 PCr.LJ 254; PLD 2008 Lah. 243; 2015 PCr.LJ 30; 2013 PCr.LJ 557; 2014 MLD 837; 2015 PCr.LJ 143 and 2010 MLD 1453 ref.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Section 25 of the Control of Narcotic Substances Act, 1997 has ousted the applicability of S.103, Cr.P.C. in the cases of narcotics.

2017 SCMR 1874 ref.

(e) Interpretation of statutes---

----Rules are to be applied in such a manner that their operation does not frustrate the purpose of the Act under which they are framed.

(f) Interpretation of statutes---

----Directory provisions---Substantial compliance---Scope---Substantial compliance is sufficient in directory provisions and even where there is no compliance at all, act is not invalidated by such non-compliance if the act otherwise was done in accordance with law.

Khalid Anwar Afridi for Appellant.

Waqas Khan Chamkani, Special Prosecutor ANF for the State.

YLR 2020 PESHAWAR HIGH COURT 2591 #

2020 Y L R 2591

[Peshawar]

Before Ahmad Ali, J

MUHAMMAD ZAHID---Petitioner

Versus

Mst. NOOR UL HUDA---Respondent

Civil Revisions Nos. 841-P to 846-P of 2019, decided on 11th November, 2019.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Single jumping demand for different sale transactions---Effect---Plaintiff had filed separate suits against six vendees wherein he had pre-empted six different sale mutations---Pre-emptor had performed single jumping demand to pre-empt all the six sale transactions in the present case---Each plaint did contain the same particulars of Talb-i-Muwathibat---Plaintiff had not mentioned anything with regard to suit mutations as contended in the plaint rather word 'different' mutation had been used in the evidence---Witness of pre-emptor had not mentioned the word 'mutation' or 'different mutations' as referred in the plaint or statement of plaintiff rather he had told the name of vendee and intention of pre-emptor to sue the vendees---Evidence of pre-emptor and informer did not commensurate each other---Evidence of pre-emptor with regard to performance of Talb-i-Muwathibat and his witnesses was contradictory---Pre-emptor was required to state in evidence the exact words which he had used in the jumping demand---Right of pre-emption was a feeble right and all the details of Talb-i-Muwathibat were required to be mentioned in the plaint---Pre-emptor had failed to state in evidence a transparent account of performance of Talb-i-Muwathibat---Nothing was on record to show as to for which of the six mutations which talb-i-Muwathibat was performed---Talb-i-Muwathibat should have been performed immediately after the disclosure of information of the sale---Pre-emptor was required to announce right of pre-emption after getting knowledge of first mutation and if he had waited that all the mutations be come out of the mouth of informer then that wait would take down the performance of first talb---Plaintiff, in the present case, had performed only one jumping demand and therefore, it could be said that he had waited for the information of all the six mutations be conveyed---Talb-i-Muwathibat had not been performed immediately by the pre-emptor in circumstances---Performance of single Talb-i-Muwathibat encompassing all the sales in favour of different vendees could not be taken as sufficient---Pre-emptor was bound to perform jumping demand in a specific manner stating the person and mutation against whom he was pronouncing his intention---General expression to pre-empt a number of sales simultaneously was not sufficient to absolve the pre-emptor from the responsibility to pre-empt each and every sale in a precise manner---Pre-emptor had failed to prove that he had sent notices of Talb-i-Ishhad to the vendees through registered cover with acknowledgement-due--- Plaintiff had failed to bring on record the acknowledgement-due and postman had failed to prove the factum of delivery of notices of Talb-i-Ishhad to the vendees---Scribe of notices of Talb-i-Ishhad had not been produced in the witness box which was fatal for the pre-emptor---Pre-emptor had failed to perform Talb-i-Muwathibat and Talb-i-Ishhad in circumstances---Courts below had rightly non-suited the pre-emptor---Impugned judgments were based on proper appreciation of evidence---Revision was dismissed, in limine in circumstances.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539; Mian Pir Muhammad and another v. Faqir Muhammad through L. Rs. and others PLD 2007 SC 302; Mst. Rooh Afza v. Aurangzeb and others 2015 SCMR 92; Feroz Khan v. Mst. Malik Zaro 2016 YLR 811; Muhammad Nawaz and others v. Akram Khan 2015 MLD 1757; Allah Ditta and others v. Muhammad Anar 2013 SCMR 866 and Daim Khan and others v. Muslim Khan 2015 SCMR 222 rel.

Rehman Ullah Shah for Petitioner.

YLR 2020 PESHAWAR HIGH COURT 2609 #

2020 Y L R 2609

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

RAHAM DIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 142-B of 2015, decided on 16th March, 2020.

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

----S. 302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Accused was charged for committing murder of his daughter-in-law and her co-villager, when found them in objectionable condition---Record showed that incident occurred inside the house of accused, with the two as the sole inmates, the deceased (co-villager) and the accused---Report showed that the incident occurred in the room with its door closed initially and that it was after fire shot on the door that the deceased unchained---Report told that on initial call the door was not opened and that it was the shot on the door which led the deceased to open---Nothing on record to show that when the deceased were confirmed that the caller was armed and that there was eminent threat to their lives, then why they unlocked the door, as to keep the door shut they had better chances to survive---Blood was recovered from two places i.e. the mattress on the ground where the lady deceased fell after receiving fire shots and from the sofa lying near the door having been photographed where the deceased was shown sitting---Prosecution was to answer that as to how the deceased was hit from the back when just behind was the wall and that how his back was exposed when the lady was the first target---All the three i.e. the accused, deceased and lady deceased were two feet away from one another, if lady deceased was the first target in that eventuality the deceased had the chance to overpower or to run away, as the accused was facing the lady deceased---If the made deceased was the first target, then lady deceased could avail the same opportunity but they did not, despite the fact that by the time the accused was 67/68 years of age, what a happy surrender that was to the accused to write their fate---Accused along with his son were present at the time of arrest and recovery, but they did not charge the accused for commission of the offence---On 26.2.2014, they charged the accused when the police prevailed---Investigating Officer stated that he produced the accused before Judicial Magistrate on 24.02.2014, where he refused to confess---Nothing on record to show that what derailed the accused to disown the report on the very next day, when per prosecution version it was he, who reported---No illegality or irregularity was found in the impugned judgment of acquittal---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Accused was charged for committing murder of his daughter-in-law and her co-villager, when found them in objectionable condition---Incident was stated to have occurred at 5.45 a.m., whereas the police was informed at 10.00 a.m., who reached in 30 minutes and it was 10.30 a.m. that the matter was reported and it was scribed by official witness/ASI---Said witness stated that the Investigating Officer reached within 25/30 minutes after he (witness) reached to the spot, but the Investigating Officer stated that he went to the place of occurrence at 1.30 p.m.---Said conflict between the two led to hold that Investigating Officer never visited the spot, rather the investigation was conducted and the site plan was prepared by official witness/ASI---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Appeal against acquittal---Delay of about more than four hours in lodging the FIR---Effect---Accused was charged for committing murder of his daughter-in-law and her co-villager, when found them in objectionable condition---Record showed that the time of occurrence had been given as 5.45 a.m. whereas the matter was reported as 10.30 a.m.---Said abnormal delay in reporting the matter told nothing but of an attempt on part of the police to charge the innocent and to favour the responsible and that was the reason that statement of brother of the deceased under S.161, Cr.P.C. was recorded on 26.02.2014, showing their lack of interest to charge the accused initially---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Appeal against acquittal---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged for committing murder of his daughter-in-law and her co-villager, when found them in objectionable condition---Record showed that the rifle was recovered from personal possession of the accused while he was holding same---Record was silent as to why for long five hours the accused was holding the rifle till it was handed over---Police Official displayed dubious conduct as all the recovery memos except weapon of offence were witnessed by one Nazim---Official witness was asked as to why said Nazim was not cited as witness thereto, he stated that the private people were not ready to witness the recovery---Record transpired that the report was allegedly made by the accused and he produced the weapon of offence, then there was no threats to the people of the locality, if they were cited as witnesses, as it was a happy surrender---Non-association of private witnesses with the process of recovery of the rifle told nothing but that the weapon was later on planted to make the case a success---Forensic Science Laboratory Report reported that the empties were fired from different weapons---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Appeal against acquittal---Withholding of material evidence---Effect---Accused was charged for committing murder of his daughter-in-law and her co-villager, when found them in objectionable condition---Record showed that the persons who reached to the spot soon after the occurrence were the witnesses who could tell as to whether it was the accused who reported the matter or otherwise---Investigating Officer recorded their statements under S.161, Cr.P.C., and even their names were placed in the calendar of witnesses, but were not produced during trial---Report in question, in circumstances, lost its worth and even otherwise, non-production of those witnesses suggested that had they been produced they would not have supported the prosecution case and benefit could be sought from Art. 129(g) of the Qanun-e-Shahadat, 1984---Appeal against acquittal was dismissed, in circumstances.

Tahir Khan v. The State (2011 SCMR 646 rel.

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

----S. 417---Appeal against acquittal---Scope---Standard and principle of appreciation of evidence, in case of acquittal, is entirely different from that in a case of conviction---Unless the findings of the trial court are found perverse, fanciful, arbitrary and based on misreading and non-reading of material evidence causing miscarriage of justice, the acquittal order would not be disturbed.

Muhammad lqbal Khattak for Appellant.

Qudarat Ullah Khan Gandapur Asstt: A.G. and Shahid Naseem Khan Chamkani for Respondents.

YLR 2020 PESHAWAR HIGH COURT 2645 #

2020 Y L R 2645

[Peshawar]

Before Ahmad Ali, J

Arbab MUHAMMAD KABIR KHAN and others---Petitioners

Versus

Arbab ABDUR REHMAN and others---Respondents

Civil Revision No. 34-P of 2007, decided on 2nd December, 2019.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Inheritance---Limitation---Burden of proof---Contention of plaintiffs was that defendants were not entitled for the estate of deceased and inheritance mutation in their favour was based on fraud---Suit was dismissed concurrently---Validity---Presumption of truth was attached to the revenue record which was more than a century-old---Contention of plaintiffs was based on assumption and presumption without any proof or record---Plaintiffs had failed to prove that additional share of defendants was due to inheritance from the deceased---Plaintiffs had deprived the female descendants of deceased from their legal share in the inheritance---Plaintiffs had not come to the Court with clean hands---Relief of declaration was discretionary and not available to such persons---Predecessors of plaintiffs were aware of the distribution of estate of the deceased but they had not challenged the entries of revenue record during their lifetime---Plaintiffs had not mentioned the date of their alleged knowledge of the impugned mutation in their plaint---Plaintiffs had no locus standi to challenge the alleged entries of revenue record in circumstances---Plaintiffs had failed to prove fraud in execution of alleged documents---Present suit had been filed after forty years from the death of father of plaintiffs---Suit was time-barred in circumstances---No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Shad Muhammad through L.Rs. and others v. Mst. Sarwara 2015 MLD 582; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Ghulam Murtaza v. Abdul Salam Shah and others 2010 SCMR 1883; Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840; Muhammad Shafi and others v. Sultan 2007 SCMR 1602; Umer Baz Khan through L.Hrs v. Syed Jehanzeb and others PLD 2013 SC 268 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

(b) Maxim---

----"Allegans contraria non est audiendus"---Meaning: Contradictory statements will not be listened to.

----He who seeks equity must do equity.

(d) Maxim---

----Nemo contra factum suum venire potest---Meaning: No one can go against his own act.

Abdul Sattar Khan for Petitioners.

Asghar Khan for Respondents.

YLR 2020 PESHAWAR HIGH COURT 2683 #

2020 Y L R 2683

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

ZAHIR SHAH---Appellant

Versus

The STATE and others---Respondents

J. Cr. As. Nos. 3-B and 4-B of 2018, decided on 3rd December, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Benefit of doubt---Chance witnesses---Non-availability of justification of chance witnesses forpresence at the place of occurrence---Effect---Accused was charged for committing murder of the husband of complainant by firing while he was reciting Holy Quran in the mosque---Motive behind the incident was money dispute between the accused and deceased---Ocular account of the incident had been furnished by two wives of the deceased---Complainant stated that, she in the company of her soken (Second wife of her husband) used to take breakfast for the deceased to the mosque and they were near to reach the mosque, the accused emerged and with loud voice addressed the deceased "Haji Gul how are you"---With the said voice the deceased stood up and the accused started firing which landed on his chest with two entry wounds---Complainant while reporting the matter did not say a word regarding addressing of deceased by the accused, but during her court statement she improved and the only purpose behind was to bring her statement in line with the medical evidence, as on record the deceased was shown with his face towards west, while reciting the Holy Quran, whereas his back was exposed to the accused appellant---If that was so then the seat of injuries must have been on the back, but infact nobody witnessed the occurrence rather the witnesses were chance witnesses and the report was made after preliminary investigation---Distance between the mosque and the house of the deceased was nearly forty/fifty feet and there was hardly any occasion for the deceased to be provided with breakfast as he could easily come home for the same---Said introduction of breakfast by the complainant was afterthought with the only purpose to establish her presence on the spot---During spot inspection neither the thermos, tea cups nor pot containing parathas was produced to the Investigating Officer and so the Rahil and the Holy Quran, while preparing the site plan---Presence of said two witnesses was doubtful as both of them were pardanasheen ladies and their coming to the mosque in that part of the country did not appeal to a prudent mind---Eye-witness/second wife of deceased had stated that when the deceased fell on the ground the complainant took his head in her lap and by then blood was oozing from the wounds, but neither her hands nor her clothes were besmeared with blood---Circumstances established that the prosecution had failed to prove its case against accused/appellant beyond doubt---Appeal against conviction was allowed, in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97 and G.M. Niaz v. The State 2018 SCMR 506 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Accused was charged for committing murder of the husband of complainant by firing while he was reciting Holy Quran in the mosque---Complainant had stated that soon after the occurrence the dead body was wrapped in chadar and was placed in a coach and was taken to the hospital, where the matter was reported---Identification before the police and the doctor during post-mortem examination showed that the identifiers were the brothers of the complainant, which suggested that infact the people attracted to the spot and also brothers of the complainant, who took the dead-body to the hospital and the complainant was not accompanying the dead-body---Police Constable/witness stated that they rushed to the spot on receiving the information and escorted the dead-body from the spot to the hospital---No empty of 7.62 bore was recovered from the spot and even the Forensic Science Laboratory Report in respect of the empties so collected could not connect the appellant with commission of the offence---Appeal against conviction was allowed, in circumstances.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the husband of complainant by firing while he was reciting Holy Quran in the mosque---Motive behind the incident was alleged to be money dispute between the accused and deceased---Witness stated that the deceased had long standing civil dispute with his nephews where the accused took active part and supported the deceased and when the dispute came to an end the accused demanded Rs. 50,00,000/- from the deceased and deceased was not ready to honour the demand, hence the incident---Prosecution could not bring anything on record to justify the claim---Investigating Officer failed to collect any material and the complainant did not produce any witness to substantiate her stance---Motive alleged could not be proved---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Motive---Scope---Motive once alleged, if not established, would weigh against the prosecution.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular evidence---Contradictions---Scope---Accused was charged for committing murder of the husband of complainant by firing while he was reciting Holy Quran in the mosque---Record showed that the medical evidence was in conflict with the ocular account---If the statement of the complainant was taken to be correct, the entry wounds should have been from the back---Keeping in view the distance as per medical jurisprudence a 12 bore shotgun caused an entry wound from 12 feet as 5×8 inches, and the pellets would enter separately---Medical Officer had given the dimension 1"×1" which could not be caused from such a long distance---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Absconsion---Scope---Mere absconsion is not a conclusive proof of guilt of an accused person---Absconsion is only a suspicious circumstance against an accused that he was found guilty of the offence---Suspicions, cannot take place of proof---Value of absconion, therefore, depends on the facts of each case.

Liaqat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

Muhammad Rashid Khan Dirma Khel for Appellant.

Muhammad Farooq Khan Sokarri for Respondent.

Shahid Hameed Qureshi, Additional A.G. for the State.

YLR 2020 PESHAWAR HIGH COURT 2693 #

2020 Y L R 2693

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

WAQAS ILYAS---Petitioner

Versus

REEMA REHMAN and another---Respondents

Writ Petition No. 541-A of 2020, decided on 6th May, 2020.

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

----Ss. 5, Sched. & 21-A---Constitution of Pakistan, Arts. 199 & 24---Suit for dissolution of marriage, possession of house, recovery of dowry articles and maintenance allowance---Sealing of dowry articles in the house of defendant-husband---Expression 'any property in dispute'---Scope---Discretion, exercise of---Requirements---Plaintiff-wife moved an application for sealing her dowry articles--- Defendant-husband expressed his readiness to return dowry articles to the plaintiff---Family Court directed the bailiff to seal dowry articles lying in the house of defendant in a room of the house---Validity---Provisions of S.21-A of Family Courts Act, 1964, were discretionary and same were limited by the subsequent words 'any property in dispute'---Husband was ready to handover dowry articles lying in his house to the wife---No dispute existed over the dowry articles lying in the husband's house---Scope of discretion of Family Court under S. 21-A of Family Courts Act, 1964, had vanished, in circumstances---Family Court should have ordered the bailiff to hand over the admitted dowry articles lying in the house of husband to wife against a proper inventory of all such articles subject to final decision regarding missing article, if any---Dowry articles had been sealed in two rooms of the house of defendant and doors thereof had been closed---Family Court had illegally prevented the husband and inmates of his house to use the said rooms of their own house---Family Court had passed the order to seal the rooms of the house of defendant which were not subject matter of the family suit---Impugned order passed by the Family Court suffered from jurisdictional defect and same was declared illegal and without lawful authority and was set aside---Family Court was directed to de-seal the rooms of the house of defendant and hand over the admitted dowry articles to the wife subject to proper inventory---In case of any disagreement of the parties over the quantity or condition of such articles the same should be decided after recording of evidence of the parties at the time of final judgment---Constitutional petition was allowed, accordingly.

Khurram Ghulam Rasool v. Shazia Khurram and others PLD 2017 Lah. 689 rel.

(b) Family Courts Act (XXXV of 1964)---

----S. 21-A---Scope of S.21-A, Family Courts Act, 1964.

Under section 21-A of the Family Courts Act, 1964, a family court had not been vested with powers to issue direction for any kind of sealing rather the words "preserve" and "protect" have been used in this section. The Dictionary meaning of 'PRESERVE' are to maintain (something) in its original or existing state or to keep safe from injury, harm, or destruction. Whereas, dictionary meaning of "PROTECT" are to keep safe from harm or injury or to cover or shield from exposure, injury, damage, or destruction. It is also noteworthy that in the present case the dowry articles were sealed in two rooms of the house of husband and doors thereof had been locked. In this way the Family Court had illegally prevented the husband and inmates of his house to use the said rooms of their own house which by itself was violative of the provisions of Article 24(1) of the Constitution. In-fact Family Court had passed the order to seal the rooms of the house of husband which were not the subject matter of the family suit.

Ms. Tehsin Shehzadi for Petitioner.

Zahid Mahmood Qureshi for Respondent No.1.

Quetta High Court Balochistan

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 44 #

2020 Y L R 44

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

Haji ASHRAF and 2 others---Petitioners

Versus

KHAN MUHAMMAD and 3 others---Respondents

C. P. No. 203 of 2016, decided on 9th August, 2019.

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

----S. 22-A---Powers of Ex-officio Justice of Peace---Scope---Registration of FIR---Pendency of civil dispute---Non-mentioning of date of occurrence and names of witnesses---Opportunity of hearing to the proposed accused was not provided---Effect---Petitioners assailed order of Ex-officio Justice of Peace whereby he had directed the police to register criminal case against them---Allegation of respondent was that his brother had acquired the property of petitioner on lease; thereafter petitioner along with 20/22 armed persons entered the property, broke the locks and stole valuable items---Validity---Story of respondents was doubtful as neither any date of occurrence was mentioned in the complaint nor had the complainant mentioned the names of witnesses of the occurrence---Order of registration of FIR was passed against petitioners without affording them opportunity of hearing---Civil dispute between the parties was pending---Element of mala fide was apparent from the conduct of respondent---Constitutional petition was allowed and order passed by Ex-officio Justice of Peace was set aside.

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

----S. 22-A---Powers of Ex-officio Justice of Peace---Scope---Registration of FIR---Scope---Ex-officio Justice of Peace is not supposed to act mechanically by simply considering the version of events narrated by a party applying for registration of FIR, but instead, in order to safeguard against misuse or abuse of such process, must apply his mind and satisfy himself that, prima facie, some material is available on record to support such version.

Younas Abbas and others v. Additional Sessions Judge, Chakwal PLD 2016 SC 581 rel.

----S. 22-A---Powers of Ex-officio Justice of Peace---Scope---Registration of FIR---Opportunity of hearing to proposed accused---Scope---Ex-officio Justice of Peace must provide opportunity of hearing to proposed accused in case where there is no urgency and there are no chances of the evidence being destroyed---Ex-officio Justice of Peace is not required to provide opportunity of hearing to the proposed accused where there is some urgency and there are chances that due to delay in registration of FIR valuable evidence may be destroyed---Ex-officio Justice of Peace may, if the facts and circumstances of the case appear to be doubtful or the complaint seemed to be based on mala fide, provide opportunity of hearing to the proposed accused---Ex-officio Justice of Peace is not obliged to blindly pass an order for registration of FIR in such cases.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 rel.

Muhammad Akram Shah for Petitioners.

Ameer Hamza Mengal, D.P.G. for Respondents.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 172 #

2020 Y L R 172

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

GHULAM NABI---Appellant

Versus

Mir MUHAMMAD ALI RIND---Respondent

Civil Miscellaneous Appeal No. 18 of 2017, decided on 5th August, 2019.

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

----O. IX, R. 13 & O. V, R. 20---Setting aside of ex-parte decree---Substituted service---Failure to order for affixation of notice on the house of defendant---Effect---Non-availability of report of process-server---Effect---Appellant was aggrieved of the order of the Trial Court whereby his application for setting aside of ex-parte decree was dismissed---Respondent had filed a suit for recovery of damages which in early round of litigation was remanded by High Court to the Trial Court whereby it was registered and notices were issued to the parties for appearance---Respondent appeared before the Trial Court, whereas appellant remained absent---Trial Court directed the respondent to submit publication on 23.04.2012 but he submitted the same on 24.04.2012---Court had power to adopt procedure of substituted service only when all efforts to effect the service upon the defendant in the ordinary course were exhausted---No report of the process server was available as to whether summons were served or unserved upon the appellant---Trial Court had not ordered for affixation of the notice at the outer door of the house of appellant or at his business address nor the same was sent through courier service---Trial Court had failed to follow the procedure as provided under R. 20 of O.V, C.P.C. therefore, the publication could not be considered as effective service of notice upon the appellant---Publication was made for the date of 24.04.2012 but the appellant was not proceeded against ex-parte on the said date and the matter was adjourned by the Trial Court for 27.04.2012--Appellant was proceeded against ex-parte on 27.04.2012 without any publication for 27.04.2012, which was a grave illegality---Appeal was allowed, in circumstances.

Abdullah Jan v. Bibi Almas 2016 CLC 1465 rel.

(b) Administration of justice---

----Matters were to decided on merits and not on technicalities.

Tahir Ali Baloch for Respondent.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 256 #

2020 Y L R 256

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL WALI and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.70 of 2019, decided on 18th June, 2019.

Penal Code (XLV of 1860)---

----S. 392---Robbery---Appreciation of evidence---Benefit of doubt---Concurrent conviction, setting aside of---Delay in lodging FIR---Effect---Complainant lodged FIR against accused persons of committing robbery---First Information Report was lodged after delay of 24 hours despite the fact that distance of police station was about 13 to 14 kilometers from place of occurrence---No plausible reason was assigned by complainant which showed that no sincere effort was made by complainant's side to report matter to police with due promptitude---Statements of prosecution witnesses were contradictory to each other which created doubts in story of prosecution and benefit of doubt went to accused---Prosecution had failed to prove charge against accused persons beyond shadow of doubt---High Court, in exercise of revisional jurisdiction set aside conviction and sentence passed by two courts below and acquitted accused persons of charge---Revision was allowed in circumstances.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Qutib v. The State 2019 MLD 162; Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227 and PLD 2019 SC 488 rel.

Jameel Shah for Petitioner.

Abdul Kareem Malghani, State Counsel.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 315 #

2020 Y L R 315

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ATTAULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.96 of 2019, decided on 7th August, 2019.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Possession of narcotics---Search and arrest---Mode---Search to be made in presence of witnesses---Bail, refusal of---Prompt FIR---Non-bailable offence---Scope---Accused was alleged to have been in possession of five kilograms of narcotics which was recovered by the complainant during checking of bus---Accused had been nominated in the promptly lodged FIR and the alleged recovery of narcotics was effected from his personal possession---Application under S. 103, Cr.P.C. had been excluded by S. 25, Control of Narcotic Substances Act, 1997---Members of law enforcing agencies were competent witnesses in the eyes of law unless there existed any mala fide or malice with accused person---Accused had failed to point out any ill-will or enmity on the part of prosecution---Presence of accused at the bus stand was also not disputed---Offence under S. 9(c), Control of Narcotic Substances Act, 1997 was punishable with imprisonment for death or life, which came within the ambit of prohibition contained in S. 497(1), Cr.P.C.---Question of bail could not be considered at initial stage of the trial---Prima facie, sufficient material was available on record to connect the accused in the commission of non-bailable offence---Petition for bail, being devoid of merit, was dismissed.

2005 PCr.LJ 303 and Afzaal Ahmed v. The State 2003 SCMR 573 ref.

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

----S. 497---Bail---Scope---Question of bail cannot be considered at the initial stage of the trial.

Afzaal Ahmed v. The State 2003 SCMR 573 ref.

Jameel Agha and Imran Kakar for Applicant.

Abdullah Langove, Assistant Attorney General-II for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 332 #

2020 Y L R 332

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ALI AKBAR---Petitioner

Versus

Mst. SAMINA and another---Respondents

C. P. No. 890 of 2017, decided on 6th August, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles---Witnesses of defendant-husband had admitted that dowry articles had been brought by the plaintiff-wife---Onus of proof had shifted to defendant to establish that the purported dowry articles were not given to him---High Court observed that it was not possible for any wife/bride to keep the record/ receipts of purchased articles or prepared list of dowry articles and obtained signature from bridegroom/husband side---Husband had failed to point out any illegality or irregularity in the impugned judgment passed by the Trial Court---Constitutional petition was dismissed, in circumstances.

Muhammad Habib v. Safia Bibi 2008 SCMR 1584 rel.

Habib-ur-Rehman for Petitioner.

Zaheer Ahmed Shahwani for Respondent No.1.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 404 #

2020 Y L R 404

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

HAMAYOUN SAEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 203 of 2019, decided on 6th September, 2019.

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

----Ss. 365-B, 346 & 34---Kidnapping, abducting or inducing woman to compel for marriage, wrongful confinement in secret, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of victim---Scope---Complainant alleged that his sister aged 13/14 years went out of the house and did not come back---Complainant was, however, informed by the witness that his sister was found by him near the forest---Alleged abductee was not abducted in the presence of witnesses thus, their testimony was not helpful to the case---Alleged abductee, inter alia, stated before the court that she was coming from the house of her sister at night; that due to fear she did not come to her house and voluntarily accompanied accused to his flat, where she was subjected to zina, while his friend (co-accused) kissed her; that the flat of accused consisted of one room and it had no attached bathroom; that she remained with the accused for one month and seven days and that when she missed her mother, she left the flat of the accused and went towards her house---Alleged abductee admitted during cross-examination that accused used to lock the flat from outside and that during her retention in the flat she neither knocked the door loudly nor made any hue and cry---Investigating officer brought on record that the accused used to take the alleged abductee on the roof of the building for nature's call---Admission of the alleged abductee clearly established that she was never abducted---Building in which the alleged abductee was confined had other inhabitants and she was taken out of the flat on daily basis but even then she never tried to escape or call the inhabitants for her rescue---Unnatural conduct of the alleged abductee created serious doubts in the prosecution case---Medical evidence though established defloration and non-existence of hymen of alleged victim but did not confirm that the accused committed zina with her---Medical evidence further established that at the time of commission of offence alleged abductee had attained puberty---Report of the swab sent to the Forensic Laboratory was not collected---Prosecution had failed to establish its case beyond any shadow of doubt---Appeal was accepted, in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

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

----S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage, etc---Scope---Prosecution, in order to establish the offence of abduction punishable under S. 365-B, P.P.C. has to establish the removal of a woman by force from one place to another under compulsion or through inducement by deceitful means and the object of such removal is to compel her to marry any person against her will or in order to force or seduce her to illicit intercourse.

Zeeshan and Abdul Wahab Buledi for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 437 #

2020 Y L R 437

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

WAQAS AHMED---Appellant

Versus

ARSHAD MEHMOOD and 2 others---Respondents

Criminal Acquittal Appeal No.(s) 87 of 2019, decided on 24th June, 2019.

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

----Ss. 302, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 265-K---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, rioting, armed with deadly weapon, common object---Power of court to acquit accused at any stage---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delayed FIR---Prosecution case against accused persons was that they waylaid the complainant party when they were travelling in their vehicle and killed the brother of complainant---First Information Report was lodged with a delay of 7 hours without plausible explanation---Complainant had not explained as to why in the presence of vehicle he proceeded to police station by foot for lodging the FIR---Eye-witness had not recognized the accused persons before the Trial Court---Deceased was brought to the hospital by the police, which indicated that the complainant was not present at the spot---Witnesses were close relatives of the deceased---Prosecution had not conducted identification parade of accused persons---Empties and blood stained earth were secured from the place of occurrence after 14 days of the occurrence without any plausible reason---Trial Court had passed a reasonable order, which in the absence of misreading and non-reading of evidence did not warrant interference---Trial Court had rightly exercised jurisdiction under S. 265-K, Cr.P.C.---Appeal against acquittal was dismissed.

Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; 2017 SCMR 2002 and Muhammad Arif v. The State 2019 PCr.LJ 337 rel.

(b) Appeal against acquittal---

----Every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption attains double presumption of innocence---Strong and cogent reasons are required to dislodge such presumption.

2017 SCMR 1710 and 2017 SCMR 2007 ref.

Rahib Khan Buledi for Appellant.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 602 #

2020 Y L R 602

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MUHAMMAD RAMZAN and another---Appellants

Versus

BISMILLAH KHAN and 7 others---Respondents

R.F.A. No. 39 of 2013, decided on 16th October, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Registration Act (XVI of 1908), S. 17---Suit for specific performance of contract---Agreement to sell---Proof---Procedure---Statements of witnesses of plaintiff were silent with regard to date of sale deed and sale price---Payment of sale consideration had not been proved---Plaintiff had produced only one attesting witness of agreement to sell whereas he was to produce two marginal witnesses of sale agreement---Alleged sale agreement was not prepared in the presence of marginal witnesses---Sale agreement of more than Rs. 100/- required registration under S. 17 of Registration Act, 1908---Agreement to sell of immovable property did not create any right or interest on such property---Execution of such agreement did not ipso facto create a charge on immovable property---Execution of an agreement to sell was not a document of truth---Plaintiff had not deposited the balance sale consideration of agreement to sell---Party who had sought enforcement of agreement to sell must deposit the balance sale price before the Trial Court but no such application had been filed on behalf of plaintiff---Plaintiff was bound to prove alleged sale transaction of suit land, execution of sale agreement, paying of earnest money to the defendant---Mere tendering sale agreement in evidence did not enhance its evidentiary value---Plaintiff was bound to prove the existence of facts which had been asserted in the suit---Findings recorded by the Trial Court were based on proper appreciation of evidence---Appeal was dismissed in circumstances.

Khair Muhammad v. Nawab Bibi 2001 CLC 1001; Hamood Mehmood v. Shabana Ishaque 2017 SCMR 2022 and Pir Munawar Shah v. Habib-ur-Rehman 2018 CLC 1901 rel.

Nemo for Appellants.

Respondent No.1: Ex parte

Iqbal Ahmed Kasi for Respondents Nos. 2 to 5.

Syed Mumtat Baqri for Respondents Nos.6 to 8.

Abdul Latif Kakar, Additional Advocate General for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 644 #

2020 Y L R 644

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

NASRULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 96 of 2019, decided on 29th August, 2019.

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

----Ss.302(b), 324, 397, 337-H(2) & 34---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, rash or negligent act, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses---Test identification parade---Scope---Accused was charged for committing murder of brother of the complainant by way of firing during robbery---Admittedly, complainant was not eye-witness of the occurrence and the FIR was lodged on the night at about 9:30 p.m. against unknown accused persons---Record revealed that the Investigating Officer recorded the statement of the complainant under S. 161, Cr.P.C. on the night---Appellant/ accused was arrested on 11.1.2017 on the basis of confessional statement of co-accused under S. 164, Cr.P.C. in another case---Identification parade of the accused/appellant was conducted on 25.01.2017, in which the witness identified the accused/appellant---Prior to said identification parade accused/ appellant was produced before the Judicial Magistrate for identification parade but the Judicial Magistrate due to non production of CNIC of accused refused the request of Investigating Officer---Identification parade conducted in the police lockup could not be relied upon---Prosecution also produced two other ocular witnesses, but they in their court statements did not name the accused/appellant---Since the accused was not nominated in the FIR both the ocular witnesses were also required to participate in the identification parade---Prosecution had produced two witnesses as ocular witnesses but as per other witness, he along with deceased was proceeding towards their work place meanwhile the incident occurred---Said witness neither in his statement under S. 161, Cr.P.C., nor in his statement before court had shown the presence of the ocular witnesses at the place of occurrence---Complainant neither in his fard-e-bayan nor in his court statement narrated the presence of the ocular witnesses---One of the ocular witnesses had stated that they had brought the deceased to the hospital by motorcycle but the said witness during cross-examination had stated that the deceased was boarded into police vehicle, while the complainant during cross-examination stated that he went with the dead body in a vehicle owned by a contractor---Complainant further stated that they remained at place of occurrence till 9:00 p.m. (night) meaning thereby they remained nearly four hours at the place of occurrence but they did not take the corpse to nearby hospital---Such a conduct on the part of the complainant and the ocular witnesses who were related to the deceased did not appeal to a prudent mind when the corpse was lying in the pole of blood in front of them for about four hours---Witness of identification of accused neither mentioned the presence of ocular witnesses and complainant at the place of occurrence nor the site plan produced by the Investigation Officer confirmed the presence of the complainant despite the Investigating Officer stated that during site inspection the complainant was with them---Prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Kanwar Anwaar Ali, Special Judicial Magistrate PLD 2019 SC 488 rel.

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

----Art. 22---Test identification parade of accused before the Trial Court---Scope---Identification parade of accused person before the Trial Court during the trial was unsafe.

Haider Ali v. State 2016 SCMR 1554 rel.

----Ss. 302(b), 324, 397, 337-H(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, rash or negligent act, common intention---Appreciation of evidence---Site plan---Evidentiary value---Site plan was not a substantive piece of evidence but it carried weight, same could not be brushed aside easily.

Abdul Sattar v. State 2008 PCr.LJ 869; Mehr Ali and others v. The State 1968 SCMR 161 and Khan and another v. The State 1978 PCr.LJ 24 rel.

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

----Ss. 302(b), 324, 397, 337-H(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, rash or negligent act, common intention---Appreciation of evidence---Medical and ocular evidence---Contradiction---Scope---Accused was charged for committing murder of brother of the complainant by way of firing during robbery---Medico Legal Certificate revealed that the deceased was brought to hospital at 7:35 p.m., while the remaining witnesses did not support the version of Medical Officer---Prosecution witness had stated that they reached the hospital at 8:30 p.m., thereafter police reached, while according to other witness, he remained at the place of occurrence till 8:00 p.m. when the police reached there and had taken into possession the shirt of deceased at the spot---Said witness further replied that he reached the hospital at 8:30 p.m. but contrary to the above, the complainant during cross-examination stated that they remained at the spot from 5:30 to 9:30 p.m. and the police reached at the spot at about 8:50 p.m.---Complainant during examination stated that he gave the application to the police at hospital at about 9:30 p.m. and later on he signed the said application in the police station---Testimonies of the prosecution in respect of exact time of occurrence were lacking certainty because when the complainant remained at the spot at 9:30 p.m. with the corpse then at 7:35 p.m. who was examined by the Medico Legal Officer and whose blood-stained clothes were taken into possession by the Investigating Officer when at that time the corpse was lying at the spot---Investigating Officer visited the site along with complainant but he did not take into possession the deceased's motorcycle which was the main cause/ reason of the incident---Circumstances established that medical evidence did not support the ocular account---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

Nazir Ahmed v. State 2018 SCMR 787 rel.

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

----Ss. 302(b), 324, 397, 337-H(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, rash or negligent act, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatching recovered weapon---Effect---Accused was charged for committing murder of brother of the complainant by way of firing during robbery---Alleged weapon was recovered on the pointation of accused from an open place, which was not in exclusive possession of the appellant---Said weapon was sent to the Forensic Science Laboratory without empties after delay of thirty three days without any explanation---Forensic Science Laboratory Report revealed that the weapon was in working condition---Such a positive report could not help the prosecution because the weapon had to be sent with casing/empties for examination, so as to examine whether the said empties were fired from the said weapon or otherwise---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. [p. 653] J

Muhammad Arif v. State 2019 SCMR 631 rel.

Manzoor Ahmed Rehmani for Appellant.

Sudher Baloch, D.P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 693 #

2020 Y L R 693

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

NASRULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 97 of 2019, decided on 29th August, 2019.

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

----S. 13---Recovery of pistol without licence on pointation of accused---Appreciation of evidence---Benefit of doubt---Recovery from open place---Delay in sending recovered weapon to Forensic Science Laboratory without empties---Non-association of private witness--- Effect--- Accused, during investigation of another case, was alleged to have got recovered a pistol---Recovery of alleged weapon was effected on the pointation of accused from open place and the weapon was sent to the Forensic Science Laboratory without empties---No private witness was associated and the place of recovery was not in the exclusive possession of accused---Weapon was sent for analysis to the Forensic Science Laboratory after lapse of two months without any explanation---Prosecution was bound to explain as to under whose custody the weapon was lying during that period but the prosecution was silent---Report of Forensic Science Laboratory revealed that the weapon was in working condition---Such positive report was not helpful to the prosecution because the weapon had to be sent with casing/ empties for examination---Forensic Science Laboratory had to examine whether the recovered empties were fired from the recovered weapon or otherwise---Prosecution had not recorded the statement of any official about safe custody of the weapon, as such the conviction could not be based on shaky and unreliable evidence---Prosecution had failed to establish the guilt of the accused and the commission of offence---Appellant was acquitted of the charge, in circumstances.

Gul Sher Khan v. State 2018 MLD 1354 ref.

Muhammad Arif v. State 2019 SCMR 631 and Sajjan Solangi v. State 2019 SCMR 872 rel.

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

----Art.40---Proof of information received from accused---Scope---Recovery of weapon on the pointation of accused is admissible in evidence under Art. 40, Qanun-e-Shahadat, 1984 but said Article puts an embargo on the prosecution that recovery should be free from doubt.

Manzoor Ahmed Rehmani for Appellant.

Sudher Baloch, A.P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 731 #

2020 Y L R 731

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

DIRECTOR GENERAL, PAKISTAN COAST GUARD HEAD QUARTER, KARACHI through Deputy Attorney General---Petitioner

Versus

SIKANDAR---Respondent

Criminal Revision Petition No. (T) 14 of 2019, decided on 30th August, 2019.

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

----S. 32---Criminal Procedure Code (V of 1898), S.516-A---Superdari of vehicle---Articles connected with narcotics---Knowledge of the owner of vehicle---Scope---Prosecution assailed order of Trial Court whereby it had accepted the application of respondent for release of vehicle---Validity---Respondent had produced legal documents of the vehicle, which were verified by the Trial Court from Excise and Taxation Department---Control of Narcotic Substances Act, 1997 did not put an embargo on release of vehicle on superdari to the bona fide owner---Prosecution had to establish the knowledge of the owner of vehicle in respect of its usage for smuggling of contraband material---Control of Narcotic Substances Act, 1997 did not prohibit the release of vehicle used in trafficking of narcotics, when the owner had no nexus with the commission of the crime or the accused and he was unaware that the vehicle was being used for the crime---Revision petition was dismissed.

Allah Ditta v. State 2010 SCMR 1181 rel.

Attaullah Langove, Assistant Attorney General-III for Petitioner.

None present for Respondents.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 942 #

2020 Y L R 942

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MOR KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s) 75 of 2019, decided on 11th October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused were charged for committing murder of uncle of the complainant---Motive for the occurrence was old enmity---Complainant while appearing before the Trial Court deposed the same facts as narrated in the FIR---Eye-witness corroborated the complainant and deposed the same facts---Said witnesses stated that they were accompanying the deceased when the accused made firing---Testimonies of both the ocular witnesses remained firm on each material point and their statement corroborated each other---Defence did not deny the presence of the witnesses at the place of occurrence---Parties knew each others, therefore there was no probability of the mistake identification of the culprits---Presence of the ocular witnesses at the scene of crime was natural, which had further been corroborated by the site plan---Circumstances established that the prosecution had successfully proved its case against the accused persons through promptly lodged FIR, confidence inspiring ocular testimony, recovery of crime empties from the spot, supportive medical evidence, arrest of the accused within a short span, recovery of crime pistol followed by positive report of the firearms expert against the accused---Appeal was dismissed accordingly.

Muhammad Akram v. State 2019 SCMR 610 and Ijaz Ahmed v. State 2009 SCMR 99 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---First Information Report was lodged promptly---Effect---Accused were charged for committing murder of uncle of the complainant---Record showed that FIR was lodged promptly after one hour of the occurrence without any delay---Deliberation and consultation on the part of the complainant could not be considered, in circumstances---Appeal was dismissed accordingly.

----Witness---Interested witness---Statement of interested witness---Reliance---Scope---Mere relationship of a witness with the deceased was no ground for discarding his evidence if he otherwise appeared to be truthful and his presence at the place of occurrence was probable---Mere relationship of a witness with any of the parties would not make him as an interested witness---Interested witness was one who had, of his own, a motive to falsely implicate the accused; was swayed away by a cause against the accused and was biased, partisan, or inimical towards the accused---Any witness who had deposed against the accused on account of the occurrence by no stretch of imagination could be regarded as an interested witness---Merely because the witnesses were kith and kin, their evidence could not be rejected, if otherwise same was trustworthy.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of uncle of the complainant---Record showed that seven empties were recovered from the place of occurrence---Two TT pistols were recovered from the possession of the accused persons---Said TT pistols and empties were dispatched to the Firearms Expert---Report of Forensic Science Laboratory showed that the empties collected from the place of occurrence were fired from the TT pistols recovered from the possession of accused persons---Prosecution had successfully proved the recovery of weapon of offence---Appeal was dismissed accordingly.

Kamran Murtaza and Abdul Razaq Shar for Appellants.

Ahsan Rafiq Rana for the Complainant.

Akhtar Gajjani, Additional Prosecutor General for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 985 #

2020 Y L R 985

[Balochistan]

Before Rozi Khan Barrech, J

GHULAM NABI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 47 of 2018, decided on 15th November, 2019.

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

----Ss. 300, 315 & 302(c)---Qatl-i-amd and qatl-shibh-i-amd---Appreciation of evidence---Delay in lodging of FIR---Interested witnesses---Substitution, principle of---Complainant lodged FIR against her husband and brother-in-law for committing qatl-i-amd of their daughter---Defense could not succeed to prove any consultation, deliberation or premeditation on part of complainant to falsely charge accused in the case---Not possible in ordinary course or even not appealable to prudent mind that actual and real culprit was let off and instead an innocent person was charged---Accused, complainant and deceased were residing in the same house and complainant was a Purdah observing lady, therefore, she had not lodged report promptly---Mere delay in lodging of FIR was never sufficient to believe or disbelieve contents of FIR---Question of guilt or innocence was always required standard of evidence---Promptness or delay had their relevance as a circumstance which otherwise would not have prejudiced liabilities of either sides and that of court to examine such aspect by holding scale of justice tight---Weapon used for commission of offence had to be considered for purpose of an act with intention to cause harm to the body---Intention was primary consideration showing aim and objective of offender---Parties, in the present case, were closely related to each other and no evidence showing serious dispute or enmity was brought on record---No premeditation or anything to show that accused had intention to commit offense of qatl-i-amd---Case of accused person did not fall under S. 302(c), P.P.C. however same was covered under S. 315, P.P.C.---High Court modified judgment passed by the Trial Court and convicted accused under S.316, P.P.C.---Appeal was dismissed accordingly.

Muhammad Zubair v. State 2007 SCMR 437; Mushtaq Hussain and another v. State 2011 SCMR 45 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 ref.

(b) Criminal trial---

----Witness---Testimony of---Duty of court--- Preconditions--- Court was essentially required to satisfy itself whether eye-witnesses are natural and their presence on spot could reasonably be believed---Whether testimony is free from any kind of intrinsic improbabilities and in case of an interested witness, whether any corroboration is forthcoming---Court in a case involving capital punishment should not base conviction of an accused solely on testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances of case---When accused is tried on a capital charge, there has to be evidence of unimpeachable character which must lead to only inference that accused is found guilty beyond reasonable doubt.

----Ss. 302 & 315---Qatl shibh-i-amd---Precondition--- Qatl-shibh-i-amd takes place when victim dies with an instrument which is neither a weapon nor can be used as weapon---Nature of instrument used in occurrence is also an important factor to determine intention of accused.

Syed Ayaz Zahoor and Mrs. Robina Shaheen for Appellant.

Wajahat Khan Ghaznavi, State Counsel for P.G.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1015 #

2020 Y L R 1015

[Balochistan]

Before Jamal Khan Mandokhail, C.J. and Abdullah Baloch, J

BEHRAM---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---Respondents

Constitution Petition No. 822 of 2019, decided on 25th November, 2019.

Balochistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 16---Constitution of Pakistan, 1962, Art. 225---Vires of law---Maintenance of public order---Petitioner sought annulment of Balochistan Maintenance of Public Order Ordinance, 1960 as being ultra vires Constitution--- Validity--- If authorities were satisfied on receipt of credible information that a person was involved in anti-State activities Balochistan Maintenance of Public Order Ordinance, 1960 was to regulate arrest and detention of such culprit and in case against whom such order of arrest and detention had been passed was within such officer's jurisdiction, that officer could arrest that person without a warrant in same manner as he would have done for period not exceeding three months---Legislature had validated provisions of Balochistan Maintenance of Public Order Ordinance, 1960 under Art. 225 of Constitution of Pakistan, 1962---Petition, in the present case, was outcome of continuous arrest and detention of petitioner however, it could not be termed that Balochistan Maintenance of Public Order Ordinance, 1960 was ultra vires Constitution---For violation of fundamental rights protected under Constitution, every citizen could invoke jurisdiction of competent court of law for redressal of his grievance---Constitutional petition was dismissed in circumstances.

Habibullah Khan Nasar for Petitioner.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1048 #

2020 Y L R 1048

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar, and Abdul Hameed Baloch, JJ

SHAHZADA KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 151 of 2018 and Criminal Revision Petition No.(s) 14 of 2019, decided on 23rd October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Dishonest improvements---Inimical witness---Absence of eye-witness from the site plan---Contradiction in medical and ocular evidence---Absence of independent corroboration---Non-examination of independent witnesses---Failure of prosecution to collect Call Data Record---Investigation prior to registration of FIR---Effect---Complainant alleged that her son was murdered by the accused---Held; complainant had not directly witnessed the crime, she was informed by son of the witness in respect of making fire upon her son by the accused---Eye-witness stated that the occurrence had taken place in the main bazar when shops were open but except him, the prosecution did not record statement of any independent witness or nearby shopkeepers---Eye-witness admitted that the deceased was his close relative---Complainant stated that the deceased was murdered due to previous enmity between the parties---Statement of eye-witness, being inimical towards the accused, could not be accepted without independent corroboration and the ocular testimony was in conflict with medical evidence---Investigating officer had reached at the spot prior to registration of FIR, conducted investigation, recorded statement of the only eye-witness, prepared memo of blood-stained earth, memo of recovery of empty shell---Investigating officer had commenced the investigation prior to lodging FIR---First Information Report was corner stone of the case and any doubt arisen with regard to registration of FIR created suspicion in the case of prosecution---Investigating Officer had prepared site plan in the presence of the eye-witness but did not mention as to where the said witness was standing---Site plan was not substantive piece of evidence, yet it showed the presence of witness and it could not be lightly ignored---Complainant, in her court statement, made dishonest improvements that the accused had called the deceased, whereafter, her son went towards him---Police, on arrest of the accused, had recovered mobile and sim but had not collected the Call Data Record of the phone belonging to accused to ascertain whether the accused had called the deceased or not---Mere recovery of mobile had not substantiated the case of prosecution---Prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was accepted and the impugned judgment was set aside, in circumstances.

Muhammad Irshad v The State 1999 SCMR 1030; Iftikhar Hussain v. The State 2004 SCMR 1185; Abdul Sattar v. The State 2008 PCr.LJ 869 and Khan v. The State 1978 PCr.LJ 24 ref.

Mehr Ali v. The State 1968 SCMR 161 rel.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Delay in sending recovered articles---Sending of empties along with weapon---Effect---Investigating officer had dispatched the blood stained clothes, crime shell and pistol to Forensic Science Laboratory for analysis after a delay of more than two months without reasonable justification---Crime weapon and empty shell were sent together, therefore, the positive report had lost its evidentiary value---Appeal against conviction was accepted, in circumstances.

Asad Rehmat v. The State 2019 SCMR 1156 ref.

----S. 302(b)--- Qatl-i-amd--- Motive---Scope---Complainant had alleged the motive but no evidence was available on the record to substantiate the same---Conviction could be awarded even in the case where no motive was alleged, but once the motive was alleged the same was to be proved and on failure, its benefit would go to the accused---Appeal against conviction was accepted, in circumstances.

Mst. Mir Shahbano v Ahmed Khan 2011 YLR 1965 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Benefit of even a slightest doubt has to be extended in favour of the accused.

Hussain Shah v. The State 2017 MLD 973 ref.

(e) Criminal trial---

----Evidence---Dishonest improvement---Scope---Where a witness makes improvement in disposition, his statement cannot be taken into consideration.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Abdul Razzaq Shar for Appellant.

Jameel Akhtar, Additional Prosecutor General for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1077 #

2020 Y L R 1077

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ABDUL JABBAR and another---Applicants

Versus

SARDAR KHAN RIND and another---Respondents

Criminal Bail Cancellation Application No.85 of 2019, decided on 21st October, 2019.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Act of terrorism---Application for cancellation of bail---Implication of accused through supplementary statement---Absconsion of accused--- Further inquiry--- Scope---Complainant sought cancellation of pre-arrest bail granted to accused on the ground that the accused had been an absconder and that bail had been granted in wrong exercise of discretion by the Trial Court---Held; nothing was available on record to show that the accused was aware about his implication--Accused was not nominated in the FIR with any role but he was subsequently implicated by the complainant in supplementary statement, with improved version of the occurrence---Confirmation of ad-interim pre-arrest bail of the accused by the Trial Court in view of the scope of further inquiry could not be termed as illegal or in wrong exercise of discretion as apart from mala fide and arrest for ulterior motives such as humiliation and unjustified harassment, scope of further inquiry could also be made a basis for grant/confirmation of pre-arrest bail, primarily depending upon the facts and circumstances of each case---Allegation of abusing or misusing the concession of bail by the accused was not supported by affidavit of any witness---Application for cancellation of pre-arrest bail was dismissed.

Meeran Bux v. State PLD 1989 SC 347 rel.

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

----S. 497---Bail---Principles---Scope---Grant or refusal of bail in criminal cases primarily depends upon the facts and circumstances of the case and no hard and fast rule can be laid down in that regard.

Jamal-ud-Din's case 1985 SCMR 1949 rel.

----S. 498---Pre-arrest bail---Further inquiry---Scope---Scope of further inquiry could also be made a basis for grant/confirmation of pre-arrest bail, primarily depending upon the facts and circumstances of each case.

Meeran Bux v. State PLD 1989 SC 347 rel.

Arif Achakzai and Zafar Hassan Jamote for Applicants.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1099 #

2020 Y L R 1099

[Balochistan]

Before Abdul Hameed Baloch, J

TOOR JAN---Petitioner

versus

The STATE---Respondent

Criminal Revision No. 9 of 2018, decided on 25th November, 2019.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 161---Dishonestly issuing a cheque---Appreciation of evidence---Benefit of doubt---Delay in recording statements of witnesses by police---Effect---Complainant alleged that cheques handed over by accused in pursuance of business deal were dishonoured---Statement of Operations Manager of the Bank under S. 161, Cr.P.C. was recorded with a delay of one month, which reduced the veracity of witness to nil---Complainant had neither produced any agreement in respect of transaction nor produced any legal documents before the investigating officer or court---Statement of witness produced by prosecution revealed that no transaction had taken place in his presence---Prosecution had failed to prove the charge against the accused---Accused was acquitted of the charge, in circumstances.

Muhammad Asif v. State 2017 SCMR 486 and Nazar Muhammad v. State 2018 PCr.LJ Note 106 rel.

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

----S. 161---Examination of witnesses by police---Scope---Delay in recording statement of witness under S. 161, Cr.P.C. casts doubt on his statement.

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, P.P.C. provides that the cheque must be issued dishonestly for the fulfilment of an obligation whereas mere issuance of a cheque, which was subsequently dishonoured, does not constitute an "offence" under S.489-F, P.P.C.

(d) Criminal trial---

----Benefit of doubt---Scope---Defence is not required to create serious doubt in the case of prosecution---Slightest doubt in the prosecution case is enough to give its benefit to the accused, not as a matter of grace but as of right.

Sher Umer Khan v. Khan Put 2015 PCr.LJ 143 ref.

Nadir Ali Chalghari for Petitioner.

Abdul Latif Kakar, Addl. P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1241 #

2020 Y L R 1241

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MOHIBULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 172 and Murder Reference No. 8 of 2019, decided on 18th December, 2019.

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

----Ss. 302, 324 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism---Appreciation of evidence---Sentence, reduction in---Prompt FIR---Mitigating circumstances--- Public servant, not in official uniform---Single fireshot---Scope---Accused was alleged to have murdered one of the levies officials when he was trying to arrest the accused on account of engagement in an altercation with another group---Complainant, in the promptly lodged FIR, had nominated the accused for making firing upon the deceased---Empties had matched with the pistol which was recovered on the spot---High Court observed that the accused was responsible for the murder and had rightly been convicted, however, noticed that no evidence was available on record to prove that the incident of altercation was reported to the levies; that no member of the other group was produced; that the attack upon the deceased seemed to be without premeditation; that the deceased was not wearing his official uniform and that the accused had not repeated the fireshot---Said circumstances fell within the ambit of mitigation therefore sentence of death was altered to imprisonment for life---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; Fayyaz alias Fiazi v. The State 2017 SCMR 204 and Rehmat Khan v. The State 2017 SCMR 2034 ref.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

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

----Ss. 302, 324 & 353---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism---Public servant not in official uniform---Accused was alleged to have murdered one of the levies officials when he was trying to arrest the accused on account of engagement in an altercation with another group---Validity---Act of accused was not committed with design or purpose specified in clause (b) or (c) of subsection (1) of S.6, Anti-Terrorism Act, 1997---Such act did not fall within the ambit of "terrorism" because only the deceased was targeted who was not wearing official uniform---None of the other levies officials had received any injury and the deceased had received only one fireshot injury on his person---Conviction of accused under S.7, Anti-Terrorism Act, 1997 recorded by Trial Court was set aside and he was acquitted of the charge.

Criminal Appeals Nos. 95 and 96 of 2019 rel.

---Each criminal case has its own peculiar facts and circumstances and seldom coincides with other on salient features.

Shabbir Ahmed Rajput for Appellant.

Wali Muhammad Barrech for the Complainant.

Habibullah Gul, A.P.G. along with Abdul Mateen D.P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1311 #

2020 Y L R 1311

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL NAFEY---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.19 of 2019, decided on 11th December, 2019.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Prompt FIR---Solitary witness--Scope--- Prosecution case was that the accused was standing in front of the house of deceased and upon being excoriated he fired upon the deceased---Accused was appositely nominated in the promptly lodged FIR---Solitary eye-witness had adhered to the prosecution version word by word and had fully supported the case by giving all necessary details---Testimony of solitary eye-witness itself was not a demerit or disqualification as could call for its repudiation, when otherwise it rang true and inspired confidence---Quality and not the quantity of the evidence had to be seen---Medical evidence was in complete harmony with the ocular testimony---Complainant and eye-witness had no enmity, whatsoever, to falsely depose against the accused---Prosecution had succeeded in proving the charge---Appeal was dismissed.

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

----S. 302--- Qatl-i-amd--- Interested witness--- Corroboration---Scope---Court, in a case involving capital punishment, will not base conviction solely on the testimony of an interested witness unless his testimony finds corroboration by some other independent and unimpeachable piece of evidence or circumstances of the case.

----S.302---Qatl-i-amd---Related witness---Scope---Where the testimony of a relative is corroborated through circumstantial evidence or other pieces of evidence, then his relationship or friendship with the deceased will not suffice to discredit him particularly when there is no motive to falsely involve the accused.

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

----S.302---Qatl-i-amd---Related witness---Scope---Fact that a witness is relative of the deceased is not per se enough to discredit the witness unless it is established that the witness is inimical towards the accused and if it is found that his presence on the place of occurrence cannot be denied then his evidence cannot be rejected outrightly, merely because such witness belongs to one party or the other involved in a factional dispute, if otherwise such a witness has established his veracity.

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

----S.302---Qatl-i-amd---Motive---Scope---Motive is not a necessary component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge.

Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 ref.

Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 rel.

(f) Criminal trial---

----Witness---Eye-witness---Scope---Court has to satisfy itself whether the testimony of an eye-witness is natural, his presence on the spot can reasonably be believed, whether his testimony is free from any kind of intrinsic improbabilities and in case of an interested witness whether any corroboration is available.

Asmatullah Mandokhail for Appellant.

Abdul Mateen, Deputy Prosecutor General ("DPG) along with Wajahat Khan Ghaznavi, State Counsel for P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1423 #

2020 Y L R 1423

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MUHAMMAD YOUSAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 27 of 2019, decided on 11th December, 2019.

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

----Ss. 302(b), 324 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, hashimah---Appreciation of evidence---Solitary witness---Injured witness---Scope---Accused was alleged to have attempted at the life of complainant and murdered another---FIR though was lodged with a delay of one day but it appeared that the police had received information on the day of the occurrence and the police officials had referred the injured to hospital, therefore, delay in lodging FIR was the fault of SHO (Station House Officer of Police Station)---Complainant had no enmity with the accused to involve him falsely by taking advantage of delay---Sole injured eye-witness had adhered to the prosecution version word by word and had fully supported the prosecution case by giving all necessary details---Medical evidence had corroborated the statement of complainant---Presence of complainant on the spot was also established on the basis of injuries received by him---Prosecution had successfully established the charge against the accused---Appeal was dismissed.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----S.302---Qatl-i-amd---Related witness---Scope---Where the testimony of a relative witness is corroborated through circumstantial evidence or other pieces of evidence then his relationship or friendship with the deceased will not suffice to discredit him particularly when there is no motive to falsely involve the accused.

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

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

----S. 154---Information in cognizable cases---Delay in lodging FIR---Effect---Scope---Delay in lodging FIR is never sufficient to believe or disbelieve the contents of the FIR---Question of guilt or innocence is to be determined through required standard of evidence---Promptness or delay has its relevance as a circumstance, which does not prejudice the liabilities of either side---Court has to examine such aspect by holding the scale of justice tight.

Muhammad Zubair v. State 2007 SCMR 437 and Mushtaq Hussain and another v. State 2011 SCMR 45 rel.

(f) Criminal trial---

(g) Criminal trial---

----Witness--- Solitary eye-witness---Scope---Testimony of solitary eye-witness itself is not a demerit or disqualification as can call for its repudiation, when otherwise it rings true and inspires confidence---Quality and not the quantity of evidence has to be seen.

(h) Criminal trial---

----Witness---Injured witness---Interested witness--- Scope---Mere interest of a injured witness is no ground to reject his evidence when his presence during the occurrence cannot be doubted---Injured witness would be the last person to leave out the real culprits and implicate others falsely.

Nisar Ahmed Alizai and Ali Ahmed Lehri for Appellant.

Muhammad Ali Rakhshani for the Complainant.

Abdul Mateen, Deputy Prosecutor General ("D.P.G.") and Wajahat Khan Ghaznavi, State Counsel for P.G.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1451 #

2020 Y L R 1451

[Balocshitan]

Before Abdul Hameed Baloch, J

MUHAMMAD ALAMGIR---Applicant

Versus

BAHAUDDIN and another---Respondents

Criminal Bail Cancellation Application No. 448 of 2019, decided on 7th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 395 & 109---Dacoity and abetment---Petition for cancellation of bail--- Scope--- Petitioner sought cancellation of bail granted to accused who along with his companions was alleged to have alighted the uncle of complainant from vehicle and took it away---Held; bail granted by court of competent jurisdiction could not be recalled/cancelled until and unless exceptional grounds were established---Petitioner had failed to point out that after release on bail, the accused had misused the concession of bail---Petition for cancellation of bail was dismissed.

Muhammad Azhar v. Dilawar 2009 SCMR 1202 and Nasir Khan v. Waseel Gul 2011 SCMR 710 rel.

Yasir Hayat for Applicant.

Akhian Gul Kakar for Respondent No.1.

Abdul Karim Malghani, State Counsel.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1715 #

2020 Y L R 1715

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

AHMED SHAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 6 of 2020, decided on 3rd April, 2020.

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

----S. 103--- Recovery proceedings---Associating of witnesses---Scope---Provision of S.103, Cr.P.C. enjoins officer or other person, who wants to make search of a place, to call upon before making the search, two or more respectable inhabitants of the locality to attend and witness the search---Purpose of the same is to prevent chicaneries of police.

(b) Explosive Substances Act (XI of 1908)---

----S.5---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive substance, recovery of---Appreciation of evidence---Complainant as investigation officer---Benefit of doubt---Accused was arrested for recovery of explosive substance from him---Complainant himself was investigation officer and his investigation was biased and a mockery---Though police officer was not prohibited under law to be a complainant if he was a witness to commission of an offence and also to be an investigation officer, so long as it did not in any way prejudiced the accused person---Court was required to appraise evidence produced by prosecution as a whole and to form opinion after evaluating the same---Seizing officer excluded independent persons to act as witnesses of arrest and recovery and to choose two of his subordinates to act as attesting witnesses---Contradictions existed among statements of witnesses and investigation was by an officer who was not competent to do so---Expert report was issued by a person not notified by Provincial or Federal Government and seizing officer himself acted as investigation officer---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed in circumstances.

The State v. Bashir and others PLD 1997 SC 408 rel.

Inayat Khan Kasi for Appellant.

Yahya Baloch, Deputy Prosecutor General for Respondent.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1764 #

2020 Y L R 1764

[Balochistan]

Before Muhammad Ejaz Swati, J

FAYYAZ AHMED and 2 others---Appellants

Versus

MUHAMMAD AZAM---Respondent

F.A.O. No. 27 of 2019, decided on 6th November, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant---Oral tenancy--- Scope--- Tenants challenged the order of Rent Controller whereby they were directed to vacate the rented premises---Contention of tenants were that relationship of landlord and tenant did not exist between the parties and that the landlord had not produced any tenancy agreement or rent receipt---Validity---Ownership of the house in question was proved by landlord through production of mutation entries and utility bills---Tenants had failed to produce any title document to support their possession over the premises in question, therefore, Rent Controller was competent to determine the relationship of landlord and tenant---Landlord had specifically pleaded that written agreement was not executed due to close relationship with the tenants---Owner of the property, in absence of any evidence to the contrary, was presumed to be of the landlord and the person in possession of the premises was considered as tenant under the law---Tenancy was not necessarily required to be created by a written instrument in express terms rather it could also be oral and implied---Conduct of the tenants was sufficient to hold them contumacious defaulters of rent---Eviction of tenants by the Rent Controller was amply justified and warranted no interference by the High Court---Appeal filed by tenants was dismissed.

Ahmed Ali alias Ali Ahmed v. Nasar ud-Din and others PLD 2009 SC 453 and Makhan Bano v. Haji Abdul Ghani, PLD 1984 SC 17 rel.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 fol.

Mehmood Ali Batti for Appellants.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 1919 #

2020 Y L R 1919

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

GUL HASSAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 170 of 2019, decided on 29th October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, refusal of---Scope---Accused along with others was alleged to have murdered the brother of complainant---Accused was nominated in the promptly lodged FIR---Weapon was recovered on the pointation of accused---Medical evidence had, prima facie, supported the allegation leveled against the accused---Petition for grant of bail was dismissed, in circumstances.

Perveen Akhtar v. State 2002 SCMR 1886 rel.

Ahsan Rafiq Rana for Applicant.

Abdul Mateen, D.P.G. for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2161 #

2020 Y L R 2161

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL HADI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 332 of 2019, decided on 18th December, 2019.

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

----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Dispatch of sample for test or analysis---Mode of making searches and arrest---Search to be made in presence of witnesses---Non-association of private witnesses---Effect---Accused was alleged to have been driving a vehicle from the secret cavities of which 10 kilograms of charas was recovered---Witnesses were cross-examined at length by the defence but nothing favourable could be brought on record---Contention of accused regarding violation of S.103, Cr.P.C. by not joining private persons in recovery proceedings had no force because it was excluded by S.25 of Control of Narcotic Substances Act, 1997---No proof of enmity between the complainant and prosecution witnesses was brought on record, in the absence whereof they were competent witnesses---No delay in sending the samples to the Chemical Examiner as the same were delivered within 72 hours---Chemical Examiner after conducting chemical test with complete protocols found the samples to be charas---High Court observed that since only 10 kilograms of charas was recovered, therefore, case did not fall within the ambit of proviso to S.9(c) of Control of Narcotic Substances Act, 1997---Conviction of accused under section 9(c) was maintained but his sentence was reduced---Appeal was dismissed.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9---Possession of narcotics---Appreciation of evidence---Liability of driver---Scope---Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

Kashif Amir v. State PLD 2010 SC 1052 rel.

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Appreciation of evidence---Search to be made in presence of witnesses---Scope---Reluctance of the general public to become witness in cases relating to narcotics is a judicially recognized fact and there is no option but to consider the statement of official witnesses, as no legal bar has been imposed in such regard.

Muhammad Dawood and Khalil Ahmed Panezai for Appellant.

Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2210 #

2020 Y L R 2210

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

ASADULLAH alias SADO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 199 and Murder Reference No. 10 of 2019, decided on 26th December, 2019.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing mutalahima---Appreciation of evidence---Ocular account corroborated by medical evidence---Sentence, modification of---Accused was charged for committing murder of father, uncle and two cousins of complainant and injuring a labourer by firing---Motive behind the occurrence was previous enmity---Ocular account of the incident had been furnished by four witnesses including complainant---Record showed that complainant narrated the facts by assigning vital role of making fires to the accused as principal accused and background of the incident with clarity of watching each other closely---Eye-witness was attracted by gun shots and witnessed the incident himself---Said witness also attributed main role of making fires to the appellant and his identification on the spot and contributed the words of complainant with respect to previous enmity---Other eye-witness also supported the version of complainant and eye-witness---Another eye-witness also supported the witnesses in respect of incident with its details, venue of occurrence murders of the deceased persons and injuries to the injured person and more importantly role of making fires by the appellant as principal accused---Admittedly, injured was not produced by the prosecution with the statement that he had expired, in support thereof no death certificate had been produced---No adverse inference could be drawn that the evidence of the injured eye-witness was withheld by the prosecution because of the fact that in a set-up where deceased persons were living there was no concept of obtaining death certificate---Evidence of injured witness was not withheld by the prosecution deliberately---Official witnesses including Investigating Officer also supported the case of prosecution in letter and spirit---Eye-witness account furnished by the witnesses was creditworthy, confidence inspiring and unimpeachable---Confidence inspiring ocular testimony furnished by unbiased and independent witnesses was corroborated by medical evidence---Circumstances established that the prosecution had been able to establish its case against the accused beyond any doubt---Injured witness having not come forward to make statement regarding his injuries, thus, accused could not be convicted for causing injures to the said injured person, therefore, conviction under Ss. 324 & 337-F(iii), P.P.C. and sentence thereunder recorded against the accused was set-aside; with the said modification and rectification, appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Principle---Prosecution must stand on its own legs and prove the case against the accused beyond reasonable doubt, that the judicial mind must be satisfied that accused had committed the offence---Quality and not the quantity of evidence determined the culpability of the accused---Accused could not be held guilty on the strength of weak piece of evidence---Conjectures, probabilities or presumptions could not form basis for holding the accused guilty---Accused would be entitled to the benefit of every reasonable doubt.

----Motive---Scope---Motive was not always material and its weakness would not damage the credibility of the prosecution case, if direct ocular evidence was sufficiently available to prove the guilt of the accused person.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing mutalahima---Appreciation of evidence---Statement of close relative of deceased--- Reliance--- Scope--- Accused was charged for committing murder of father, uncle and two cousins of complainant and injuring a labourer by firing---Admittedly, eye-witnesses were close relative of the deceased but their presence on the spot was natural---Evidence of such eye-witnesses could not be brushed aside only on the basis of their being relatives of the deceased.

2017 SCMR 662 rel.

Muhammad Shabbir Rajput for Appellant.

Yahya Baloch, Additional Prosecutor General for the State.

Rehmatullah Barech for the Complainant.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2232 #

2020 Y L R 2232

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

FAZAL UR REHMAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs and 2 others---Respondents

Constitutional Petition No.1143 of 2019, decided on 19th December, 2019.

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

----S. 11-EE & Fourth Sched.---Constitution of Pakistan, Art. 4---Proscription of person---Right of individuals to be dealt with in accordance with law---Scope---Petitioner sought exclusion of his name from the fourth schedule of Anti-Terrorism Act, 1997---Validity---Authorities had placed the name of petitioner in the Fourth Sched. of Anti-Terrorism Act, 1997 without any cogent reason and evidence---Report submitted by the SHO concerned had clearly stated that the petitioner was neither involved in any anti-state activities nor was he a memeber of any proscribed organization--- Mere involvement in criminal cases was no ground to curtail the liberty of a citizen, which was guaranteed by Art. 4 of the Constitution---Inclusion of the name of petitioner in Fourth Sched. of Anti-Terrorism Act, 1997 for indefinite period was not only against the law but flagrant violation of inalienable rights of citizen to enjoy protection of law or to be treated in accordance with law---Constitutional petition was allowed and the authorities were directed to remove the name of petitioner from the Fourth Sched. of Anti-Terrorism Act, 1997.

Muhammad Yousaf Farooqi v. Government of Punjab 2012 PCr.LJ 905 rel.

(b) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt with in accordance with law---Scope---Article 4 of the Constitution guarantees the right of liberty---Any action by the Authority, contrary to the guarantee provided in Art. 4 of the Constitution, is illegal and void ab-initio---State functionaries are not allowed to deprive a citizen of his right without due process of law.

Muhammad Jameel Das (W. Gopal Das) v. The Pakistan through Secretary Ministry of Communication Government of Pakistan 1999 CLC 541 rel.

Wali Muhammad Barrech for Petitioner.

Abdul Latif Kakar, Additional Advocate General along with Atta-ur-Rehman, S.I./S.H.O. for Respondents.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2336 #

2020 Y L R 2336

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ASMATULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 12 of 2019 and Murder Reference No. 10 of 2018, decided on 23rd December, 2019.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the brother of the complainant---Motive behind the occurrence was altercation between complainant's brothers and father of accused prior to the occurrence---Prosecution produced four witnesses including complainant but they were not eye-witnesses of the occurrence---Said witnesses did not state a single word that they had seen the accused at the time of incident near the place of occurrence---Ocular account of the alleged incident had been furnished by the injured eye-witness---Record transpired that the incomplete challan of the case was submitted before Judicial Magistrate on 09.07.2015 and the accused was shown absconder in the challan---Statement of injured was recorded under S.512, Cr.P.C.---After arrest of the acquitted co-accused, supplementary challan was submitted---During fresh trial, the statements of witnesses were recorded except the injured, whose statement was previously recorded who was not produced before the court as he had succumbed to the injuries after road accident---Trial Court on receiving the death report straightforwardly accepted and considered the earlier statement of said injured witness without bringing the same on record and passed a judgment of conviction on the basis of statement of the said injured witness, which was previously recorded under S.512, Cr.P.C.---Prime evidence had not been produced before the court in the shape of injured witness while the co-acquitted accused was facing trial before the Trial Court---Supplementary challan was submitted against the acquitted co-accused when he was in custody, the injured witness had met his unnatural death after road accident---Previous statement of the injured recorded under S.512, Cr.P.C. was recorded in absence of the appellant---Said injured witness was not cross-examined by the appellant therefore, the same could not be used against him---Statement of said injured witness would hardly be of any help to the prosecution case---Prosecution in the present case had also failed to bring on record any supportive or corroborative piece of evidence to prove the guilt of accused---No recovery of weapon of offence was effected---No motive was brought against the accused---Circumstances established that the prosecution had failed to establish its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Saddique v. The State 2018 SCMR 71; 2013 MLD 810; 2017 MLD 973 and 2017 MLD 883 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Related and interested witnesses---Scope---Accused was charged for committing murder of the brother of the complainant---Record showed that the prosecution produced four witnesses in support of its case but all the said witnesses were closely related to the deceased---Evidence of said witnesses would have to be appreciated with care and caution---Evidence of the related witnesses could not be discarded on the ground of their being related to the victim but if their testimony got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter could not be expected from a prudent persons their evidence could be easily discarded---Circumstances established that the prosecution had failed to establish its case against the accused---Appeal against conviction was allowed, in circumstances.

----Absconsion---Scope---Absconsion was not a substantive piece of evidence but was a corroborative evidence---Where direct evidence failed, corroborative piece of evidence was of no avail. [p. 2344] I

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel.

Karam Khan Bazai, Zafar Hayat Mullazai, Aminullah Kakar and Nadir Langove for Appellant (in Criminal Appeal No.12 of 2019).

Jameel Babai and Muhammad Ayub Tareen for the Complainant (in Criminal Appeal No.12 of 2019).

Abdul Mateen, Deputy Prosecutor General ("DPG") for the State (in Criminal Appeal No.12 of 2019 and Murder Reference No.10 of 2018).

Karam Khan Bazai, Zafar Hayat Mullazai, Aminullah Kakar and Nadir Langove for accused (in Murder Reference No. 10 of 2018).

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2382 #

2020 Y L R 2382

[Balochistan]

Before Nazeer Ahmed Langove, J

ABDUL ELLAH RAHMANI and 4 others---Appellants

Versus

MUHAMMAD KHAN and another---Respondents

F.A.O. No.25 of 2016, decided on 29th June, 2018.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Default in payment of rent---Sale agreement in favour of tenant---Effect---Denial of relationship of landlord and tenant by the tenant---Tenants contended that they had a sale agreement in their favour of demised premises---Ejectment petition was dismissed concurrently---Validity---Demised premises stood in the ownership of landlord---Relationship of landlord and tenant existed between the parties, in circumstances---No sale agreement had been produced before the Rent Controller---Tenants were occupying the demised premises as tenants and had committed default in payment of rent---Tenancy might be oral---Where tenant had denied the title of landlord and it was established that he was a tenant then he would forfeit his tenancy for having become a trespasser and liable to be ejected forthwith---Tenants had to stand on their own feet and required to discharge onus of proof placed on them---Tenants had denied relationship of landlord and tenant and they were bound to prove their title or locus standi for retaining the premises in question---Tenants had failed to prove their ownership with regard to demised premises through oral or documentary evidence---Agreement to sell did not create any right affecting relationship between the parties as landlord and tenant---Tenant must vacate the premises first and then claim on the basis of agreement to sell---Petitioners had succeeded to make out a case for eviction against the tenants and were entitled for vacant possession of demised premises---Impugned orders passed by the Courts below were set aside and eviction petition was accepted, in circumstances---Respondents were directed to hand over vacant possession of demised premises to the petitioners within a period of two months---Tenants were directed to pay rent of demised premises for the last three years to the landlords---Appeal was allowed, in circumstances.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 and Mst. Azeemun Nisa v. Ali Muhammad PLD 1990 SC 382 rel.

Muhammad Riaz Ahmed for Appellants.

Mian Badar Munir for Respondents.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2498 #

2020 Y L R 2498

[Balochistan]

Before Nazeer Ahmed Langove, J

MUHAMMAD HASHIM and others---Petitioners

Versus

Syed KALIMULLAH and others---Respondents

Civil Revision No. 304 of 2018, decided on 31st July, 2019.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 17---Eviction petition---Execution petition---Objection petition---Eviction petition was allowed against which an appeal was filed but same was dismissed---Execution petition was filed wherein tenant moved objection petition on the ground of limitation but same was dismissed---Validity---Mere filing of appeal or revision before higher forum did not automatically operate as a stay of the order---No stay order against eviction of tenant from the higher forum had been passed in the case---Execution petition should have been filed within three years from passing of the order---Execution petition had been filed after more than nine years---Findings recorded by the Courts below were devoid of merits and without application of judicial mind which were not sustainable under the law---Impugned orders passed by the Courts below were set aside and execution petition was dismissed---Revision was allowed in circumstances.

Bakhtiar Ahmed and others v. Mst. Shamim Akhtar and others 2013 SCMR 5 rel.

(b) Administration of justice---

----Ignorance of law was no excuse.

Abdul Zahir Kakar for Petitioners.

Rasool Bakhsh Baloch for Respondents.

YLR 2020 QUETTA HIGH COURT BALOCHISTAN 2514 #

2020 Y L R 2514

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MIR HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 84 and Criminal Revision No. 8 of 2019, decided on 28th April, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification available for presence of witnesses at the place of occurrence---Un-natural conduct of eye-witnesses---Effect---Accused was charged that he along with co-accused committed murder of cousin of the complainant by firing---Ocular account of the incident had been furnished by three witnesses including complainant---Medical Officer stated that the injured was brought by the general public---Said witness further confirmed during cross-examination that the deceased was accompanied by twenty persons when he was brought to the hospital---Neither the name of complainant and other eye-witnesses was mentioned in the medical certificate nor Medical Officer stated a single word in his statement that the injured was brought by the complainant or eye-witnesses themselves---High Court observed that if it was presumed that the complainant and eye-witnesses were accompanying the deceased when he was brought to hospital then why the Police Officials did not record/register the complainant's report at the hospital promptly but despite that the complainant went to the police station at 1:00 in that two hours after the alleged occurrence---Said aspect of the matter created serious doubt in the prosecution story as to why the report was not lodged promptly---If the eye-witnesses were present at the spot at the time of occurrence, they would have taken the deceased either to hospital or to the police station, which admittedly was not done---Presence of said witnesses on the spot was unnatural because had they been present on the spot they would have received some injuries by the shots fired by the accused and absconding accused---Said fact showed that witnesses tried to suppress their interestedness---All the eye-witnesses stated that they were present at a distance of four to five feet to each other at the time of occurrence---Eye-witnesses stated that the accused persons fired repeated shots (burst firing)---If indiscriminate firing was made by two persons upon six persons from a short distance and the witnesses were standing at a distance of four to five feet each other but none of them received injuries and only one person i.e. the deceased received only one firearm injury---If the statement of the eye-witnesses was believed to be true then the question arose as to why and how the accused spared said witnesses and did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy coupled with the fact that they could depose against him as witnesses being uncle and cousin of the deceased---Mode and manner of the occurrence advanced by the prosecution witnesses was not appealable to a prudent mind---Accused had no motive to fire at the deceased, so it might be inferred that the incident did not take place in the way and manner as it was alleged---Said facts and circumstances when evaluated on the judicial parlance reflected that the prosecution had failed to establish the culpability of the accused in the instant case through reliable, trustworthy and confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Evidence of the related witnesses could not be discarded on the ground of its being related to the victim---If it was found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which could not be expected from a prudent person, then under such circumstances, the evidence furnished by related witnesses could be easily discarded.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about one hour and fifty minutes in lodging the FIR---Scope---Accused was charged that he along with co-accused committed murder of cousin of the complainant by firing---Record showed that the occurrence took place at 11:10 a.m. and on the same day at 1:00 p.m. the FIR was lodged---First Information Report disclosed that the place of occurrence was at a distance of six kilometres from the police station---Delay of two hours in lodging the FIR---Medical evidence showed that deceased was examined by Medical Officer at 11:10 a.m.---Complainant stated in his statement that he himself went to the police station and submitted application for registration of the FIR and the said application was written by one person from the city---Complainant further stated during cross-examination that police came to the spot at 2:00 p.m.---First Information Report was lodged with delay after deliberation and consultation for the reason that the prosecution waited for the medical reports and after obtaining of same the prosecution witnesses attributed individual role to each accused---Deceased received injuries and as per medical certificate within five minutes he succumbed to the injuries i.e. at 11:15 a.m., then what prevented the complainant to lodge the report, despite the fact that the distance of police station from the place of occurrence was mentioned as six kilometres---Said delay was fatal to the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----S. 154---Delay in lodging the FIR---Effect---Delay in lodging the report could not be simply brushed aside, as it assumed great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons to whom ultimately the prosecution might wish to nominate.

Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438; Muhammad Rafique v. The State 2014 SCMR 1698 and Altaf Hussain v. The State 2019 SCMR 274 rel.

(e) 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---Benefit of doubt---Delay in recording the statement of witness by police---Scope---Accused was charged that he and co-accused committed murder of cousin of the complainant by firing---Record showed that the statement of eye-witness was recorded under S.161, Cr.P.C. with delay of two days, which was confirmed by Investigating Officer---No plausible explanation had been furnished for said delay, which reduced its value---Appeal against conviction was allowed, in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553 and Sahib Gul v. Ziarat Gul and others 1976 SCMR 236 rel.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Withholding mareial evidence---Effect---Accused was charged that he along with co-accused committed murder of cousin of the complainant by firing---According to the eye-witnesses, at time of occurrence, one person who was the pickup driver, was also present at the time of occurrence, who took the injured to the hospital in his vehicle---Said driver was neither produced before the trial court nor his statement was recorded under S.161, Cr.P.C. by the Investigating Officer---Investigating Officer also did not record the statements of twenty persons from the general public who were accompanying the deceased at the time when he was brought to the hospital---No impartial evidence could have come from the neighbourhood to corroborate the prosecution case, which, of course, could have been available due to gunshots---Such being the case, the indication and production of only interested and inter-related persons and non-production of driver of pickup and other person who took the injured to the hospital as witnesses before the court further made the prosecution case doubtful under Art. 129(g) of Qanun-e-Shahadat, 1984---Appeal against conviction was allowed, in circumstances.

Pathan v. The State 2015 SCMR 315 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Examination of the accused---Scope---Accused was charged that he along with co-accused committed murder of cousin of the complainant by firing----Record showed that while the accused was examined under S.342, Cr.P.C., the Trial Court did not put the question to the accused about his abscondance, therefore that piece of evidence could not be used against him---As substantive piece of evidence, which was in the shape of ocular account, had been disbelieved therefore, no conviction could be based on absconsion alone---Appeal against conviction was allowed, in circumstances.

Manzoor Ahmed Rehmani (absent) for Appellant.

Abdul Musawir for the Complainant.

Abdul Karim Malghani, State Counsel.

Supreme Court

YLR 2020 SUPREME COURT 451 #

2020 Y L R 451

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

Civil Appeal No 46 of 2018

MUZAFFAR ALI ZAFFAR and 5 others---Appellants

Versus

The COLLECTOR LAND ACQUISITION, MIRPUR and 16 others---Respondents

Civil Appeals Nos. 46, 47, 57 and 58 of 2018, decided on 22nd November, 2018.

(On appeal from the judgment of the High Court dated 15.1.2018 in Civil Appeals Nos. 73 and 74 of 2011).

Judgment---

----Judicial order must be speaking one and must show that Judge or a Tribunal had applied its mind to all the points involved in the case and had decided the case after attending the arguments pro and contra---Judgment was to be based on evidence/material available on the record and the reasons in support of the judgment---Order of court was to conform with the provisions of law i.e. contain concise statement of the case, the points for determination which had been raised or had arisen in the case, decision thereon and the reasons for such decision.

PLD 1993 SC (AJ&K) 24; 2000 SCMR 1574; 2005 CLC 2492; PLD 1990 SC 1; 2013 SCR 52; 2013 YLR 969; 2009 CLC 741; 2016 SCR 1546(sic); PLD 2012 SC (AJ&K) 46; 1988 SCMR 1016 and 2014 SCR 382 ref.

Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 and Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another PLD 1987 SC (AJ&K) 1 rel.

Muzaffar Ali Zaffar and Sardar Muhammad Azam Khan, Advocates for Appellants (in Civil Appeals Nos. 46 and 47 of 2018).

Muhammad Siddique Chaudhry and Javed Najam-us-Saqib, Advocates for Respondents (in Civil Appeals Nos. 46 and 47 of 2018).

Muhammad Siddique Chaudhry and Javed Najam-us-Saqib, Advocates for Appellants (in Civil Appeals Nos. 57 and 58 of 2018).

Muzaffar Ali Zaffar and Sardar Muhammad Azam Khan, Advocates for Respondents (in Civil Appeals Nos. 57 and 58 of 2018).

Supreme Court Azad Kashmir

YLR 2020 SUPREME COURT AZAD KASHMIR 222 #

2020 Y L R 222

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C J Ghulam Mustafa Mughal, J

TALIB HUSSAIN---Appellant

Versus

AURANGZEB

and 17 others---Respondents

Civil Appeal No.150 of 2018, decided on 22nd November, 2018.

(On appeal from the judgment of the High Court dated 2.7.2018 in Civil Appeal No.147 of 2012).

Civil Procedure Code (V of 1908)--

----O.XLI, R.23---Remand of case---Requirements---High Court remanded the matter to the Trial Court for reconsideration of documentary evidence--Validity---Documentary evidence available on record had already been considered by the Trial Court as well as Appellate Court---High Court had ample powers to consider the evidence and decide the case itself---Case could be remanded only when fresh evidence was required to be recorded---Where Court had already considered documentary as well as oral evidence, case was not to be remanded---Unnecessary remand of case defeated the right of speedy justice---Remand order passed by the High Court was set aside and matter was remanded to the High Court with the direction to decide the case itself on the basis of available evidence---Appeal was allowed, accordingly.

Abdul Rashid v. D.E.O. and another 1998 PLC (C.S.) 304 and Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434 rel.

Fiaz Haider Nawabi, Advocate for Appellant.

Nadeem Khan and Raja Khalid Mehmood Khan, Advocates for the Respondents.

YLR 2020 SUPREME COURT AZAD KASHMIR 266 #

2020 Y L R 266

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C JRaja Saeed Akram Khan, J

Civil Appeal No. 246 of 2018

Raja UMAR HAYAT KHAN and others---Appellants

Versus

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

Civil Appeals Nos. 246 and 247 of 2018, decided on 6th February, 2019.

(On appeal from the judgment and decree of the High Court dated 30.04.2018 in Civil Appeals Nos. 1 and 21 of 2015).

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 3,00,000/- per kanal to Rs. 4,00,000/- per kanal---Validity---Referee Judge while enhancing the compensation had discussed all the material available on record---Mere tendering of sale-deeds in evidence was not sufficient until and unless landowner had not proved that acquired land was location-wise similar and its nature, kind or potential value was same as that of the land sold through produced sale-deeds---Landowner, in the present case, had not substantiated that the acquired land and the land sold through sale-deeds tendered in evidence was having same location and nature---Compensation could not be enhanced on the basis of such sale-deeds, in circumstances---Referee Judge had properly appreciated the record and had not committed any illegality---Appeal was dismissed, in circumstances.

Muhammad Noorullah Qureshi, Advocate for Appellants (in Civil Appeal No.246 of 2018).

Sardar Karam Dad Khan, Advocate-General for Respondents (in Civil Appeal No.246 of 2018).

Sardar Karam Dad Khan, Advocate-General for Appellants (in Civil Appeal No.247 of 2018).

Muhammad Noorullah Qureshi, Advocate for Respondents (in Civil Appeal No.247 of 2018).

YLR 2020 SUPREME COURT AZAD KASHMIR 598 #

2020 Y L R 598

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

Criminal Appeal No. 41 of 2018

MUHAMMAD SHABBIR and 2 others---Appellants

Versus

TARIQ HAYAT and another---Respondents

Civil Appeals Nos. 41 and 56 of 2018, decided on 26th February, 2019.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court, dated 30.10.2018 in Criminal Appeals Nos.19 and 25 of 2018).

Penal Code (XLV of 1860)---

----Ss. 454 & 34---Lurking house tress-pass or house breaking in order to commit offence punishable with imprisonment, common intention---Appreciation of evidence---Allegation against accused was that he along with co-accused had stolen currency from the shop of complainant---Record showed that the occurrence took place at the time of Jumma prayer---Shops, offices and businesses normally remained closed at the time of Jumma prayer---Said fact went against the convict-appellants, as it could safely be believed that the convicts had chosen the time when all the people of the bazaar were busy in offering Jumma prayer and that was the golden time to commit the offence---Recovery of Rs.68,55,000/-, from the convict-respondents was effected---Such a huge amount could not be planted---Even otherwise no ill-will or malice had been brought on the record against the complainant to falsely implicate the convicts-respondents---Presence of the independent witnesses was not possible at the relevant time, as the recovery was made, during the midnight---Trial Court, after evaluating the evidence brought on the record, had rightly come to the conclusion that the convict-appellants were liable to be punished---Findings of the Trial Court had rightly been upheld by the two courts below and no serious dent in the prosecution story was found---Complainant-appellant had failed to point out any misreading or non-reading of the evidence on the part of courts below and the reasons recorded by the courts below for recording lesser sentence of the respondents had not been found to be arbitrary---No legitimate reason to enhance the sentence awarded to the convicts-appellants was available---Trial Court had given very sound, cogent and plausible reasons while awarding the sentence of ta'zir, which was not open to exception on any legal and factual premises---Interference was declined by the Supreme Court, in circumstances---Appeals were dismissed accordingly.

Syed Sharafat Hussain, Advocate for the Complainant.

Mehmood Hussain Chaudhary, Additional Advocate-Geneal for the State.

Abdul Aziz Ratalvi and Sardar Hamid Raza, Advocates for Convicts.

YLR 2020 SUPREME COURT AZAD KASHMIR 616 #

2020 Y L R 616

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal, J

Ch. FAKHAR-U-ZAMAN and another---Appellants

Versus

HASSAN ALI and 3 others---Respondents

Civil Appeal No. 149 of 2018, decided on 8th April, 2019.

(On appeal from the judgment of the High Court dated 15.05.2018 in Writ Petition No. 329 of 2017).

Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S. 14--- Ejectment petition---Enhancement of rent---Landlord, during pendency of eviction petition, moved application for enhancement of rent which was accepted and tenant was directed to deposit tentative rent---Validity---Relationship of landlord and tenant existed between the parties---Matter with regard to ejectment of tenant was subjudice before the Rent Controller---Appeal had been filed against interim order passed by the Rent Controller---Amount deposited under impugned order was subject to adjustment at the time of final disposal of the matter between the parties---Impugned order was neither a final order nor matter had been finally disposed of---Rent Controller had discretionary power to hold inquiry and he was not bound to follow the procedure stipulated in Civil Procedure Code, 1908---Rent Controller had not violated any law---Appeal was dismissed, in circumstances.

Sheikh Khalid Mehmood v. Mallick Muhammad Irfan PLD 1983 SC (AJ&K) 204 rel.

Taimoor Ali Khan, Advocate for Appellants.

Miss Ghazala Haider Lodhi, Advocate for Respondents.

YLR 2020 SUPREME COURT AZAD KASHMIR 661 #

2020 Y L R 661

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal, J

Syed HAJI SHAH and 2 others---Appellants

Versus

IRSHAD AHMED KHAN and another---Respondents

Civil Appeal No. 275 of 2018, decided on 8th April, 2019.

(On appeal from the judgment of the High Court dated 24.4.2018 in Civil Appeal No.247 of 2005).

Civil Procedure Code (V of 1908)--

----S. 12(2)---Pakistan Administration of Evacuee Property Act (XII of 1957), S. 41---Fraud and misrepresentation---Compromise decree---Evacuee property---Bar on jurisdiction of civil Court---Scope---Plaintiffs challenged compromise decree being based on fraud and misrepresentation---Suit was dismissed concurrently---Validity---Jurisdiction of civil Court would be ousted only when declaration was sought against the Custodian of Evacuee Property, however, when the dispute was of civil nature between the parties then jurisdiction of civil Court could not be claimed to have been ousted---Compromise decree had been passed on the statement of plaintiffs---Plaintiffs could not take an inconsistent position by saying that fraud had been committed---General allegation of fraud could not be accepted until the details and manner of commission of fraud was proved by the party---Appeal was dismissed, in circumstances.

2006 SCR 92; and 2006 SCR 183; 1999 YLR 2473; 2014 CLC 1718; 2003 YLR 683; 2016 SCR 146; 2011 SCR 114; 2011 SCR 214; 1998 SCR 204; 1999 SCR 494; 2015 YLR 1923; 2003 SCR 142; Adalat Khan's case 1995 SCR 151 and 2004 SCR 510 ref.

Hassan Muhammad v. Muhammad Din 1999 MLD 373 rel.

Sardar Pervaiz Akhtar, Advocate for Appellants.

Syed Shahid Bahar and Amjad Hameed Siddique, Advocates for Respondents.

YLR 2020 SUPREME COURT AZAD KASHMIR 938 #

2020 Y L R 938

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

IRSHAD AHMED---Petitioner

Versus

The STATE through Police Station City, Muzaffarabad and 2 others---Respondents

Criminal Revision Petition No.8 and Criminal Miscellaneous Petition No. 48 of 2019, decided on 27th September, 2019.

(On revision from the judgment of the Shariat Appellate Bench of the High Court, dated 12.7.2019 in Criminal Revision No.123 of 2019).

Criminal Procedure Code (V of 1898)---

----S. 539-B---Penal Code (XLV of 1860), Ss. 302(b), 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, possessing unlicensed weapon--- Appreciation of evidence--- Local inspection--- Scope---Accused-petitioner moved application under S. 539-B, Cr.P.C, before the Trial Court, for local inspection of the place of occurrence, which was turned down---Said order was assailed before the Shariat Appellate Bench of the High Court by filing a revision petition, which had also been dismissed---Validity---Plain reading of the provision of S.539-B, Cr.P.C. left no ambiguity that the local inspection was the sole discretion of the court and the same could be permitted only for the purpose of proper appreciation of evidence in the case, which could be helpful to explain any point in the evidence---Findings recorded by the trial court appeared to be well-reasoned---Record showed that occurrence took place in the year 2000, therefore, the court had rightly observed that many changes would have taken place on the spot with the passage of time---Most relevant evidence was of the witnesses, who were present on the spot at the relevant time and their statements were part of the record---Same had been duly appreciated up to the Supreme Court---Veracity of evidence had already been tested regarding the features of locality, therefore, the reasoning assigned by the Trial Court for not making order for the local inspection appeared to be genuine and lawful---Finding no force in the revision petition, the same was dismissed accordingly.

State through the Advocate-General of Baluchistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28; Mir Zakam and another v. The State and another 1999 PCr.LJ 927; Mukhtar Ali and 3 others v. The State 2000 PCr.LJ 372 and Asfandyar and another v. Kamran and another 2016 SCMR 2084 ref.

Syed Hazoor Imam Kazmi, Advocate for Petitioner.

Raja Ayaz Ahmed, Assistant Advocate-General for the State.

Ch. Shaukat Aziz, Advocate for the Complainant.

YLR 2020 SUPREME COURT AZAD KASHMIR 1065 #

2020 Y L R 1065

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD FAREED---Petitioner

Versus

The STATE through Advocate-General, AJ&K and another---Respondents

Criminal Revision Petition No.9 and Criminal Miscellaneous Petition No.49 of 2019, decided on 22nd October, 2019.

(On revision from the judgment and order of the Shariat Appellate Bench of the High Court, dated 21.6.2019 in Criminal Revision No.134 of 2019).

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

----S. 497--- Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985), Ss. 10 & 19---Bail, grant of---Case of further inquiry---Accused was booked in a case under Ss.10 & 19 Offence of Zina (Enforcement of Hudood) Act (V of 1985), with the allegation that he had abducted the victim and committed zina-bil-jabr with her---Record showed that complainant remained silent for a considerable time and lodged the FIR at a belated stage, for which no plausible explanation had been brought on the record---Although, in such like cases, delay was not always fatal for the prosecution, however, there must be some reasoning for not approaching the concerned investigation agency for initiating the legal proceedings---Record showed that originally the victim implicated the accused-petitioner and other co-accused, but while getting her statement recorded under S.164, Cr.P.C., she had changed her version and only implicated the accused-petitioner---Allegedly, victim got pregnant in the result of the occurrence but she never disclosed the fact for a long time for the reasons best known to her---Out of eight accused persons only the petitioner had been challaned, whereas the others had been discharged, which made the case one of further inquiry, as envisaged under S. 497(2), Cr.P.C.---Petitioner was behind the bars for more than four months and was not required for further investigation---No useful purpose would be served while keeping the accused-petitioner in jail for indefinite time, in circumstances---Bail was allowed, in circumstances.

(b) Criminal trial---

----Bail---Benefit of doubt---Principle---Benefit of doubt, even at bail stage, must be extended to the accused, as a matter of right.

Farooq Hussain Kashmiri, Advocate for Petitioner.

Raja Ayaz Ahmed, Assistant Advocate-General for the State.

Ch. Shaukat Aziz, Advocate for the Complainant.

YLR 2020 SUPREME COURT AZAD KASHMIR 1087 #

2020 Y L R 1087

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

ARSHAD MEHMOOD alias ARSHAD and another---Appellants

Versus

FARZAND BIBI and 29 others---Respondents

Civil Appeals Nos. 183, 197 and 206 of 2018, decided on 3rd April, 2019.

(On appeal from the judgment of the High Court dated 26.7.2018 in Civil Appeal No.4 of 2014)

(a) Land Acquisition Act (I of 1894)---

----S. 18---Qanun-e-Shahadat (10 of 1984), Art. 100---Reference to court---Compensation, enhancement of---Presumption as to documents thirty years old---Making of that part of periodical records which relates to land-owners---Dispute regarding ownership, determination of---Scope---Respondents claimed ownership of certain survey numbers of land acquired by the acquiring agency and alleged that mutation was also attested in favour of their predecessor on the basis of registered sale deed, however, the revenue record was destroyed in the liberation war and that the names of predecessors of appellants were wrongly entered in the revenue record as owners---Referee Judge dismissed the reference for want of proof, however, the High Court allowed the appeal---Validity---Original sale deed was produced by the respondents before the Referee Judge and perusal of the same revealed that mutations were attested on its basis---None of the attesting witnesses of the sale deed were alive, therefore, it was difficult to produce those witnesses before the Referee Judge---Sale deed was a registered document and had also come from proper custody, therefore, High Court had rightly accepted the same on the touchstone laid down in Art. 100 of Qanun-e-Shahadat, 1984, which postulated that where a document was 30 years old and was also produced from proper custody, it would be presumed to have been executed properly---Revenue record pertaining to the villages was destroyed in the liberation war---Subsequent record had no presumption of truth which was maintained by the revenue officials only for day to day business, however, in the recent settlement, the respondents had not got entered the sale deed but the same did not affect their title---Sale deed which was duly registered in accordance with law could not be refused to be acknowledged merely on the ground of delay---Fact that the appellants had not claimed any enhancement of the compensation either by filing a reference before the High Court also led to the conclusion that they by their conduct had admitted the ownership of the respondents over the said land---Dispute regarding the question of title could be resolved by the Referee Judge---Landowner could not be deprived of fair compensation where the land was acquired compulsorily---Supreme Court, while considering the documentary evidence and other circumstances, enhanced the compensation---Appeals were disposed of accordingly.

Mst. Naseem Fatima through Legal Heirs and others v. Sheikh Ala-ud-Din and others PLD 2005 SC 455, Chief Engineer and another v. Anwar Begum and 9 others 2009 CLC 1320 and Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 rel.

(b) Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Scope---Landowner cannot be deprived of the fair compensation where the land is acquired compulsorily.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 rel.

----S. 18---Reference to court---Dispute regarding ownership---Scope---Dispute regarding the question of title can be resolved by the Referee Judge.

Chief Engineer and another v. Anwar Begum and 9 others 2009 CLC 1320 rel.

Ch. M. Suleman, Advocate for Appellants (in Civil Appeals Nos. 183, 197 and 206 of 2018).

Ch. Muhammad Afzal, Advocate for Respondents (in Civil Appeals Nos. 183, 197 and 206 of 2018).

Sheikh Masood Iqbal, Advocate for Respondents Nos.1 and 2 (in Civil Appeal No.206 of 2018).

Ch. M. Suleman, Advocate for Respondents Nos.3, 6, 8 to 11, 13 to 15, 18 to 22 (in Civil Appeal No.206 of 2018).

Ch. Liaquat Afzal, Advocate for Respondent No.22 (in Civil Appeal No.206 of 2018).

YLR 2020 SUPREME COURT AZAD KASHMIR 1134 #

2020 Y L R 1134

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUHAMMAD SHAWAL---Appellant

Versus

SONIA FAROOQ---Respondent

Civil Appeal No. 353 of 2019, decided on 9th October, 2019.

(On appeal from the judgment and decree of the Shariat Appellate Bench of the High Court dated 12.07.2019 in Family Appeal No. 116 of 2019).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 3-G---Suit for jactitation of marriage---Contention of plaintiff was that she was already married and defendant had prepared a fabricated Nikahnama---Suit was decreed concurrently---Validity---Nikah had to be performed in one meeting after proposal and acceptance in presence of witnesses---Muslim female of sound mind who had attained the age of puberty could validly contract marriage with a person of her own choice and she could not sever her marriage/Nikah so entered by her---Marriage would not be invalid in absence of the consent of Wali---Simple acknowledgement of husband and wife with regard to their Nikah was sufficient to prove the same---Court was bound to protect a valid marriage---Plaintiff had acknowledged her Nikah with her earlier husband and there was no alternate for the Court not to believe her statement---Appeal was dismissed in circumstances.

Muhammad Khan v. Muhammad Khaliq and 2 others 2019 SCR 339 and Muhammadan Law by D.F. Mullah ref.

Arif Hussain and another v. State PLD 1982 FSC 42 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 rel.

Ch. Shoukat Aziz, Advocate for Appellant.

Muhammad Sagheer Javed, Advocate for Respondent.

YLR 2020 SUPREME COURT AZAD KASHMIR 1649 #

2020 Y L R 1649

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

ABDUL QAYYUM and 2 others---Petitioners

Versus

The STATE through Advocate General of AJ&K, Muzaffarabad and 12 others---Respondents

Criminal Appeal No. 16 of 2018, decided on 15th March, 2019.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 26.07.2018 in Criminal Appeals Nos. 236 and 242 of 2017).

(a) Criminal trial---

----Circumstantial evidence---Principle---Circumstantial evidence must be inter-linked to make out a single unbroken chain---Benefit of a slightest doubt shaking the roots of the case must be extended to the accused.

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

----S. 154---First information report---Scope---FIR is not a substantive piece of evidence---Main object of the FIR is to bring the law into motion.

----Ss.302(b), 342, 147, 148, 149 & 34---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Motive not proved---Effect---Prosecution case was that the accused party murdered one of the brothers of complainant and threw his dead body at the hill while the other brother might have been killed by them or was in the illegal custody of accused persons---Motive behind the occurrence was stated to be a political rivalry---During investigation, the Investigating Agency established another motive, i.e. that the accused persons killed the deceased to gain the costly herbs from them---One of the Investigating Officers while recording his statement stated altogether a different motive of theft---Motive, held, appeared to be shrouded in mystery, in circumstances.

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

----Ss.302(b), 342, 147, 148, 149 & 34---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Recovery of dead body on the pointation of accused---Reliance---Scope---In the present case, recovery of dead body of the deceased was allegedly made on the pointation of the accused persons---Complainant had stated that when they reached the spot to recover the dead body, 100/200 persons were gathered there---Other recovery witness had stated that when they reached the spot, 50 to 100 persons were already present there---In the presence of said statements, it had been cleared that the accused were not the only persons who knew about the dead body of the deceased rather the Investigating Agency and the people of the locality were also very much aware of the same---Dead body, in circumstances, could not be said to have been recovered on the sole pointation of the convicts---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss.302(b), 342, 147, 148, 149 & 34---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Improvement and contradiction in the statement of witnesses---Scope---Prosecution case was that the accused party murdered one of the brothers of complainant and threw his dead body at the hill while the other brother might have been killed by them or was in illegal custody of accused persons---Complainant and other star witnesses had stated that at the time of recovery of dead body of the deceased, they searched out the whole area but failed to find out dead body of other missing brother of complainant---Later on, the dead body of other missing brother of complainant was recovered just at a distance of three to four meters from the place where the earlier dead body was recovered---Perusal of the statements of the alleged star-witnesses showed that there were material contradictions in the same---After going through the statements, it appeared that the complainant reticulated a net to strengthen the case by making dishonest improvement but the other star-witnesses did not support the story narrated by him---Such a glaring contradiction in the statements of star-witnesses made the prosecution story highly doubtful---Investigating Officer stated that during investigation, he did not find any evidence which connected the accused persons with the commission of offence---Record transpired that a number of persons had been discharged by the police under S. 169, Cr.P.C., and a large number of accused had been acquitted by the Trial Court---Some important witnesses had not been cited in the calendar of witnesses and some of the witnesses cited in the calendar of witnesses, had not been produced---Circumstances established that dishonest improvement had been made by the witnesses---Reliance could not be placed on statements of such witnesses---In the present case, neither the links of the chain of evidence were interconnected nor the prosecution succeeded to prove the case beyond the reasonable doubt---Accused were acquitted, in circumstances.

Hashim Qasim and another v. The State 2017 SCMR 986; Nadeem alias Kala v. The State and others 2018 SCMR 153; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; Afzal Khan and 4 others v. The State 1995 PCr.LJ 1416; Bashir Khan v. The State 1995 SCMR 900; Abdul Khaliq v. Jehangir and another 1999 YLR 1908; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 and Nasrullah v. Shamim Akhtar and 4 others 2010 PCr.LJ 1623 ref.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss.302(b), 342, 147, 148, 149 & 34---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence---Recovery of hatchet---Reliance---Scope---In the present case, a hatchet was recovered but it was not helpful to the case of the prosecution as no sharp edged injury during the post-mortem was found at the bodies of the deceased.

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

----Ss. 302(b), 342, 147, 148, 149 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly, common intention---Appreciation of evidence--- Statement of witnesses recorded under S.164, Cr.P.C.---Scope---In the present case, allegedly, statement of two persons were recorded under S.164, Cr.P.C.---Said persons, later on, were produced before the court by the prosecution--- Said persons while recording their statement had categorically stated that they were in police custody when their statements were recorded---Police badly tortured them and due to the pressure of the police, they had got recorded the false statements---Said persons were declared hostile by the prosecution and cross-examined, but the prosecution failed to shake the confidence of the said witnesses---Judicial Magistrate, who recorded the statements of the said witnesses under S.164, Cr.P.C., appeared before the court and admitted that he did not make any query to the witnesses to ascertain the relevant time they were brought from the police custody or the judicial lock-up---Such statements, which had been got recorded under the pressure of police, could not be read against the accused.

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

----S. 164--- Conviction--- Confessional statement--- Retraction--- Scope---Statement recorded under S.164, Cr.P.C., when retracted by the deposer, strong corroboration and extra-ordinary care is required for awarding conviction on the basis of such statement.

Barrister Humayun Nawaz Khan and Ch. Ghulam Nabi, Advocates for Appellants.

Sardar Karam Dad Khan, Advocate-General and Raja Muhammad Arif Rathore, Advocate for Respondents.

YLR 2020 SUPREME COURT AZAD KASHMIR 2069 #

2020 Y L R 2069

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J., and Raja Saeed Akram Khan, J

ISAM JAN (widow) and 7 others---Appellants

Versus

AFTAB AHMED and 60 others---Respondents

Civil Appeal No. 218 of 2019, decided on 21st February, 2020.

(On appeal from the judgment of the High Court, dated 29.12.2018, in Civil Appeal No. 71 of 2018).

Limitation Act (IX of 1908)---

----Art. 142---Civil Procedure Code (V of 1908), O.VII, R. 6---Specific Relief Act (I of 1877), Ss. 8 & 39---Suit for possession and cancellation of sale-deed---Sale deed executed during period of minority of plaintiff---Limitation---Commencement of---Contention of plaintiff was that he was minor at the time of execution of sale deed---Suit was decreed by the Trial Court against which appeal was dismissed---High Court upheld judgments of Courts below---Validity---Plaintiff was aware of the possession of the suit property by the defendants---Plaintiff was bound to file the suit within a period of twelve years from the date of attaining majority---Nothing was on record as to how plaintiff got knowledge of impugned sale deed---Present suit had been filed after more than fifty years from execution of sale deed---Nothing was on record that plaintiff ever tried for restoration of his possession over the suit land---Plaintiff should have mentioned in the plaint the grounds for exemption from delay in filing of suit but no such element had been mentioned in the same---Suit was time-barred, in circumstances---Impugned judgments and decrees passed by the Courts below were set aside---Suit filed by the plaintiff was dismissed---Appeal was allowed, in circumstances.

Nazeerullah Shah Gardezi v. Jammu and Kashmir Liberation Cell and 6 others 2015 SCR 458; Muhammad Jamroze v. Raja Muhammad Sabir and another 2016 SCR 1150 and Muhammad Anwar Khan and 56 others v. Muhammad Sarwar Khan 8 others 2017 SCR 733 ref.

Lal Begum and 26 others v. Qayyum Khan and 6 others 2016 SCR 107; Kh. Muhammad Shafique and another v. Mahmooda Bibi and 2 others 2016 SCR 493; Muhammad Sadiq v. Muhammad Rafique and 19 others 2016 MLD 2050 and Muhammad Siddique Khan and another v. Zareen Khan 2016 SCR 1712 distinguished.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Sardar Nisar Ahmed Khan, Advocate for Respondents.